The Russia Hoax
Page 24
The importance of explicitly stating a suspected crime as a necessary predicate for appointing a special counsel is reinforced by the requirement set forth in 28 C.F.R. 600.4:
The Special Counsel will be provided with a specific factual statement of the matter to be investigated.4
Rosenstein’s appointment order provided no such “specific factual statement” of a matter to be criminally investigated. Instead, the order granted Mueller broad authority to investigate matters that are not criminal at all. The FBI’s probe up to that point was a “counterintelligence investigation,” according to Director James Comey’s testimony before the House Intelligence Committee.5 The bureau was looking into Russian interference in the 2016 election, a national security concern. Information was being collected. That is not the same as a criminal investigation. A strong case can be made that Mueller’s appointment was defective and invalid because he was empowered to investigate something that was not authorized by the special counsel regulation.
Former federal prosecutor Andrew McCarthy argued that Mueller’s appointment violated the special counsel regulation because “the regulation does not permit the Justice Department to appoint a special counsel in order to determine whether there is a basis for a criminal investigation. To the contrary, the basis for a criminal investigation must pre-exist the appointment.” He added, “It is the criminal investigation that triggers the special counsel, not the other way around.”6 He is correct. A close examination of the order appointing Mueller shows that the Justice Department reversed the process and did it backward.
There are three parts to Rosenstein’s appointment order. They are worth examining separately. The first part reads as follows:
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 . . . any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.7
Where was the stated crime? The “specific factual statement” was not specific in any sense of the word. It was quite broad and open-ended. It referenced Comey’s testimony in which he had revealed an outstanding counterintelligence investigation, but not a criminal case. Contrary to the requirements of the special counsel regulations, Rosenstein’s order called for an investigation of something that was not illegal. Assuming there was ever any evidence of “links” or “coordination” between the Russians and the Trump campaign, where in the criminal codes does that rise to the level of criminal activity? It does not. Perhaps someday Congress will decide to make it a crime. Until then, it is perfectly legal.
Michael B. Mukasey, former U.S. attorney general and chief judge of the United States District Court for New York, pointed out this legal defect in Mueller’s appointment order when he wrote a column for the Wall Street Journal:
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.8
Mukasey noted that prior investigations utilizing independent counsels such as Watergate, Iran-Contra, and Whitewater “identified specific crimes” and “the public knew what was being investigated.”9 The whole point of the special counsel regulation was to avoid limitless investigations by unaccountable prosecutors and to apprise the public of what potential crimes were being pursued. The public, after all, has a right to know if their tax dollars are being used or misused for an unbounded search for unidentified crimes.
But with Mueller’s appointment, Americans were given no idea what the special counsel was up to because Rosenstein’s assignment order violated the regulation that demanded the identity of a specific crime to be investigated. Not only was Mueller’s appointment invalid for this reason, but there was no need for a special counsel at all, in the absence of some evidence of a crime. The FBI could have continued its counterintelligence probe.
In an interview with the Public Broadcast Network, Mukasey elaborated:
Any links or coordination may sound sinister, but it doesn’t define or suggest the existence of a crime. So, what’s been defined here, or not defined here, is something that looks very much like a fishing expedition or a safari.10
This brings us to the second part of Rosenstein’s order that directed Mueller to investigate “any matters that arose or may arise directly from the investigation.”11 This was an even bigger blank check and completely in contravention of the special counsel regulation. Rosenstein had no authority to confer such an expansive and undefined mandate for Mueller because, again, the law demands a “specific factual statement of the matter to be investigated.” He is not permitted to say simply, “and look for anything else that might come up.” This flaw or defect in the order also rendered Mueller’s appointment invalid. He cannot exercise power that Rosenstein had no authority to grant.
The third part of Rosenstein’s order instructed Mueller to investigate “any other matters within the scope of 28 C.F.R. 600.4(a).”12 What does that regulation state? It reads:
The jurisdiction of a Special Counsel shall also include the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.13
In simple language, this means that if someone tried to interfere with Mueller’s investigation or lied during questioning, he or she could be prosecuted for obstruction of justice, perjury, or making a false statement. This did not grant the special counsel authority to investigate Trump for any obstruction of justice that might have happened before the special counsel was appointed. Only impeding Mueller’s investigation, itself, is recognized by the regulation.
So, what was Mueller left with? Investigating any “links or coordination” with the Russians. But since that is not a crime in a political campaign, then Mueller was tasked with investigating a noncrime which he is not authorized to do under the special counsel regulation. He had no legitimate assignment and no regulatory authority to do anything.
Rosenstein and Mueller likely knew they were bending the law into a pretzel. When the special counsel indicted Paul Manafort on charges of tax, financial, and bank fraud crimes that had nothing to do with the Trump campaign and significantly pre-dated his brief role as campaign manager, his lawyers filed a motion to dismiss the case by challenging Mueller’s authority to prosecute based on some of the arguments stated herein.
In response, the special counsel filed documents with the federal court admitting that Rosenstein’s order appointing Mueller was deliberately vague. This was an astonishing confession that the acting attorney general had carefully crafted his appointment order in a way that willfully violated the special counsel regulation that required a specific statement of facts. Rosenstein had no intention of adhering to the law when he named Mueller to the post on May 17, 2017.
The court documents revealed that Rosenstein issued a new, secret memorandum to Mueller, dated August 2, 2017. In it, Rosenstein seemed to concede that his original order appointing Mueller did not comply with the special counsel regulations:
The May 17, 2017, order was worded categorically in order to permit its public release without confirming specific investigations involving specific individuals.14
Rosenstein’s memo then proceeded to order Mueller to investigate “allegations that Paul Manafort committed a crime or crimes by colluding with Russian government officials with respect to the Russian government’s efforts to interfere with the 2016 election for President of the United States, in violation of United States law.”15 What law? Conspicuously, Rosenstein failed to cite a law or potential crime, perhaps having difficulty in finding one that had any application to �
�collusion.” Therefore, even the second secret order failed to meet the requirement of the regulation that a crime be stated.
Importantly, this memo was hidden from the public and only disclosed because Mueller was forced to do so when faced with the prospect that a federal judge might dismiss the case on the grounds that Mueller’s appointment was invalid and he, therefore, lacked any authority. Had it not been for Manafort’s lawyers who contested the basis for the special counsel’s appointment, Rosenstein’s memo would still be a secret. They were misleading Americans. They made available an opaque order for public consumption, but held back a different order containing the truth.
It seems apparent that Rosenstein and Mueller conspired to circumvent the special counsel regulation. In May, Rosenstein knowingly wrote a vaguely worded order when the law demanded a specific one. The two men then decided between themselves what and whom to investigate and to keep it concealed from the American public. This violated both the letter and spirit of the special counsel regulations. As written, the rules promised clarity and transparency. Yet, Rosenstein and Mueller worked in concert to undermine them. In so doing, they have further eroded the public’s trust in the fairness and integrity of the legal process.
Their questionable conduct cannot be cured by their belated effort to comply with the strict requirements of the regulation. Why? Because they engaged in still another deception. Note the date of the subsequent memo authorizing Mueller to investigate Manafort—August 2. However, Mueller ordered the FBI to conduct a predawn raid of Manafort’s home on July 26, a full week before the issuance of Rosenstein’s order. Since Mueller claimed that the August 2 memo authorized him to pursue Manafort, this was an admission that he was not authorized at the time of the raid. Arguably, any material illegally seized would be inadmissible evidence under the well-established “exclusionary rule.”16
Another curious anomaly jumps out from Rosenstein’s August 2 memo where he wrote that Mueller’s authority to investigate Manafort was “within the scope of the investigation at the time of your appointment and are within the scope of the Order.”17 Why, then, was there a need to write the second memo at all? And why did it take nearly three months to do it? The obvious answer is that Rosenstein and Mueller must have recognized that they had not complied with the regulations and were endeavoring to correct their mistake retroactively.
Even the second memo failed to remedy the problem, since it also neglected to specify what federal laws might have been violated as the basis for the criminal investigation. There must first be a criminal investigation before a special counsel can be named. This did not exist. There was only a counterintelligence probe at the time of Mueller’s appointment. That probe involved the gathering of information. The special counsel regulations do not allow an appointment to be used for this purpose. If it were otherwise, there would be an endless number of special counsels bootstrapped to all the various FBI counterintelligence cases that involve Russia and from which Sessions might be recused. Harvard law professor Alan Dershowitz concluded that both of Rosenstein’s orders failed to comply with the special counsel regulations: “You can’t investigate sins, you can only investigate federal crimes and there is no such federal crime as ‘collusion.’ ”18
In court documents, Mueller argued that his original authorization order was deliberately vague because anything specific would be confidential and might jeopardize his investigation.19 This is a standard excuse by prosecutors. The more plausible explanation is that the August 2 memo was a delinquent effort by Rosenstein and Mueller to remedy their failure to comport with the regulations. They surely knew they had violated these special counsel rules, made worse by their raid of Manafort’s home. So, they attempted to rectify their mistake after the fact by devising a new, albeit equally defective, order. Then, under the guise of “confidential,” they appeared to have covered it up to conceal from the public what they had done.
None of the charges against Manafort are even remotely related to any “coordination” between the Trump campaign and Russia during the election nor “any matters that arose or may arise directly from the investigation,” as the Mueller’s Order of Appointment specifically authorizes.20 Nowhere is Manafort accused of crimes involving Russian officials or their government, and the special counsel has provided no evidence of it.21 Instead, the criminal complaint alleges wrongful conduct between 2006 and 2014. This significantly predates the presidential election. Moreover, it appears that Mueller did not uncover new evidence during the course of his investigation, but resurrected an old Justice Department investigation of Manafort in which no charges were ever brought. In federal court, lawyers for the special counsel admitted it. Judge T.S. Ellis III then accused Mueller’s team of exerting “unfettered power” to bring down the president:22
I don’t see what relation this indictment has with anything the special counsel is authorized to investigate.
Now, I think you’ve already conceded appropriately that this investigation that has led to this indictment long antedated the appointment of a special prosecutor; that it doesn’t have anything to do with Russia or the campaign; and he’s [Manafort] indicted; and it’s useful, as in many cases by prosecutors, to exert leverage on a defendant so that the defendant will turn and provide information on what is really the focus of the special prosecutor.
As the judge correctly reasoned, Mueller is acting in violation of the special counsel regulations and abusing his authority.23
Mueller Should Have Recused Himself
The appointment of Mueller originated when fired FBI director James Comey took presidential memos out of the FBI building, converted them to his own use, and then purposefully delivered them to a friend to leak to the media. Appearing before the Senate Intelligence Committee in June 2017, Comey admitted he engineered the leak because “I thought that might prompt the appointment of a special counsel.”24 It was a typical Comey maneuver—deviously effective.
What has never been explained is how one of Comey’s closest friends in Washington, Mueller, ended up being selected as the special counsel. The decision was supposedly made by Rosenstein who has never fully explained what went on behind the scenes. But it is well known that Comey, Mueller, and Rosenstein were friends and colleagues in their various roles throughout the years with the Department of Justice. The fact that all three became involved in the investigation of Trump after the president fired one of them calls into serious question their objectivity. It is quite the cozy arrangement. As such, it is saturated with conflicts of interests.
The law governing the special counsel, 28 C.F.R. 600.7, prohibits someone from serving if he has a “conflict of interest.”25 The same Code of Federal Regulations defines what constitutes a conflict:
No employee shall participate in a criminal investigation or prosecution if he has a personal or political relationship with:
Any person substantially involved in the conduct that is the subject of the investigation or prosecution; or
Any person which he knows has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution.26
The regulation then explains that a personal relationship includes “friendships” and can be a cause for disqualification if they pose “a close and substantial connection of the type normally viewed as likely to induce partiality.”27 Several other regulations calling for recusal also govern the special counsel.
In applying these rules to the Mueller probe, it is clear that Comey is “substantially involved” in any obstruction investigation of Trump, as reported by the Washington Post.28 Indeed, he appears to be the only witness to the alleged Oval Office discussion about Flynn and was involved in conversations with the president that led to his firing. Since he admits he sought a special counsel to investigate Trump, he obviously has a “substantial interest” in the “outcome” of Mueller’s probe and potential prosecution. He is hardly an innocent or disinterested bystander.
A conflict of i
nterest is a situation in which an individual has competing interests or loyalties. Here, it sets up a clash between the special counsel’s self-interest or bias and his professional or public interest in discharging his responsibilities in a fair, objective, and impartial manner. Mueller’s close friendship with the key witness raises the likelihood of prejudice or favoritism which is anathema to the fair administration of justice. How can Americans have confidence in the results if they suspect that the special counsel may harbor bias? They cannot. The conflict inevitably discredits whatever conclusion is reached. It renders the entire investigatory exercise suspect, and it only elevates the controversy surrounding it.
Mueller had no choice but to disqualify himself. The law afforded him no discretion because the recusal is mandatory in its language. It does not say “may” or “can” or “might.” It says the special counsel “shall” recuse himself in such instances.
The Mueller-Comey friendship is well documented and indisputable. They have long been friends, allies, and partners. Their bond is driven by a mentor-protégé relationship which makes the likelihood of favoritism and partiality self-evident. This represents an acute conflict of interest. Even the appearance of a conflict merits recusal under the law (28 U.S.C. 528).29 Rules of professional responsibility that govern lawyers also prohibit the appearance of conflicts.30 Mueller might argue he believes he is capable of being neutral, but that is not the point of the law that requires disqualification based on appearances.
Mueller and Comey worked together in their respective positions at the FBI and Justice Department. In tandem, they handled several important cases. In one memorable case, they stood in solidarity, both threatening to resign over the warrantless wiretapping fiasco involving then-attorney general John Ashcroft in 2001.