Mueller Is Circling the Drain

Certain aspects of the process whereby Robert Mueller was appointed special counsel challenge the legitimacy of the entire undertaking.  To understand them, we must dip into the legalese surrounding the appointment process, but at least that weighty language is mercifully short.

Please read Rod Rosenstein's letter appointing Robert Mueller as special counsel.  It is readily available online.  The following quotation from the letter extracts its essence:

By virtue of the authority vested in me as acting Attorney General . . . , I hereby order as follows:

(a)  Robert S. Mueller is appointed to serve as Special Counsel for the United States Department of Justice.

(b)  The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on intelligence on March 20, 2017, including:

(i)  Any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and

(ii)  Any matters that arose or may arise directly from the investigation; and

(iii)  Any other matters within the scope of 28 C.F.R. § 600.4(a).

(c) ...

(d) § 600.4 through 600.10 of title 28 of the Code of Federal Regulations are applicable to the Special Counsel.

The first thing to notice is that Rosenstein's letter explicitly directs Mueller to investigate Trump-Russia collusion and only incidentally extends his investigatory purview to other matters.  In short, it does not say Mueller should investigate general Russian government efforts to meddle in our election process.  Mueller was free to investigate Russian meddling, but his only true directive was to investigate the Trump campaign.

Recent babble about how the Mueller report did wonderful things to expose Russian misdeeds that did not involve the Trump campaign is misdirectional nonsense.  Mueller was never directed to look into Russian meddling in our election, and he never felt disposed to do such a thing in a serious way.  It is true that he indicted a bunch of Russians for their social media shenanigans, but that was a superficial effort.  We have not had a thorough investigation into how Russia tried to subvert our election process.

The second thing to notice in Rosenstein's letter is that it explicitly defines the special counsel's work as a continuation of Crossfire Hurricane — the FBI counterintelligence investigation of the Trump campaign.  Every day now, new releases of previously hidden information are exposing that investigation as an effort to frame the Trump campaign using a fabricated predicate that had no concrete basis.  Crossfire Hurricane is proving to be a central element in the bloodless coup that conservatives now believe was launched to topple Trump, so it follows that the Mueller investigation is complicit.  Most conservatives already think this is the case, but Rosenstein's letter perhaps makes it possible to hold Mueller and his partisan crowd of investigators legally responsible to some degree.

Since the Mueller investigation was nothing more than an extension of Crossfire Hurricane, it logically follows that the key FBI investigators conducting Crossfire Hurricane were obliged to brief Mueller on everything they had done and everything they had discovered up to then.  This would necessarily include information regarding the specific crime that was used to justify opening up Crossfire Hurricane.  Given the details we now know about how George Papadopoulos was set up in a sting operation involving "friendlies" rather than Russkies, that basis has been discredited.  Given the details we now know about how salacious and unverified — and indeed utterly untruthful — the Clinton-Steele dossier is, the FBI will not be able to use it as the justification for initiating Crossfire Hurricane.

Mueller had to have been informed of these matters at the time he started his investigation.  He must have known from the start that Crossfire Hurricane was an illegal undertaking, but he did nothing to expose it.  Mueller must be investigated.  Ironically, he might be guilty of obstructing justice by misdirecting his own investigation.

In addition, there is the messy fact that Peter Strzok, who was the lead investigator for Crossfire Hurricane, was recruited into the Mueller investigation at its outset. Strzok had to have briefed Mueller on the details of Crossfire Hurricane; he had to have confessed the lack of any evidence of Trump-Russia collusion.  He had already put himself on record as having communicated to his paramour Lisa Page that he was reluctant to go to work for the Mueller investigation because "there's no big there there."  Strzok may dance around it, but any reasonable person reviewing the exchanges between those two would have to conclude that Crossfire Hurricane had not found any evidence of conspiracy between Trump and Russia.

One more observation about Strzok: In one of his text messages to Lisa Page, he claimed that in a recent high-level meeting (early August of 2016), an attendee (redacted, of course) had claimed that the White House was directing the investigation.  Strzok pushed back against this contention, but the question is, did Mueller look into this?  Judging from his final report, he did not.

The predicate for Crossfire Hurricane was nonexistent, the investigation itself turned up nothing incriminating during its eight-month existence, and Strzok revealed possible interference from the White House.  Mueller knew all this at the start of his own investigation but nonetheless kept his eye on the designated target.

Two final points: Title 28 of the Code of Federal Regulations contains a section that specifies the conditions under which a Special Counsel may be appointed.

§ 600.1 Grounds for appointing a Special Counsel.

The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted; and

(a) That investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and

(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

There are two points to be made about the grounds for appointing a special counsel.  The first is that (in this case) the acting attorney general has to determine that a criminal investigation is warranted.  Given Rosenstein's letter, he had to have determined that there was compelling evidence that Trump and Russia conspired. He must be pressed to make public the specific nature of that evidence — and if he cannot provide it, then his appointment of a special counsel was illegitimate.

The second point is that appointment of a special counsel is triggered by a conflict of interest within the Department of Justice or some other extraordinary circumstance.  Most likely, Rosenstein will point to an extraordinary circumstance (investigation of a sitting president) as the trigger.  The potential for political bias would be the logical justification for asserting "extraordinary circumstance," in which case Mueller would know that avoidance of even the appearance of political bias was critically important to his investigation.  Given this reality, why did he hire a bunch of Clinton-supporters whose sympathies with the Democrats and Hillary were public knowledge?  Answer: He knew that his only real job was to nail Trump, and for that, he would need investigators like Andrew Weissmann — more interested in successful prosecution than pursuit of the truth.

Image: James Ledbetter via Flickr.

Certain aspects of the process whereby Robert Mueller was appointed special counsel challenge the legitimacy of the entire undertaking.  To understand them, we must dip into the legalese surrounding the appointment process, but at least that weighty language is mercifully short.

Please read Rod Rosenstein's letter appointing Robert Mueller as special counsel.  It is readily available online.  The following quotation from the letter extracts its essence:

By virtue of the authority vested in me as acting Attorney General . . . , I hereby order as follows:

(a)  Robert S. Mueller is appointed to serve as Special Counsel for the United States Department of Justice.

(b)  The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on intelligence on March 20, 2017, including:

(i)  Any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and

(ii)  Any matters that arose or may arise directly from the investigation; and

(iii)  Any other matters within the scope of 28 C.F.R. § 600.4(a).

(c) ...

(d) § 600.4 through 600.10 of title 28 of the Code of Federal Regulations are applicable to the Special Counsel.

The first thing to notice is that Rosenstein's letter explicitly directs Mueller to investigate Trump-Russia collusion and only incidentally extends his investigatory purview to other matters.  In short, it does not say Mueller should investigate general Russian government efforts to meddle in our election process.  Mueller was free to investigate Russian meddling, but his only true directive was to investigate the Trump campaign.

Recent babble about how the Mueller report did wonderful things to expose Russian misdeeds that did not involve the Trump campaign is misdirectional nonsense.  Mueller was never directed to look into Russian meddling in our election, and he never felt disposed to do such a thing in a serious way.  It is true that he indicted a bunch of Russians for their social media shenanigans, but that was a superficial effort.  We have not had a thorough investigation into how Russia tried to subvert our election process.

The second thing to notice in Rosenstein's letter is that it explicitly defines the special counsel's work as a continuation of Crossfire Hurricane — the FBI counterintelligence investigation of the Trump campaign.  Every day now, new releases of previously hidden information are exposing that investigation as an effort to frame the Trump campaign using a fabricated predicate that had no concrete basis.  Crossfire Hurricane is proving to be a central element in the bloodless coup that conservatives now believe was launched to topple Trump, so it follows that the Mueller investigation is complicit.  Most conservatives already think this is the case, but Rosenstein's letter perhaps makes it possible to hold Mueller and his partisan crowd of investigators legally responsible to some degree.

Since the Mueller investigation was nothing more than an extension of Crossfire Hurricane, it logically follows that the key FBI investigators conducting Crossfire Hurricane were obliged to brief Mueller on everything they had done and everything they had discovered up to then.  This would necessarily include information regarding the specific crime that was used to justify opening up Crossfire Hurricane.  Given the details we now know about how George Papadopoulos was set up in a sting operation involving "friendlies" rather than Russkies, that basis has been discredited.  Given the details we now know about how salacious and unverified — and indeed utterly untruthful — the Clinton-Steele dossier is, the FBI will not be able to use it as the justification for initiating Crossfire Hurricane.

Mueller had to have been informed of these matters at the time he started his investigation.  He must have known from the start that Crossfire Hurricane was an illegal undertaking, but he did nothing to expose it.  Mueller must be investigated.  Ironically, he might be guilty of obstructing justice by misdirecting his own investigation.

In addition, there is the messy fact that Peter Strzok, who was the lead investigator for Crossfire Hurricane, was recruited into the Mueller investigation at its outset. Strzok had to have briefed Mueller on the details of Crossfire Hurricane; he had to have confessed the lack of any evidence of Trump-Russia collusion.  He had already put himself on record as having communicated to his paramour Lisa Page that he was reluctant to go to work for the Mueller investigation because "there's no big there there."  Strzok may dance around it, but any reasonable person reviewing the exchanges between those two would have to conclude that Crossfire Hurricane had not found any evidence of conspiracy between Trump and Russia.

One more observation about Strzok: In one of his text messages to Lisa Page, he claimed that in a recent high-level meeting (early August of 2016), an attendee (redacted, of course) had claimed that the White House was directing the investigation.  Strzok pushed back against this contention, but the question is, did Mueller look into this?  Judging from his final report, he did not.

The predicate for Crossfire Hurricane was nonexistent, the investigation itself turned up nothing incriminating during its eight-month existence, and Strzok revealed possible interference from the White House.  Mueller knew all this at the start of his own investigation but nonetheless kept his eye on the designated target.

Two final points: Title 28 of the Code of Federal Regulations contains a section that specifies the conditions under which a Special Counsel may be appointed.

§ 600.1 Grounds for appointing a Special Counsel.

The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted; and

(a) That investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and

(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

There are two points to be made about the grounds for appointing a special counsel.  The first is that (in this case) the acting attorney general has to determine that a criminal investigation is warranted.  Given Rosenstein's letter, he had to have determined that there was compelling evidence that Trump and Russia conspired. He must be pressed to make public the specific nature of that evidence — and if he cannot provide it, then his appointment of a special counsel was illegitimate.

The second point is that appointment of a special counsel is triggered by a conflict of interest within the Department of Justice or some other extraordinary circumstance.  Most likely, Rosenstein will point to an extraordinary circumstance (investigation of a sitting president) as the trigger.  The potential for political bias would be the logical justification for asserting "extraordinary circumstance," in which case Mueller would know that avoidance of even the appearance of political bias was critically important to his investigation.  Given this reality, why did he hire a bunch of Clinton-supporters whose sympathies with the Democrats and Hillary were public knowledge?  Answer: He knew that his only real job was to nail Trump, and for that, he would need investigators like Andrew Weissmann — more interested in successful prosecution than pursuit of the truth.

Image: James Ledbetter via Flickr.