Andrew C. McCarthy
What’s the legal basis for his special-counsel investigation? We have a right to know.
For precisely what federal crimes is the president of the United States under investigation by a special counsel appointed by the Justice Department?
It is intolerable that, after more than two years of digging — the 16-month Mueller probe having been preceded by the blatantly suspect labors of the Obama Justice Department and FBI — we still do not have an answer to that simple question.
Deputy Attorney General Rod Rosenstein owes us an answer.
To my mind, he has owed us an answer from the beginning, meaning when he appointed Special Counsel Robert Mueller on May 17, 2017. The regulations under which he made the appointment require (a) a factual basis for believing that a federal crime worthy of investigation or prosecution has been committed; (b) a conflict of interest so significant that the Justice Department is unable to investigate this suspected crime in the normal course; and (c) an articulation of the factual basis for the criminal investigation — i.e., the investigation of specified federal crimes — which shapes the boundaries of the special counsel’s jurisdiction.
This last provision is designed to prevent a special counsel’s investigation from becoming a fishing expedition — or what President Trump calls a “witch hunt,” what DAG Rosenstein more diplomatically disclaims as an “unguided missile,” and what Harvard’s Alan Dershowitz, invoking Lavrentiy Beria, Stalin’s secret-police chief, pans as the warped dictum, “Show me the man and I’ll show you the crime.” In our country, the crime triggers the assignment of a prosecutor, not the other way around.
Trump Makes It Hard to Defend Trump
Sound reasons undergird the regulations. If a Democrat were in the White House, we would know them by heart at this point. Republicans once knew them well, too. That was before Donald Trump’s character flaws had them shrugging their shoulders, resigned that he deserves to be investigated whether he committed a crime or not.
Yet, the rationale for the regulations relates to the presidency, not to the man or woman who happens to occupy the office at a particular time. It is too debilitating to the governance of the United States, to the pursuit of America’s interests in the world, for us to permit imposing on the presidency the heavy burdens of defending against a criminal investigation unless there is significant evidence that the president has committed a serious crime.
As illustrated by this week’s hearings on the Supreme Court nomination of Brett Kavanaugh, Democrats are too Trump-deranged in this moment to recognize their interest in avoiding a prosecutor’s cloud over future Democratic administrations. (Of course, they probably calculate that no Democratic attorney general would appoint a special counsel, no matter the evidence, and that the media would compliantly play along.) It is therefore up to Republicans to respond to the damage being done to the office. This can be hard to do.
If policy were all that mattered, the Trump presidency would be a rousing success. The economy is humming. The yokes of tax and regulation have been eased to the extent that, despite tariff hijinks, unemployment has plummeted and employers have trouble filling positions. Meanwhile, the federal courts are being stocked with exemplary jurists who, for decades, will be faithful stewards of the Constitution.
As the Wall Street Journal’s Dan Henninger observes, the president’s loyal base, consisting of roughly a third of the voting public, is going to be with him and, presumably, with Republicans. Still, 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”; and he has used Communist North Korea’s murderous anti-American dictator Kim Jong-un as a character reference. If this is the plan for turning out the Trump-skeptical vote, I respectfully suggest that it needs rethinking.
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.
Meantime, not only have millions of public dollars been expended on Mueller’s investigation; 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. Executive officials have been forced to deal with Congress and foreign leaders while hamstrung by criminal suspicion of the president. Trump aside, 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?
Congressional Republicans are letting this happen because they don’t want to stick their necks out for Donald Trump. Yet this is not solely about Donald Trump, much as he seems determined to frame it that way. It is about a constitutional office that is far more critical than any current incumbent.
Questioning the Legitimacy of Mueller’s Investigation
Echoing Democrats, Republicans say Robert Mueller, a patriotic and honorable man, should be allowed to finish his work. Let’s take Trump the lightning-rod out of the equation. If we were to pretend that the president is a Democrat, what would be made of that claim?
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. To the contrary, there is no reason why DOJ could not have investigated these cases in the normal course — if there is a “normal course” for a pair of publicity-stunt cases that will never be prosecuted.
But while we’re on the subject of conflicts . . . let’s have a brief look at Mueller’s staff.
The president is in the habit of ranting about “17 angry Democrats.” As is often the case, this misses the point. There is nothing wrong per se with a president’s being investigated by prosecutors registered with the opposition party. 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.
Still, we must ask, Why was Mueller appointed? Supposedly, because DOJ was too conflicted. 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) in commencing and pursuing the Trump/Russia probe are themselves under investigation by the Justice Department and its inspector general, and by several congressional committees. Under those circumstances, how is it appropriate to staff a special-counsel probe, which is premised on avoiding a conflict of interest, with lawyers who were top officials in the Justice Department whose conduct of the same probe is itself under investigation? If we pretend that the president is a Democrat, and we throw in for good measure 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).
What Is the Crime?
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?
DAG Rosenstein owed us an explanation of this on Day One. He and Mueller’s staff have evaded this obligation by arguing that nothing in the special-counsel regulations requires a public recitation of the factual basis for the investigation. More haughtily, they claim that the special-counsel regulations are not enforceable — they’re just hortatory guidelines that DOJ may flout at will.
Allow me to translate: Rosenstein claims that the Justice Department’s desire for investigative secrecy takes precedence over the president’s capacity to govern.
This, notwithstanding that in every independent-counsel investigation since Watergate, the president and the public have been apprised of exactly what crimes necessitated an investigation. And notwithstanding the Supreme Court’s rationalization, in Morrison v. Olson (1988), that the constitutionally dubious statute (since lapsed) authorizing an independent counsel passed muster because, prior to the appointment, the Justice Department first carefully established evidence of specific criminal-law violations.
That is preposterous. Investigative secrecy should never have had pride of place where the presidency is at stake. After 16 months, there is no excuse for it.
The Rosenstein Memo . . . and the Steele Dossier
It is no answer that Rosenstein has given Mueller a supplemental memorandum (dated August 2, 2017) purportedly fleshing out the factual basis for the investigation. This memorandum, too, has been almost completely withheld from Congress and the public. Furthermore, from what little we know of it (the passages unsealed in connection with the prosecution of Paul Manafort for crimes unrelated to Russia’s election-meddling), it is inadequate.
As I have previously noted, it appears that the Rosenstein memo merely asserts that there are “allegations” that crimes may have been committed. It does not provide a factual basis for believing these allegations are true.
The Justice Department claims the memo cannot be unsealed without compromising the investigation and potentially prejudicing uncharged people. The latter concern could easily be addressed by redacting the names — except, of course, the president’s, if it appears. (Remember, the point here is to determine if the president is under investigation, and for what crime.) Thus I suspect there is a more controversial reason for Rosenstein’s obstinacy: Unsealing would reveal that the memo relies on the Steele dossier — the unverified opposition-research project sponsored by the Clinton campaign.
What makes me say so? Well, here is one of the two passages that Rosenstein, under court pressure, has deigned to let us read: Mueller is authorized to investigate:
Allegations that Paul Manafort . . . Committed a crime or crimes by colluding with Russian government officials with respect to the Russian government’s efforts to interfere with the 2016 election for President of the United States of America, in violation of United States law.
To date, Manafort, like every other Trump-campaign official, has never been charged with a crime related to Russia’s interference in the 2016 election. Now, the Steele dossier is not the only “collusion” evidence against Manafort. There has been public reporting that, while he was Trump’s campaign chairman, Manafort furtively offered briefings on the campaign to Oleg Deripaska, an oligarch known to be close to Vladimir Putin (but intriguingly discussed as if he could be, or become, a Western intelligence asset in emails between dossier author Christopher Steele and top DOJ official Bruce Ohr). If true, this claim of Manafort’s offer to Deripaska is unseemly and suspicious, but it does not establish a crime. Manafort is also known to have been present at the June 2016 Trump Tower meeting, arranged by Donald Trump Jr. in hopes of scoring campaign dirt on Hillary Clinton from the Russian government. Again, unseemly, but not a crime per se (unless the campaign-finance laws are stretched in a way that would implicate many, many campaigns). No, the only publicly known, unambiguous allegation that Manafort was enmeshed in a criminal conspiracy involving the Trump campaign and Russia is sourced to the Steele dossier.
We know that in June 2017, a month after appointing Mueller, Rosenstein relied heavily on the Steele dossier in approving a FISA surveillance-warrant application (targeting former Trump campaign adviser Carter Page). Is it not reasonable to suspect that, less than two months after signing off on the warrant application, he would again rely on the Steele dossier in amplifying the basis for Mueller’s investigation?
More questions: Did Rosenstein have evidence other than the Steele dossier to support this criminal-collusion allegation against Manafort? Does the deputy attorney general acknowledge relying on the Steele dossier in his memo to Mueller? Are there other allegations in the Rosenstein memo that mirror the Steele dossier’s sensational, uncorroborated claims? Is Donald Trump named in the memo?
Mueller’s Report . . . about What?
The last question is the pertinent one. Reuters reported back in April of this year that Rosenstein assured Trump that he is not a “target” of Mueller’s probe. Even if true, that would not mean the president is not a subject of the probe. If he’s not, why wouldn’t we have been told that? Why hasn’t it been announced that the Trump aspect of the investigation is closed — if, indeed, it was ever open?
We have to assume that Trump is and has been under criminal investigation, even if there is not and has never been a crime.
It is frequently noted that, as special counsel, Mueller is expected to provide a report to Rosenstein, who will then decide what parts of the report to share with Congress and the public. This is said to explain why Mueller is being so thorough: He must be comprehensive even if he finds no prosecutable crimes.
Democrats, of course, anticipate that such a thoroughgoing, narrative report will form the basis for an impeachment of the president. Impeachment does not require proof of courtroom-prosecutable misconduct, but of any misconduct Congress might determine is — or might inflate into — high crimes and misdemeanors. The idea is that, despite the absence of penal offenses, Mueller will find discreditable and erratic behavior, which, post-midterms, a Democratic-controlled House can whip into “collusion” and “obstruction” for purposes of impeachment articles.
We go back, however, to first principles. The way this is supposed to work, the Justice Department must describe the factual basis for specified crimes – not discreditable, erratic behavior; crimes – that the special counsel is authorized to investigate. If the special counsel wants to investigate other crimes, he is supposed to ask for his jurisdiction to be expanded. When the special counsel writes his report, it is supposed to be about why prosecution of those crimes should be authorized or declined. That’s it. Mueller is a prosecutor working for the Justice Department, not counsel for a congressional impeachment committee. His task is to report his prosecutorial decisions about crimes he has been authorized to investigate because the Justice Department is conflicted; it is not to hold forth on his assessment of Donald Trump’s overall comportment and fitness to be president. That is for voters, or their elected representatives, to determine.
So what are the suspected crimes committed by Donald Trump that Mueller has been authorized to investigate, and what was the factual basis for Rosenstein’s authorization of this investigation?
We still haven’t been told.
The anti-Trump Left decries all criticism as an effort to “delegitimize” and “obstruct” the Mueller investigation. But no one is questioning the investigation of Russia’s interference in the election. We are questioning why a special counsel was appointed to investigate the president of the United States. It is the Justice Department’s obligation to establish the legitimacy of the appointment by explaining the factual basis for believing a crime was committed. If there is no such basis, then it is Mueller’s investigation that is delegitimizing the presidency and obstructing its ability to carry out its constitutional mission — a mission that is far more significant than any prosecutor’s case.
We’re not asking for much. After 16 months, we are just asking why there is a criminal investigation of the president. If Rod Rosenstein would just explain what the regs call for him to explain — namely, the basis to believe that Donald Trump conspired with the Kremlin to violate a specific federal criminal law, or is somehow criminally complicit in the Kremlin’s election sabotage — then we can all get behind Robert Mueller’s investigation.
But what is the explanation? And why isn’t the Republican-controlled Congress demanding it?