By Michael B.
Mukasey I
The Wall Street Journal
If the investigation arose from partisan
opposition research, what specific crime is he looking into?
The memo released Friday by the
House Permanent Select Committee on Intelligence was the product of necessity,
not choice. Even before its release, the debate over its provenance, motive and
effect was obscuring the crucial point that it is the underlying facts the memo
alleges that present the real issues.
The committee’s memo says that yet
another memo, which goes by the cloak-and-dagger title “Steele dossier,”
provided at least part of the basis for a wiretap of Carter Page, a U.S.
citizen who had volunteered as a foreign policy-consultant to the Trump
campaign. The Foreign Intelligence Surveillance Court granted the wiretap
application from the FBI and Justice Department two weeks before the 2016
election.
In order to obtain the warrant, the government had to show
probable cause that Mr. Page was acting as the agent of a foreign power and
that in so doing he had committed a crime.
The Steele dossier is 35 pages of
opposition research on Donald Trump, described by former FBI Director James
Comey as “salacious and unverified.” It
was paid for by Hillary Clinton’s campaign and the Democratic National
Committee, and compiled by Christopher Steele, a former British intelligence
agent who had a luminous dislike for Mr. Trump and was also an informant for
the FBI.
The House memo reports that the FBI
and Justice Department did not advise the FISA court that the dossier was
funded by the Clinton campaign and the DNC. It
also reports that the government’s cited support for the accuracy of
contentions in the wiretap application—statements in a news article—had
originated in a leak from Mr. Steele himself. Mr. Steele was fired by the FBI
for a later unauthorized disclosure to the press, a cardinal offense by an
informant.
But the FBI continued to receive information from him through a
Justice Department employee whose wife worked for the opposition-research firm
that employed Mr. Steele and was paid by the DNC and Clinton campaign through a
law firm, which acted as a cutout to conceal the source of the payments.
All that and more was known by the
FBI and the Justice Department, according to the House memo, but not disclosed to the FISA court. That is certainly
scandalous, but how consequential it is would seem to depend at
least in part on what role the Steele dossier played in the application for the
warrant.
According to the House memo, the
FBI’s then deputy director testified in December that there would have been
no application for the warrant but for the dossier. The committee’s
Democrats deny he said that. In any case, it appears the Steele dossier played
some role in the FISA application. The dossier, thanks to a long-ago leak, is
publicly available; if you’d enjoy a swan dive into a cesspool, go read it. The
FISA application is not available. How come?
Such applications are at the highest
level of classification. They often contain sensitive intelligence information
that can betray confidential sources and methods; disclosure can severely
damage national security.
But notice that the FBI’s only objection to the
House memo at the time of its release was that it was incomplete, not that it
disclosed sources and methods. Thus it is possible to summarize parts of a
classified document to disclose information relevant to a public issue without
disclosing secrets.
It is also possible to redact a
classified document to the same end. It should be possible to disclose the parts
of the FISA application that are alleged to come from the Steele dossier to see
if there is any there there. That was not done because the FBI and the
Justice Department resisted, and the committee had to make do with a
summary. That is why the memo was a product of necessity, not choice.
Those critical of its release say it
is intended to damage special counsel Robert Mueller’s investigation. How does
possible misconduct by senior FBI officials, which is certainly bad enough,
intersect with the Mueller investigation?
As follows: The Justice Department
regulation that authorizes the appointment of special counsels requires a
determination that a “criminal investigation” is warranted, and that there is a
conflict or other good reason that prevents ordinary Justice Department staff
from conducting it.
The regulation that governs the
jurisdiction of the special counsel requires that he be “provided with a
specific statement of the matter to be investigated.”
The letter from
Deputy Attorney General Rod Rosenstein appointing Mr. Mueller says he is to
“conduct the investigation confirmed by then-Director James Comey before the
House Intelligence Committee on March 20, 2017,” which covers “any links
and/or coordination between the Russian government and individuals associated
with the campaign of President Donald Trump,” and any matters that may arise
“directly” from that investigation.
But the investigation then disclosed
by Mr. Comey was not a criminal investigation; it was a
national-security investigation.
Possible Russian meddling in the 2016
election is certainly a worthy subject for a national-security investigation,
but “links” or “coordination”—or “collusion,” a word that does not appear in
the letter of appointment but has been used as a synonym for coordination—does not define or constitute a crime. The
information, and misinformation, in the Steele dossier relates to that subject.
If partisan opposition research was
used to fuel a national-security investigation that has morphed into a series of criminal investigations, and
the special counsel has no tether that identifies a specific crime, or “a
specific statement of the matter” he is to investigate,
that is at least unsettling.
By contrast, the Watergate, Iran-Contra and
Whitewater investigations, whatever you think of how they were conducted,
identified specific crimes. The public
knew what was being investigated.
Here, none of the charges Mr.
Mueller has brought thus far involved “coordination” or “collusion” with the
Russians.
Mike Flynn and George Papadopoulos
both pleaded guilty to lying to the FBI, the latter over the timing of
conversations with Russians in which he was allegedly offered but never
received “dirt” on Mrs. Clinton, including her emails. He also attempted to set
up a meeting between the Russians and Mr. Trump, but the campaign blew off
that effort.
Notably, Mr. Papadopoulos did not plead guilty to
participating in any plot that involved “coordination.” The Paul Manafort
and Rick Gates indictments charge fraud on the government through receipt of
and failure to disclose payments from a pro-Russian Ukraine politician.
What to do? I believe that at a
minimum, the public should get access to a carefully redacted copy of the
FISA application and renewals, so we can see whether officials behaved
unlawfully by misleading a court; and Mr. Mueller’s mandate should be
defined in a way that conforms with the legal standard of his office.
Both
would go a long way toward assuring that we do more
than talk about a “government of laws.”
Mr. Mukasey served as U.S. attorney
general (2007-09) and a U.S. district judge (1988-2006).
_________________
Commentary
By Frances Rice
When Special
Counsel Robert Mueller was first appointed, we, the members of the National
Black Republican Association, crafted a citizens’ petition to Congress with a
call to terminate Mueller’s appointment, which was made in violation of the law
and our Constitution.
Below is a
reprint of the article I wrote, which includes the text of the petition which is also
posted on this Blog site at:
_________________
By Frances Rice
Photo:
Robert S. Mueller, III by Charles Dharapak from the Associated Press
We must join forces and confront the peril we face from
our Government.
I sounded the alarm bell in the below citizens’ petition
that is also posted on the National Black Republican Association blog and
that of Dr. Rich Swier about how an untenable
precedent has been set for the Government to use its full power to subjugate
us.
The essence of the petition is as follows:
Our laws and Constitution protect each of us from having
our Government use our legal system to destroy us when we have not committed a
crime. Unlike banana republics, we do not use our legal system to punish our
political opponents, simply because we disagree with their ideology.
The concern that prompted the appointment of the Special
Counsel—a legal prosecutor—is whether Russia interfered in our election and the
Trump campaign "colluded" with the Russians to do so. After months of
national security investigations, no evidence of Trump campaign
"collusion" with the Russians has ever been found.
Election interference and collusion are national security
matters, not crimes, and no crimes were alleged when the Special Counsel was
appointed, as is required by the law and our Constitution.
So, bottom line, this appointment violates federal laws,
is contrary to our justice system and puts in jeopardy our Fourth Amendment
right not to have our property and records seized in the absence of our having
committed a crime.
If we fail to grasp the significance of what is happening
and do not take action now to bring this travesty to a crashing halt, then we
deserve to become a subjugated people.
This is a call to action--NOW!!
_________________
Special Counsel Recall
And Accountability Petition (SCRAP)
We, citizens of America, herewith exercise our
right to petition the Government for a redress of grievances
guaranteed by the First Amendment to the United States Constitution, to wit:
Whereas, the Code of Federal Regulations, 28 CFR 600.1 -
Grounds for appointing a Special Counsel, states that 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
Whereas, a Special Counsel
was appointed by the Acting Attorney General without identifying a person who
had committed a crime or a criminal matter that warranted investigation;
instead, the appointment was made to investigate a non-criminal national security
matter. And
Whereas, the appointment of
a Special Counsel, under the above circumstances, creates an unconstitutional
perversion of our criminal justice system, in that, any and all Americans who
have committed no crime can be investigated by a Special Counsel and presumed
“guilty” until proven “innocent” and, thereby, rendered vulnerable to search
and seizures of our persons, houses, paper and effects without probable cause—a
violation of our rights granted by the Fourth Amendment to the Constitution.
And
Whereas, the Code of Federal Regulations, 28 CFR 45.2, states that a Justice
Department employee cannot participate in a “criminal investigation or
prosecution if he has a personal or political relationship with …Any person or
organization substantially involved in the conduct that is the subject of the
investigation or prosecution.” And
Whereas, in violation of 28 CFR
45.2, the Special Counsel appointed by the Acting Attorney General has both a personal and
political relationship with a key witness, as well as has hired lawyers to
assist with the investigation who have made financial contributions to and
performed legal services for the individual deemed to have been harmed by the
non-criminal national security matter being investigated by the Special
Counsel. And
Whereas, in light of the
aforementioned, we, American citizens, assert that the Special Counsel
appointment by the Acting Attorney General justifies this registration of our grievances
with our Government, in that this appointment, in summary:
Establishes the precedent
that a Special Counsel can be appointed to investigate any and all Americans
who have committed no crime, and
Renders asunder one of
the most sacred principles in the American criminal justice system that a
citizen is innocent until proven guilty, and
Even more egregious,
makes all Americans vulnerable to search and seizures of our persons, houses,
paper and effects without probable cause—a violation of our rights granted by
the Fourth Amendment to the Constitution.
Now, therefore, we demand that the United States
House of Representatives Oversight Committee call for the immediate termination
of the Special Counsel whose existence violates Code of Federal Regulations
sections 28 CFR 600.1 and 28 CFR 45.2 and puts in jeopardy our Fourth Amendment
rights under the U.S. Constitution.
