The record from Lawrence Walsh to
Ken Starr to Patrick Fitzgerald suggests otherwise. Originally narrow mandates
inevitably expand — on the cynical theory that everyone has something
embarrassing to hide. Promised “short” timelines and limited budgets are
quickly forgotten. Prosecutors search for ever new crimes to justify the
expense and public expectations of the special-counsel appointment.
Soon the investigators need to be
investigated for their own conflicts of interest, as if we need special-special
or really, really special prosecutors. Special investigations often quickly turn
Soviet, in the sense of “Show me the man and I’ll find you the crime.”
Special Counsel Robert Mueller has
led what seems to be an exemplary life of public service. No doubt he believes
that as a disinterested investigator he can get to the bottom of the once
contentious charge of “Russian collusion” in the 2016 election. But can he?
A Mandate Gone Wild
Something has gone terribly wrong with the Mueller investigation.
The investigation is venturing well
beyond the original mandate of rooting out evidence of Russian collusion.
Indeed, the word “collusion” is now rarely invoked at all. It has given way to
its successor, “obstruction.” The latter likely will soon beget yet another
catchphrase to justify the next iteration of the investigations.
There seems far less special
investigatory concern with the far more likely Russian collusion in the matters
of the origins and dissemination of the Fusion GPS/Steele dossier, and its
possible role in the Obama-administration gambit of improper or illegal
surveilling, unmasking, and leaking of the names of American citizens.
Leaks from the Mueller investigation
so far abound. They have seemed calibrated to create a public consensus that
particular individuals are currently under investigation, likely to be indicted
— or indeed likely guilty.
These public worries are not groundless.
They are deeply rooted in the nature and liberal composition of the Mueller
investigative team — whose left-leaning appointments just months ago had
understandably made the liberal media giddy with anticipation from the outset. Wired,
for instance, published this headline on June 14: “Robert Mueller Chooses His
Investigatory Dream Team.” Vox, on August 22, wrote: “Meet the all-star
legal team who may take down Trump.” The Daily Beast, two day later,
chimed in: “Inside Robert Mueller’s Army.”
Whose ‘Army,’ Whose ‘Dream Team,’
and Whose ‘All-Stars’?
Special Counsel Mueller was himself appointed in rather strange circumstances.
Former FBI director James Comey (now reduced to ankle-biting the president on
Twitter with Wikipedia-like quotes) stated under oath that he had deliberately
leaked his own confidential notes about conversations with President Trump,
hoping to prompt appointment of a special investigator to investigate a
president — whom he said, also under oath, that he was not investigating.
Comey’s ploy worked all too well.
Department of Justice officials, now in the Trump Justice Department but who
once served in Barack Obama’s administration, selected Comey’s close friend and
long associate Robert Mueller as investigator. From that germination, an innate
conflict of interest was born — given that Mueller’s appointment assumed that
Comey himself would not come under his own investigation, a supposition that
may be increasingly untenable.
Okay — but one such conflict of
interest swallow does not make a discredited spring.
But then there was the weird position of Comey subordinate and
deputy director of the FBI Andrew McCabe. He ran the Washington, D.C., office
that was involved in the Clinton email investigations. For some strange reason,
McCabe did not recuse himself
from the email investigation until one week before the presidential election,
even though just months earlier his wife, Jill McCabe, had announced her
Democratic campaign for a state senate seat in Virginia — and had received a
huge donation of more than $675,000 from the political organizations of
Governor Terry McAuliffe, a longtime Clinton supporter and intimate. Like it or
not, the behavior of the FBI during the Clinton email investigations also
extends to the Russian-collusion probe, especially as it pertains to the Clinton-funded
Fusion GPS/Steele dossier.
Okay — Washington is an incestuous
place, and such conflicts of interest may be unavoidable. Perhaps McCabe
himself was not really so directly involved in the FBI investigations of
Clinton, and perhaps he had not even talked about the current Mueller
investigations.
But then it was announced that at least six of Mueller’s staff of 15
lawyers, who previously had donated (in some cases quite generously) to Hillary
Clinton’s campaigns, were now investigating her arch foe Donald Trump.
Okay — no doubt, such apparent
conflicts of interests are not what they seem (given the overwhelming
preponderance of liberal lawyers in general and in particular in Washington).
After all, no one should be disqualified from government service for his or her
political beliefs.
But then we came to the inexplicable case of Peter Strzok, an FBI
investigator assigned to the Mueller investigation of Russian collusion. Strzok
and Lisa Page, a consulting FBI lawyer (part of Mueller’s once-ballyhooed
“dream team”), were for some reason relieved from the investigation of Trump in
late summer 2017. Mueller’s office refused to explain the departure of either,
other than to let the media assume that the departures were both unrelated and
due to normal revolving or transient appointments.
Okay — even dream-teamers and
all-stars occasionally move on, and the less said, the better.
But then we learn that the two, while part of Mueller’s
investigation of Trump, were having an extramarital affair, and exchanging some
10,000 texts, of which at least some were adamantly anti-Trump and pro-Clinton.
One wonders, Why did that information, now confirmed, come out through leaks
rather than through official Mueller communiqués? In other words, if there is
nothing now deemed improper about the two Trump investigators’ amorous
political expressions or in the anti-Trump nature of their exchanges, why was
there apparently such a reluctance in August and September to avoid full
disclosure concerning their abrupt departures?
Okay — perhaps indiscreet electronic
communications and affairs in the workplace are no big deal in Washington.
But then Strzok apparently was also responsible for changing the
wording of the official FBI report on the Clinton email affair. He crossed out
the original finding of “grossly negligent,” which is legalese that under the
statute constitutes a crime, and replaced it with “extremely careless,” which
does not warrant prosecution.
Okay — perhaps we can shrug and
suggest that Strzok surely did not have the final say in such verbal
gymnastics. Or perhaps his anti-Trump, pro-Clinton sentiments were not germane
to his mere copy editing or his reliance on a thesaurus.
But then we learned that Andrew Weissmann, who is another veteran
prosecutor assigned to Mueller’s legal team, praised Sally Yates, an
Obama-administration holdover at the Trump Department of Justice, for breaking
her oath of office and refusing to carry out President Trump’s immigration
order (Yates was summarily fired). “I am so proud,” he emailed Yates, on the
day she publicly defied the president. “And in awe. Thank you so much. All my
deepest respects.”
Okay — it certainly does not look
good that a disinterested government attorney investigating the president was
so indiscreet as to write his admiration to a fellow Obama holdover who was
fighting with Trump. But to give the anti-Trump attorneys the benefit of the doubt,
perhaps Weissmann was merely reacting to Yates’s panache rather than to her
shared political views?
But then again, we learned that another attorney on the Mueller
staff, Jeannie Rhee, was at one time the personal attorney of Ben Rhodes, the
Obama deputy national-security adviser who is often mentioned as instrumental
in making last-minute Obama-administrative-state appointments to thwart the
incoming Trump administration. Rhee also provided legal counsel to the Clinton
Foundation and was a generous donor to Hillary Clinton’s presidential campaign.
Rhee seemingly could not be a
disinterested investigator of Trump, given that she has had financial interests
with those, past and present, who are fiercely opposed to the current likely
target of her investigations.
Okay — but perhaps in Washington’s
upside-down world, lawyers are mere hired guns who have no real political
loyalties and they investigate, without bias, those whose politics they detest.
Why should they feel a need to be shy about their political agendas?
But then again, most recently, it was disclosed that a senior
Justice Department official, Bruce G. Ohr, connected with various ongoing
investigations under the aegis of the Justice Department, was partially
reassigned for his contact with the opposition-research firm responsible for
the Clinton-funded, anti-Trump “dossier” — which in theory could be one
catalyst for the original FBI investigation of “collusion” and thus
additionally might be the reason cited to request FISA orders to surveil Trump
associates during the 2016 campaign.
And note that it was also never
disclosed that Ohr’s wife, Nellie Ohr, whose expertise was Russian politics and
history, actually worked for Fusion GPS during the 2016 campaign, when the
opposition research firm’s discredited anti-Trump dossier alleging Russian
collusion was leaked shortly before Election Day 2016.
Okay — perhaps Ohr, as part of his
job, was merely learning about aspects of the dossier from one of its owners,
for future reference.
But then again, we learned of the strange career odyssey of yet
another person on Mueller’s legal team, Aaron Zebley (supposedly known in the
past as Mueller’s “right-hand hand”). He once served as Mueller’s chief of
staff while employed at the FBI and was also assigned to both the FBI’s
Counterterrorism Division and the National Security Division at the Department
of Justice. In addition, Zebley served as an assistant U.S. attorney in the
National Security and Terrorism Unit in Virginia. Yet Zebley, as late as 2015,
represented one Justin Cooper.
The latter was the IT staffer who set up Hillary
Clinton’s likely illegal and unsecure server at her home, and who purportedly
smashed Clinton’s various BlackBerries with a hammer in fear they would be
subpoenaed. Zebley had come into contact once earlier with congressional
investigators, when he was legal counsel for Cooper — and yet Zebley now is on
Mueller’s team investigating Donald Trump.
What’s Next?
By now there are simply too many coincidental conflicts of interest and too
much improper investigatory behavior to continue to give the Mueller
investigation the benefit of doubt. Each is a light straw; together, they now
have broken the back of the probe’s reputation.
In inexplicable fashion, Mueller
seems to have made almost no effort to select attorneys from outside
Washington, from diverse private law firms across the country, who were without
personal involvement with the Clinton machine, and who were politically astute
or disinterested enough to keep their politics to themselves.
Indeed, the special-counsel
investigation has developed an eerie resemblance to the spate of
sexual-harassment cases, in which the accused sluff off initial charges as
irrelevant, unproven, or politically motivated, only to be confronted with more
fresh allegations that insidiously point to a pattern of repeated behavior.
What then is going on here?
No one knows. We should assume that
there will be almost daily new disclosures of the Mueller investigation’s
conflicts of interest that were heretofore deliberately suppressed.
Yet Donald Trump at this point would
be unhinged if he were to fire Special Counsel Mueller — given that the
investigators seem intent on digging their own graves through conflicts of
interest, partisan politicking, leaking, improper amorous liaisons, indiscreet
communications, and stonewalling the release of congressionally requested
information.
Indeed, the only remaining
trajectory by which Mueller and his investigators can escape with their
reputations intact is to dismiss those staff attorneys who have exhibited clear
anti-Trump political sympathies, reboot the investigation, and then focus on
what now seems the most likely criminal conduct: Russian and Clinton-campaign collusion
in the creation of the anti-Trump Fusion GPS dossier and later possible U.S.
government participation in the dissemination of it.
If such a
fraudulent document was used to gain court approval to surveil Trump
associates, and under such cover to unmask and leak names of private U.S.
citizens — at first to warp a U.S. election, and then later to thwart the work
of an incoming elected administration — then Mueller will be tasked with
getting to the bottom of one of the greatest political scandals in recent U.S.
history.
Indeed, his legacy may not be that he welcomed in known pro-Clinton,
anti-Trump attorneys to investigate the Trump 2016 campaign where there was
little likelihood of criminality, but that he ignored the most egregious case
of government wrongdoing in the last half-century.
NRO contributor Victor Davis Hanson
is a senior fellow at the Hoover Institution and the author of The Second World Wars: How the First
Global Conflict Was Fought and Won, released in October from
Basic Books.
