Washington DC is atwitter with the news that Special Counsel Robert Mueller III has submitted his report to Attorney General William Barr. If the report does anything short of fully exonerating the president of colluding with the Russians, Americans will have every reason to be outraged at the abuse of the office of special counsel for corrupt and political ends.
The damage has been incalculable. Let’s walk through a few grievances that Americans have with Mueller.
1. Inability to Recover from a Terrible Start
Was the Mueller probe about investigating a crime or a means of exacting political revenge? One clue is that the regulations guarding against the former were not observed.
28 CFR § 600.1 provides the grounds for appointing a special counsel. The original purpose is supposed to be a “criminal investigation” that presents a “conflict of interest for the Department.” Former attorney general Jeff Sessions, a Donald Trump nominee, was pushed aside on a spurious conflict-of-interest theory in favor of the even more-conflicted Deputy Attorney General Rod Rosenstein.
Rosenstein granted the special counsel sweeping authority to pursue any “links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” If that wasn’t broad enough, Rosenstein added jurisdiction over “any matters that arose or may arise directly from the investigation.”
Thus, the initial appointment memo gave the special counsel license to investigate anyone connected to the Trump campaign over anything that “may arise” from the investigation. In other words, “here’s a list of people involved in the Trump campaign—go find something on them.”
This is also a violation of 28 CFR § 600.4, which provides that the special counsel is supposed to be appointed with a “specific factual statement of the matter to be investigated.” The “other matters that may arise” jurisdiction is not supposed to be granted in advance. Under 28 CFR § 600.4(b), the special counsel is supposed to consult with the attorney general, who will determine whether to include the additional matters or refer them to the regular prosecutors with jurisdiction.
Thus, for example, the Paul Manafort and Michael Flynn prosecutions should not have been included in the original mandate and should have required a determination that a local U.S. attorney would be conflicted from accepting or declining those cases. In reality, the special counsel used those prosecutions in an unsuccessful bid to coerce witnesses to turn on the president.
Under 28 CFR § 600.3, Rosenstein was supposed to name “a lawyer with a reputation for integrity and impartial decisionmaking…selected from outside the United States Government.” Mueller was, at the time of his appointment, technically outside the federal government only just barely. Trump had just rejected Mueller to fill the very same vacancy created by Trump firing former FBI director James Comey.
Mueller also had a prior relationship with both Rosenstein and later Mueller probe lawyer Andrew Weissmann. Weissmann had already been involved in the investigation so long that he received some of the very first briefings from Bruce Ohr with the early drafts of Christopher Steele’s dossier.
Weissmann’s prominent role in the investigation before and after the appointment of Mueller is definitely a violation of the spirit of the regulation and has destroyed any sense that the real investigators were “impartial.” There are many reasons to question the impartiality of the Mueller team, as I show here.
2. Key Items that Should Be Inside the Report
According to Barr’s letter to Congress, the report is a “confidential report explaining the prosecution or declination decisions [Mueller] has reached.” Thus, the report should only be expected to identify the cases accepted and declined. The report should only contain a response to the original mandate—whether the Trump campaign coordinated with the Russian government.
Since the Mueller investigation leaked so much, we can say with some confidence that the answer to that question is “no.” The prosecutions of the Russian hacking cases have been referred to the U.S. Attorney’s Office for the Western District of Pennsylvania (for some reason), and the Mueller report should not comment upon that prosecution beyond the public indictment.
The cases involving Manafort, George Papadopolous, Flynn, and Richard Gates have all resulted in convictions with statements of offenses that should speak for themselves. None of those cases prove or disprove the original mandate. Arguably, the special counsel should have given all of those cases to the main Department of Justice to accept or decline instead of making more “get Trump” notches on their gun belt.
The report should say little of those cases. And the report should not contain damning innuendo against targets who were not charged.
3. Explanation about Why the Report Took so Long
In the recent third season of “Billions,” the story depicts a U.S. Attorney for the Southern District of New York opening a bogus investigation into his boss in order to entice interference and obstruction. The plan almost works, until the boss figures it out and fires the U.S. attorney. This seems uncannily like what could have happened in real life with the Russia hoax.
Remember, we’re supposed to believe that our president was a puppet of the president of Russia. If so, why did it take Mueller two years to report back to the American people on that? Shouldn’t this have been a national emergency?
Author Lee Smith quoted one congressional source who said, “It’s not an investigation, it’s leverage,” referring to the Washington DC trick of protecting one’s job by investigating one’s boss. The simple answer is that Mueller has never really believed the dossier but that the entire special counsel was a trap to entice the president into over-reacting.
The report had better have a good explanation for dragging America through two years of investigation. If it is an exoneration, I’ll look carefully for a valid explanation for Mueller waiting this long to admit to as much.
4. What About Fusion GPS?
Although not in his direct mandate, one cannot escape the fact that this entire special counsel effort began with a dossier procured by Hillary Clinton to defeat and (later) inflict revenge on Trump. It is very bad thing for a democratic republic that a candidate can lose an election but then hamstring her opponent’s ability to govern with some political opposition research.
This is the first election in American history in which we very nearly did not have a peaceful transfer of power. This cannot happen again, and if it does, it will be worse next time.
While I applaud the termination of the special counsel political revenge squad, this will not be the end of this issue. The Department of Justice needs some serious reform or it will simply become more emboldened and more out-of-control in future elections.
The irony out of all of this is that Vladimir Putin got his start taking over Russia using some of the same techniques used against Trump.