openpolitics.com

if a Democratic takeover of the House is to be avoided, the GOP desperately needs the voters who reluctantly pulled the lever for Trump only because he was not Hillary Clinton.

.. You may notice that Mrs. Clinton is not on the ballot this time. Meanwhile, in just the last few days, the president has attacked his attorney general yet again, this time for prosecuting two allegedly corrupt Republican congressmen and thus refusing to politicize the Justice Department; he has conflated himself with the country in absurdly suggesting that an anonymous derogatory op-ed by an administration official might amount to “TREASON,” such that the New York Times should “turn [the author] over to the government at once” for the sake of “National Security”

.. It’s about the Presidency, Not the President
More to the point, these derelictions — the president’s self-supplied fuel for the media narrative of an unhinged chief executive — make it politically risky for Republicans to defend the presidency by defending the president from what appears to be an unwarranted investigation.

.. To be clear, if there is probable cause to believe that Donald Trump was criminally complicit in Russia’s interference in the 2016 election, he must be investigated, and the nation must resign itself to the compromised administration that entails. But we have never been told, much less shown, that this is the case. It is supposed to be established before the investigation commences.

.. administration officials have had to go into their own pockets, paying millions in legal fees to defend themselves and comply with the special counsel’s demands

.. the signal has gone out to the meritorious people we should want to serve in future administrations: Why leave your prestigious, profitable job to serve in government and risk financial and reputational ruin?

.. 1. Rectitude
Mueller’s personal rectitude would be irrelevant. If he or you don’t think so, go ask Ken Starr. In any event, a prosecutor’s personal integrity is never dispositive when he or she commences an investigation, seeks a warrant, or tries an accused. What matters is whether the laws and rules have been satisfied.

2. Special Counsel Neither Necessary Nor Authorized for Investigation of Russia 
If the president were a Democrat, it would be pointed out that to question the special counsel’s criminal investigation of the president is not to question the FBI’s counterintelligence investigation of Russia’s interference in the 2016 election. The latter is vital. No one denies that it should be aggressively pursued to its conclusion.

Moreover, if the counterintelligence investigation were incidentally to turn up concrete evidence that Donald Trump had committed a crime, no one denies that a special counsel appointment would be appropriate at that time. (Get it? Evidence of crime first, then assignment of prosecutor.) But unless and until that were to happen, a counterintelligence investigation does not need a prosecutor at all, much less a special counsel. That is why the aforementioned special-counsel regulations do not authorize an appointment for counterintelligence cases.

.. 3. Conflict of Interest
It is a condition precedent to the appointment of a special counsel that there be a conflict of interest. There is no such conflict preventing the Justice Department from investigating Russian interference in the election. If that were not obvious enough, Mueller himself has elucidated the point by transferring the two indictments he has brought against Russian operatives to Justice Department components — the “Troll Farm” case to the U.S. attorney’s office in the District of Columbia, and the hacking case to Main Justice’s National Security Division. If there were a conflict of interest, it would be inappropriate for the special counsel to make such transfers.

.. But while we’re on the subject of conflicts . . . let’s have a brief look at Mueller’s staff.

.. Of course, for the sake of his own credibility, Mueller is foolish to have stacked his staff with partisans. (Please, spare me the blather about how the Justice Department is not allowed to inquire about party affiliation when hiring. These are not obscure lawyers who applied for a job; they are well-known lawyers whom Mueller recruited into a hyperpolitical case, fully aware that they are activist Democrats.) But there is foolish, and then there is disqualifying. Being a Democrat is not disqualifying.

.. So whom does he turn around and recruit? Well, his chief deputy is Andrew Weissman, and his main legal beagle is Michael Dreeben. They were two of the top officials at the purportedly conflicted DOJ — respectively, chief of the criminal-fraud section and deputy solicitor general. Before her stint as Hillary Clinton’s lawyer, Jeannie Rhee was DOJ’s deputy assistant attorney general. She, like several other members of Mueller’s bloated staff, comes to the task of investigating the president either directly from the purportedly conflicted Justice Department or after a brief stint in private practice.

.. In any proper special-counsel investigation, it would be worth asking why, if the Justice Department is too conflicted to handle the case, its top officials are an ethical fit to staff the case. In this particular investigation, however, the actions of the Justice Department (and the FBI)

..  Weissman’s adulation of former acting attorney general Sally Yates for insubordinately defying the president on an enforcement matter, is it not worth asking why Attorney General Jeff Sessions had to recuse himself but Weissman gets to run the investigation?

.. If a Democrat were in the White House, it wouldn’t happen. Because if a Democrat were in the White House, and Weissman & Co. were Republicans transferred over from the Republican DOJ now under investigation, congressional Democrats would be screaming that there was no conflict of interest warranting the appointment of a special counsel, and that the only apparent conflict involved the prosecutors. And Republicans sages would be meekly agreeing — as would I (less meekly, I hope).

.. There is one thing and one thing alone that would justify the appointment of a special counsel: concrete evidence that Donald Trump committed a crime in connection with Russia’s election interference. So, to repeat: For precisely what federal crime is the president of the United States under investigation?