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Saturday, April 21, 2018
Revealed: Robert Mueller’s FBI Repeatedly Abused Prosecutorial Discretion
Establishment DC types who reflexively defend Mueller haven't
explained how they came to trust him so completely. It's a question worth
asking given the bumpy historical record of Mueller's tenure as FBI director.
Journalist Mike Allen of Axios
recently said that one word described Special Counsel Robert Mueller, and that word
The context for his remarks on Fox
News’ “Special Report” was that Mueller had just spun off to the U.S.
Attorney’s Office for the Southern District of New York a bit of his limitless
investigation into President Donald J. Trump. Allen’s comment was like so many
others from media and pundit types since the special counsel was launched. If
there’s one word to describe the media’s relationship to Mueller, it’s
Pundits and politicians have said,
repeatedly, that he is “somebody we all trust” with “impeccable credentials.” No
matter what his office does, from hiring Democratic donors to run the Trump
probe to aggressively prosecuting process crimes, he is defended by most media
voices. Criticism of Mueller by people who aren’t part of the Trump
Resistance is strongly fought, with claims that disapproval of anything related
to Mueller and how he runs his investigation undermine the rule of law.
The media and establishment DC who
reflexively defend Mueller haven’t explained how they came to trust him so
completely. It’s a question worth asking given the bumpy historical record of
Mueller’s tenure as FBI director from 2001 to 2013.
For instance, as I noted to Allen, Mueller
was also “unafraid” at completely botching the anthrax killer case, wasting more than $100 million in taxpayer dollars,
destroying the lives of multiple suspects, and chasing bad leads using bad
methods. Let’s look at that and other cases
involving how Mueller and those he placed in positions of power used their
authorities and decided what charges to pursue.
The Anthrax Bungling
Shortly after the terrorist attacks
in 2001, letters containing anthrax were mailed to media outlets and the
offices of Sens. Tom Daschle, D-S.D., and Patrick Leahy, D-Vt., killing five
people and infecting 17 others.
The FBI quickly focused on an innocent man
named Steven Hatfill, relentlessly pursuing him for years while the real killer
walked free. As Carl Cannon wrote
about the botched case, ridiculous and aggressive methods were used to go after
the wrong man:
So what evidence did the FBI have
against Hatfill? There was none, so the agency did a Hail Mary, importing
two bloodhounds from California whose handlers claimed could sniff the scent of
the killer on the anthrax-tainted letters. These dogs were shown to
Hatfill, who promptly petted them. When the dogs responded favorably,
their handlers told the FBI that they’d ‘alerted’ on Hatfill and that he must
be the killer.
Mueller and his deputy James Comey
were certain they had the right guy. They didn’t, and taxpayers had to pay
Hatfill $5.82 million for the error. When that settlement was announced, Cannon
Mueller could not be bothered to
walk across the street to attend the press conference announcing the case’s
resolution. When reporters did ask him about it, Mueller was graceless. ‘I
do not apologize for any aspect of the investigation,’ he said, adding that it
would be erroneous ‘to say there were mistakes.’
Mueller placed Special Agent Van
Harp in charge of the initial investigation. He had been “accused of
misconduct and recommended for discipline for his role in a flawed review of
the deadly Ruby Ridge standoff,” according to a Washington Post report.
He had helped “prepare an incomplete report on the 1992 Ruby Ridge siege
that had the effect of protecting high-level FBI officials, according to a
confidential 1999 report by the Justice Department’s Office of Professional
After Hatfill sued the FBI, Harp
admitted that he talked to the media about the anthrax case due to political
concerns at the bureau.
Special Agent Harp, who initially
headed the anthrax investigation, conceded after Hatfill sued the government in
August 2003 that the FBI had been sensitive to accusations that it had stumbled
in other high-profile investigations, and that it had consciously sought to
assure the public that it was working hard to crack the anthrax murders. Part
of providing such assurance involved actively communicating with news
Questioned under oath, Harp admitted to serving as a confidential
source for more than a dozen journalists during the case, but he insisted that
he had never leaked privileged information about Hatfill, or anyone else for
Hatfill’s attorney’s found the
latter claim highly improbable.
The Democrat Berger Treated Gently
As aggressive as Mueller can be
about pursuing the wrong man, he showed surprising leniency and
laxity when it came to the case of Samuel
“Sandy” Berger, a Clinton White House national security adviser. In the run-up to testifying before the 9/11 Commission
that sought to examine the failures that led to those terrorist attacks,
Berger visited the National Archives to review classified documents with his
notes on them.
But instead he intentionally removed
and destroyed multiple copies of a classified document the commission should
have reviewed for national security purposes, and lied to investigators about
He was found to have stuffed the
documents in his socks and otherwise hidden them. His punishment was that he was allowed to plead guilty in
2005 to a single misdemeanor. He served no jail time
but had to give up his security clearance for three years.
The staff of Rep. Tom Davis, R-Va.,
authored a 60-page report about the theft of the documents, in which he said “The
Justice Department was unacceptably incurious about Berger’s Archives visits.”
Scooter Libby Charged, But Not The Leaker
As lax and lenient as the Department
of Justice was with Berger, the opposite was true in other cases. After Valerie
Plame’s identity as a CIA employee was leaked, a special counsel operation was
set up to investigate the leak.
Mueller’s deputy Comey pressured John
Ashcroft to recuse himself from the case on the grounds he had potential
conflicts of interest.
Comey named Patrick Fitzgerald, his
close personal friend and godfather to one of his children, to the role of
special counsel. Mueller, Comey, and Fitzgerald all
knew the whole time that Deputy Secretary of State Richard Armitage was the
Yet they set things up so Fitzgerald would aggressively
investigate the Bush administration for three years, jailed a journalist for
not giving up a source, and pursued both Karl Rove and Scooter Libby.
Comey even expanded the
investigation’s mandate within weeks of setting up the special counsel. Libby,
who was pardoned by President Trump last week, was rung up on a process charge
in part thanks to prosecutorial abuse by Fitzgerald. Fitzgerald
encouraged a witness to give false testimony by not providing exonerating
evidence to her and Libby’s attorneys. The Wall Street Journal and Commentary
have write-ups on the saga.
Republican Ted Stevens Railroaded
In 2016, the FBI kept getting
involved in the presidential election. Political considerations rather
obviously played a role in Comey showing deference to Clinton in July 2016
in the investigation into her mishandling of classified information.
Political considerations also played a role — he says subconsciously — in
Comey’s decision to announce a probe into Clinton’s mishandling of classified
information had been reopened shortly before the election.
It wasn’t the first time the FBI
meddled in a U.S. election. In 2008, Sen. Ted Stevens, R-Alaska, was
indicted by a federal grand jury following a lengthy investigation by the FBI
and found guilty eight days before Election Day. Stevens narrowly lost his
re-election bid as a result and died in a plane crash a couple of years later.
The prosecutors in that case
repeatedly withheld exculpatory evidence that would have yielded a different
verdict. The convictions were voided by U.S. District Court Judge Emmett G.
Sullivan, who called it the worst case of prosecutorial misconduct he’d ever
seen. Stevens’ attorney complained about FBI abuses and said:
‘To us, while this is a joyful day
and we’re happy that Sen. Stevens can resume a normal life without the burden
that he’s carried over these last years,’ he said, ‘at age 85, it’s a very sad
Because it’s a warning to everyone in this country that any
citizen can be convicted if the prosecutor ignores the Constitution of the
Israeli Spy Ring That Wasn’t
Another black mark on Mueller’s
record at the FBI was the pursuit of what the bureau dramatically claimed was
an Israeli spy ring operating out of the Pentagon. The news broke in August 2004 that a spy working for Israel
was in the Department of Defense.
It turned out that the bureau had
gone after a policy analyst who had chatted with American lobbyists at the
American Israel Public Affairs Committee (AIPAC). Charges were also pursued
against two AIPAC employees. Those charges were later dropped and the sentence
of the first person was dropped from 13 years to 10 months of house arrest and
some community service.
The conspiracy case against two
former AIPAC lobbyists came to an inglorious end in May when the government
dropped all charges after 3 1/2 years of pre-trial maneuvers.
It was a curious case: First, the
lobbyists, Steve Rosen and Keith Weissman, were charged under an obscure
section of the Espionage Act of 1917, a law that had been used only once before
— unsuccessfully and never against private citizens for disclosing classified
Second, they were targets of a bizarre sting in which they were
fed false information suggesting that the lives of U.S. and Israeli operatives
in Iraq were at risk and that American officials were refusing to take steps to
The accusation was not that they brokered this information to
some foreign enemy but that they offered it to everybody they could, hoping,
among other things, to get a reporter from The Post to publish it so that it
might draw the attention of the right U.S. officials and save U.S. lives. In
short, even if the two were guilty as charged, they look more like
whistle-blowers than spies.
It turned out the probe was led by
David Szady, the same man who notoriously missed Russian spy
Robert Hanssen in his midst while he spent years targeting an innocent man
named Brian Kelley, an undercover officer at the CIA. For this good work,
him assistant director for counterintelligence.
Many of these examples of
prosecutorial misconduct and abuse were done not by Mueller but by underlings.
He should have been aware of what they were doing, which means he should take
responsibility for the errors. If he wasn’t aware, that’s a very bad sign
regarding his competence to supervise his special counsel deputy Andrew
If Mueller had no effective
supervision against the abuses of the above underlings, why would anyone trust
him to supervise his good buddy Weissman, whom he picked to run lead on his
probe of Trump?
Weissman destroyed the accounting firm Arthur Anderson LLP,
which once had 85,000 employees. Thanks to prosecutorial abuse, jurors were not
told that Arthur Anderson didn’t have criminal intent when it shredded
documents. The Supreme Court unanimously overturned the conviction, but it was
too late to save the company.
Weissman also “creatively criminalized a business transaction between Merrill Lynch and Enron,” which sent four
executives to jail. Weissman concocted unprecedented charges and did not
allow the executives to get bail, causing massive disruption to the families
before the Fifth Circuit Court of Appeals reversed most of Weissman’s case.
One could also argue that the above
failures, save the Stevens case, were actually Comey’s responsibility. That’s
arguably true as well, but it also shows just how bizarre it is that Mueller
was named to investigate a situation in which his friend and partner in
prosecutorial abuse is so intimately involved.
This Is About More Than Trump
The media scoff in feigned outrage
at President Trump’s claims that the FBI has a reputation that is in tatters. But
the last 15 years of leadership of the FBI under Mueller and Comey have largely
shown that to be true because of how the FBI handles it cases.
In recent months, the FBI lost a
high-profile case against Omar Mateen’s widow Noor Salman, who was charged with
material support of ISIS and lying to the FBI about it. The case was an
The jury foreman said,
“I wish that the FBI had recorded their interviews with Ms. Salman as there
were several significant inconsistencies with the written summaries of her
statements.” The jury felt that the widow had been bullied into signing a false
On the day after the Pulse shooting,
Comey promised the bureau would provide transparency as the case was handled.
Almost immediately, the claim of transparency was shown to be false when the
FBI redacted the killer’s statements about his Islamist terrorism beliefs in a
transcript of his calls with Orlando 911.
The bureau was also less than
transparent about the fact that Mateen’s father was a long-time FBI informant.
James Bovard has much more.
Or what about the recent mistrial
declared in the Cliven Bundy standoff? Here’s The Oregonian:
A federal judge Wednesday declared a
mistrial in the prosecution of Nevada cattleman Cliven Bundy, his two sons and
a co-defendant, citing the government’s ‘willful” failure to turn over multiple
documents that could help the defense fight conspiracy and assault charges in
the 2014 Bunkerville standoff…
The judge listed six types of
evidence that she said prosecutors deliberately withheld before trial,
including information about the presence of an FBI surveillance camera on a
hill overlooking the Bundy ranch and documents about U.S. Bureau of Land
Management snipers outside the ranch….
‘The failure to turn over such
evidence violates due process,” the judge said…..
Yesterday, Comey told Meghan McCain
on The View, “Public confidence in
the FBI is its bedrock.” That’s
true. And the lack of confidence in the FBI is not the result of Trump and his
insults but a pattern of abuse of prosecutorial discretion going back 15
years or so. Mueller is responsible for 10 years of that.
The denizens of DC no doubt have had
great interactions with Mueller and the men he put in charge of high-profile
cases. But those who were wronged in the Anthrax, Libby, AIPAC, Enron, and
other cases might have a different view. Those who observe how differing
rules have been applied to people in seemingly partisan fashion should not be
As former judge and Attorney General
Michael Mukasey wrote in the Wall
Street Journal this week, “Mr. Mueller is not a bad man, nor is Mr. Comey.
It’s just that both show particular confidence when making mistakes, which
makes one grateful for safeguards like the attorney-client privilege.”
The media should not be so quick to
gloss over these mistakes solely because of anti-Trump animus. Journalists who
take their role seriously should be skeptical of powerful government
institutions and how they can abuse their authority.
Ziegler Hemingway is a senior editor at The Federalist. Follow her on Twitter