Comey must have been cognizant of the genesis of the “dossier” and how it had been misused by the FBI. Over time, the hoax began to unravel. Although he wanted to peddle his book and relished the bright lights of television celebrity, he did not want to respond candidly to penetrating questions about his central role in The Big Lie. He made a calculated decision to obfuscate and dissemble. During tough interviews, he bobbed and weaved like a prize fighter.
He also made a career out of trashing Trump in opinion columns, labeling the president delusional, amoral, deeply unethical, and a liar.169 He tweeted cornball photographs of himself standing tall amid gigantic trees with the metaphysical query “So many questions.”170 Another photo showed him gazing pensively at the ocean accompanied by the caption “Geologic time offers useful perspective.”171 It was all so vapid and banal that Twitter had a field day mocking him, as did columnists. Kevin Brock, a former assistant director of intelligence for the FBI, writing for The Hill, derided Comey as the “Pontiff-of-the-Potomac working his beads.”172 William McGurn of the Wall Street Journal quipped, “The glowing picture of Parson Comey as a paragon of virtue is a self-portrait.”173
Only an audacious and arrogant man accuses others of lying when he is guilty of doing the the same. In December 2018, after testifying behind closed doors, Comey stood outside the hearing room in front of the clicking cameras to accuse President Trump of “lying about the FBI, attacking the FBI, and attacking the rule of law in this country.”174 That from the man who had been fired for abusing his authority at the FBI and usurping the power of the attorney general in the infamous Clinton email scandal. His lack of self-awareness was breathtaking. The truth is that Comey’s absence of probity and his defiance of Bureau rules and principles of law were his downfall. His unchecked ambition and desire to thrust himself into the public limelight only exacerbated his mistakes of judgment and deed. Comey, not Trump, is the one who subverted the rule of law and ruined the good name and reputation of the FBI.
To this day, Comey refuses to accept responsibility for his misdeeds. Instead, he embraces the mantle of purity, while shifting blame to others or attempting to cover it up. When faced with vexatious evidence he says, as he did more than two hundred times in his December congressional testimony, “I don’t know” or “I don’t remember.” His amnesia is, quite literally, unbelievable. He can’t recall who had drafted the document that launched the Trump-Russia investigation in July 2016. He claimed he had never known that Clinton, Fusion GPS, and the DNC had all been responsible for the anti-Trump “dossier.” To hear him tell it, he had known hardly anything at all about the involvement of Steele and his phony “dossier.” Yet he was all too willing to exploit the “dossier” as a pretext to spy on a Trump campaign associate. As FBI director, he affixed his signature to the “verified” warrant applications, even though he and Bureau agents had never verified their contents.
Comey loves to sermonize about lies and liars. This is perversely ironic coming from a man who, more than anyone else, is responsible for the most notorious hoax in modern US history. There was no credible evidence and hence no legal basis to justify the Trump-Russia investigation when Comey opened it in July 2016. Lisa Page, the FBI’s lead lawyer in the Russia case, admitted in her closed-door deposition that the FBI had discovered no evidence of a crime, which is a legal prerequisite for invoking a special counsel.175 But that did not stop Comey from filching presidential memos and delivering them to a friend, who then leaked them to the media to carry out his nefarious scheme to trigger a special counsel.
Comey is not the heroic or noble figure that he imagines he is. He twisted the facts and contorted the law to clear Clinton. He launched an investigation of Trump without legally sufficient evidence. He tasked undercover informants to infiltrate Trump’s campaign. He deceived the FISA court by withholding exculpatory evidence. He misappropriated government documents and furtively fed them to the media to precipitate an illegitimate special counsel investigation. And he has repeatedly given deceptive or misleading statements to Congress, the media, and the American people. As FBI director, Comey was a cancerous tumor. He betrayed the public trust. As a private citizen, he continues to spin his web of deception while exalting his status as a martyr. He is a monument to vanity.
Thomas Jefferson once wrote, “He who permits himself to tell a lie once, finds it much easier to do it a second and third time, until at length it becomes habitual; he tells lies without attending to it, and truths without the world’s believing him.”
James Comey may be the only one who believes the stories he’s selling.
Chapter 5
The Folly of Mueller’s Magnum Opus
Rosenstein is the guy who picked Bob Mueller. He could have picked anybody, and he picked a killer. He picked a trained assassin to be the special counsel.
—FORMER NEW JERSEY GOVERNOR CHRIS CHRISTIE ON FOX NEWS, JANUARY 31, 2019
The Mueller Report should have come with a stern warning on its cover: “Do not swallow whole. Guaranteed side effects include confusion, frustration, dizziness, stomach upset, and nausea.” These symptoms become more severe with every page. As you try to digest all 448 of them, you will feel the pain of a colonoscopy without Propofol. The report is excruciating because it is so hopelessly disorganized, self-contradictory, redundant, and often incomprehensible. Some sections are so chaotic and schizophrenic, you’ll get whiplash. The more you read, the more it impairs your ability to think. It is fatuous to try to make sense of all the senselessness. Too much of it is slapdash and tangled up in extraneous or mundane facts. Other parts, especially those that feign legal analysis, are so mind-numbingly convoluted that their meaning is impenetrable. The entire document would have benefited from a copy editor’s red pen. Or more lucid lawyers who were not blinded by their bias.
If you manage to wade through the detritus, one manifest truth emerges from the wreckage: Special Counsel Robert Mueller did not complete the assignment he was given. As a prosecutor, he failed to do his job. If he were a student, his deficient work would have earned him either an “F” or, at best, an “incomplete.” If he were employed by a private business, he would be summarily fired.
Only in government can someone squander an exorbitant amount of time and money, fail miserably at the designated task, and still retain a modicum of esteem.
Mueller spent nearly two years conducting an exhaustive investigation. He employed 19 lawyers and roughly 40 FBI agents, forensic accountants, and intelligence analysts. His team issued in excess of 2,800 subpoenas and executed roughly 500 search warrants. Approximately 230 orders for communications records were obtained, and 50 pen registers were secured, allowing intrusive access to telephone and other electronic information. An astounding 500 witnesses were interviewed, and 13 foreign governments were involved. Millions of pages of documents were examined. Throughout the endeavor, the special counsel was armed with vast power and unlimited resources, spending more than $30 million. The nation was held in suspense and a presidency hung in the balance while waiting for Mueller to wrap up the job by making two critical decisions.
Yet Mueller finished only half of his assignment. He made a determination on “collusion” but not on obstruction of justice. He booted it. It was a shameful abdication of the trust and obligations vested in him. The duty and parameters of his undertaking were defined by the very regulations that authorized his appointment: to reach “prosecution or declination decisions. [author’s italics]”1 To put it plainly, he was hired to make decisions. He did manage to conclude that no “members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”2 It never happened. Neither the president nor anyone on his behalf engaged in criminal acts with Russia, notwithstanding the constant two-year barrage of accusations to the contrary by the media and Democrats. No one was prosecuted for that by Mueller. It was the so-called “collusion” aspect of the special counsel’s investigation—the Russia hoax.
> However, on the question of whether President Trump had obstructed justice by attempting to interfere in the FBI’s or Mueller’s investigation, the special counsel said that he had “determined not to make a traditional prosecutorial judgment.” He had decided not to decide one of only two questions he had specifically been hired to resolve. He was like a truck driver who hauls goods only halfway to the agreed-upon destination. Or a chef who doles out half the dinner for which you paid handsomely. You would feel cheated. And so should every American.
By way of an excuse, Mueller bemoaned that the evidence “presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. [author’s italics]”3 What? Did we read that correctly? He seemed to be confessing that his assignment was simply too onerous for him to complete, in much the way a pupil might tell his teacher, “Gosh, the exam question is just too hard for me to answer.” Both the student and Mueller deserve a failing grade. When Attorney General William Barr testified before the Senate, he said reprovingly that it is the essential role of a prosecutor to make a charging decision.4 It’s his job, for goodness’ sake. The special counsel declined to meet his responsibility. That confounded Barr, especially since Mueller offered no coherent reason. When asked to make sense of what he did (or didn’t) do, the attorney general replied, “I’m not really sure of his reasoning . . . we didn’t really get a clear understanding of the reasoning.”5 Barr wondered why an appointed prosecutor would spend twenty-two months investigating, “if at the end of the day you weren’t going to reach a decision.”6 Why indeed. It was beyond baffling.
One hypothesis is that Mueller did so for a malign reason, not the labyrinthine one he recited in his tortured explanation that can be found in the “Introduction” section of volume II of his report.7 Perhaps the real reason the special counsel chose to deflect such an important decision is that he knew, under the law, that the president had not obstructed justice. A studious examination of his analysis, in consideration of both constitutional principles and statutory law, makes this seem certain—that he could not bring himself to publicly confirm that there was a dearth of evidence to justify an obstruction offense. He could not or would not validate the president’s repeated reproval that the accusations against him were nothing more than a perfidious “witch hunt.” Is it possible that Mueller couldn’t muster the fortitude to be fair? There is little doubt that if the special counsel had had sufficient evidence to outline an obstruction offense against Trump, he would have said so and specified that evidence.
It appears increasingly evident that Mueller and his prosecutors were driven by personal and/or political animus toward Trump. It is also conceivable that his team of partisan lawyers was divided, with some willing to contort the law to pronounce Trump culpable of obstruction, while others were reluctant to do so. Regardless, Mueller’s refusal to decide the issue immediately precipitated declarations by opponents of the president that “the obstruction of justice material laid out by Mueller is damning enough.”8 That was likely the special counsel’s intent all along after recognizing that the evidence he had collected did not support a case for obstruction. In his solitary news conference that followed his report, he all but hung an “impeachment” sign on the lectern.
Mueller spent 183 pages smearing Trump by implying that under certain circumstances (which did not exist), the facts might sustain an obstruction case—if only the law could be used innovatively. He deliberately left a trail of faux obstruction crumbs so that Trump critics, unschooled in the law, might gobble them up and accuse the president of a crime that was no crime at all. Others, famished for impeachment, would pursue the president under the constitutional rubric of “high crimes and misdemeanors.”9
Mueller’s Presumption of Guilt
Mueller’s determination to imply presidential obstruction was a remarkable achievement in creative writing. He set forth in luxurious detail what the attorney general described as “evidence on both sides of the question.”10 But this is not the job of any prosecutor anywhere. Mueller was not retained to compose a masterpiece worthy of Marcel Proust. He was hired to investigate potential crimes arising from Russian interference in a presidential election and make a reasoned decision on whether charges were merited. Instead, he produced a “magnum opus” that presented competing sides of the legal argument on obstruction, without rendering any decision whatsoever.11 That was his folly. And his artifice.
Mueller’s dereliction of duty was explained by the liberal former Harvard Law School professor Alan Dershowitz:
The job of a prosecutor is to make decisions. To charge or not to charge. It is not to write law review essays that lay out “on one hand, on the other hand” arguments. In law, as in life, there are close cases, about which reasonable people can disagree. But the job of the prosecutor is to decide those close cases. [Mueller] failed to come to a clear decision about obstruction of justice. That was his job and he should have done it.12
By ducking the decision and kicking it to the attorney general, Mueller could have it both ways. Barr would be forced to do what the special counsel had been tasked to do, all the while absorbing criticism for making the ultimate decision that obstruction was not supported by the evidence or the law. Meanwhile, the special counsel’s opus would give ammunition to Trump’s enemies, who were resolute in their pursuit of impeachment to drive him from office. It was a cunning maneuver.
Sure enough, the attorney general dutifully studied Mueller’s report and the jumble of evidence cited therein. Despite its length, excessive verbiage, and conflicting findings, he was quickly able to resolve that the president’s words and actions could never form the legal basis required to justify an obstruction offense. For every negative there was a countervailing positive. For every seemingly incriminating piece of evidence cited by Mueller, there was a corresponding exculpatory explanation. The special counsel surely knew that Trump’s enemies outside the Justice Department would focus only on the incriminating elements, while ignoring the exculpatory components. However, as an experienced and scrupulous lawyer, Barr looked at both.
In concluding that obstruction was not warranted, the attorney general did not operate in a vacuum. He was joined in his opinion by the deputy attorney general and top lawyers at the Justice Department, including those in the highly regarded Office of Legal Counsel.13 They studied the evidence and the law. They consulted the same DOJ lawyers who had been guiding Mueller on the subject of obstruction throughout his long investigation. They reached a firm consensus that, under the law, President Trump’s actions had been constitutionally authorized and that he had not acted with “corrupt intent” to obstruct “a pending or contemplated proceeding.”14
As a legal matter, President Trump was absolved of any crime related to “collusion,” such as conspiracy to defraud the government. He was also cleared of obstruction when Barr revealed that “the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction of justice offense.”15 That should have marked the end of the “witch hunt.” Of course, it did not. That may have been precisely what Mueller desired when he wrote his opus. Many of the Democratic presidential candidates running to unseat Trump in the 2020 election predictably demanded Trump’s immediate impeachment by citing Mueller’s report.16 Their motives were obvious and can be dismissed as rank opportunism or an electoral “litmus test.”17 But other Democrats in Congress called for the president’s prompt impeachment, as well.18
If that was Mueller’s plan, it worked flawlessly. His opus was never going to be a “confidential report,” as stated in the special counsel regulations. The length and composition make that self-evident. It appears to have been designed for public and congressional consumption. It could serve as an inciting document that would agitate and inflame. If the law couldn’t drive Trump from office, embroidered storytelling might do the trick. Mueller disregarded the guiding principles for prosecutors and the express
language of the special counsel regulations that “prosecutors are to speak publicly through indictments or confidentially in declination memoranda.”19 He ignored established constitutional law and indulged in inconclusive observations that seem to have been cleverly framed to arouse and induce action against the president by his harshest critics, including both Democrats and the media.
Mueller’s actions were not only noxious but patently unfair to Trump. The special counsel publicly besmirched the president with tales of suspicious behavior instead of stated evidence that rose to the level of criminality. This is what prosecutors are never permitted to do. The rules of the Justice Department forbid its lawyers to annunciate negative narratives about any person absent an indictment. How can a person properly defend himself without trial? This is why prosecutors such as Mueller are prohibited from trying their cases in the court of public opinion. If they have probable cause to levy charges, they should do so. If not, they must refrain from openly disparaging someone whom our justice system presumes is innocent.
In that regard, Mueller shrewdly and improperly turned the law on its head. Consider the most inflammatory statement that he leveled at the president. It was guaranteed to ignite the impeachment fire:
While this report does not conclude that the President committed a crime, it also does not exonerate him.20
To reinforce the point, he stated it thee times in his report.21
Prosecutors are not, and have never been, in the business of exonerating people. That’s not their job. An experienced federal prosecutor, Mueller certainly knew this. It seems he had no intention of treating Trump equitably or applying the law in conformance with our criminal justice system. In a single sentence, he managed to reverse the legal duty that prosecutors have rigidly followed in America for centuries. Their legal obligation is not to exonerate someone or prove an individual’s innocence. Nor is any accused person required to prove his or her own innocence. Everyone is entitled to the presumption of innocence. It is the bedrock on which justice is built. Prosecutors must prove guilt beyond a reasonable doubt. To bring charges they must have, at minimum, probable cause to believe that a crime was committed.
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