The Russia Hoax

by Gregg Jarrett

  But the Mueller-Comey duo is best known for “badly bungling the biggest case they ever handled,” in a story recounted by journalist and author Carl M. Cannon, Washington bureau chief for RealClearPolitics.31 Letters laced with anthrax killed five people and infected seventeen others in Washington in 2001. Mueller, Comey, and others misinterpreted the evidence and botched the case by blaming an innocent man, Steven Hatfill, principally because drug-sniffing dogs seemed to take a liking to the suspect who had petted them. Cannon described it this way:

  Mueller, who micromanaged the anthrax case and fell in love with the dubious dog evidence, personally assured Ashcroft and presumably George W. Bush that in Steven Hatfill the bureau had its man. Comey, in turn, was asked by a skeptical Deputy Secretary of Defense Paul Wolfowitz if Hatfill was another Richard Jewell—the security guard wrongly accused of the Atlanta Olympics bombing. Comey replied that he was “absolutely certain” they weren’t making a mistake.

  Such certitude seems to be Comey’s default position in his professional life. Mueller didn’t exactly distinguish himself with contrition, either.32

  Their mistake ended up costing taxpayers $5.82 million in a legal settlement. But here is the interesting part that few people recall: Hatfill’s successful lawsuit accused the FBI and DOJ of leaking information about him to the media in violation of the Federal Privacy Act. Sound familiar? It was very much like Comey’s premeditated leak to the media of his now infamous memo reciting his alleged conversation with Trump. Perhaps, old habits are hard to break.

  Other news organizations have chronicled Mueller’s close friendship, including the Washington Post which entitled its story, “Brothers in Arms: The Long Friendship Between Mueller and Comey.”33 Perhaps most revealing was a lengthy Washingtonian story in 2013 describing in detail a deep friendship that stretches back over a decade. Mueller and Comey became “close partners and close allies.” So close, that at one critical juncture, “there was only one person in government whom Comey could confide in and trust: Bob Mueller.”34

  Against this backdrop, the inevitable conflict of interest comes into full view. If the special counsel is investigating whether the president tried to obstruct justice, the case becomes a test of “he said . . . he said.” Which man will Mueller believe? His good friend? Or the man who fired his good friend? How can Mueller fairly and impartially assess Comey’s credibility versus Trump’s? He cannot.

  Equally important, how can the public be assured that Mueller’s decision is free of prejudice, if not animus, driven by his affection for Comey? It is reasonable to assume that Mueller was not pleased to see his good friend fired by Trump. Might the special counsel be tempted to exact retribution by conjuring criminality or other wrongdoing where none may exist?

  There have been innumerable calls for the special counsel to recuse himself in favor of someone who could be more objective. Prominent law professors penned columns in USA Today requesting Mueller’s resignation.35 The editorial board of the Wall Street Journal emphasized how Mueller spent months hiding from Congress the truth about why Peter Strzok and Lisa Page had been removed from the special counsel probe. The board urged Mueller to step aside, noting that “the investigation would surely continue, though perhaps with someone who doesn’t think his job includes protecting the FBI and Mr. Comey from answering questions about their role in the 2016 election.”

  Mueller’s conflict of interest is twofold. It extended beyond his fast friendship with Comey, a pivotal witness in any obstruction case. Noted George Washington University legal scholar Jonathan Turley argued that Mueller’s meeting with the president created an additional disqualifying conflict:

  The White House has said that Mueller interviewed with Trump for the FBI position to replace Comey the day before he was made special counsel. If this conversation occurred, Trump may have explained why he fired Comey and what he was looking for in his replacement. With obstruction a focus of the investigation, that makes Mueller a possible witness in his own investigation.36

  In other words, on a Tuesday Mueller was interviewed by the president to become the FBI director, but on Wednesday Mueller accepted the job to investigate the president. Surely, Mueller knew he was under consideration to be named special counsel. Such important appointments don’t unfold spontaneously in a day. Still, as he was sitting there talking with Trump, he never advised the president that he might investigate him. Was Mueller secretly attempting to gather evidence from Trump to incriminate him? Did they discuss the president’s reasons for firing Comey which Mueller could then use in an obstruction case against Trump? Even if Mueller is not a witness in his own case, his interaction with the president created a disqualifying conflict of interest. The appearance of duplicity was more than a sufficient basis to recuse himself from consideration as special counsel. He should never, in good conscience and under ethical rules, have accepted the position.

  It is hard to believe that Mueller had the audacity to accept the position as special counsel that involves, in part, the president’s firing of Comey when Mueller was directly involved in the aftermath of that firing. Ask yourself whether it is fair or ethical for a person who was passed over for a job to suddenly reverse course the next day to investigate the man who declined to give him the job. Or perhaps that was Mueller’s plan all along. Maybe he had an ulterior motive. Did he devise a sub rosa plan to gather evidence from Trump that he could then use as special counsel, while pretending to be interviewing for the job of FBI director? It is a distinct possibility. If so, it was deceptive and dishonest. Was Comey involved in the plan? Former federal prosecutor Sidney Powell wrote a book about corruption in the Justice Department, Licensed to Lie.37 She surmised that Mueller, Comey, and Rosenstein (who previously worked for Mueller) “communicated extensively and hatched this plan for Mueller to be special counsel—if not prior to Comey’s termination, then immediately after it.”38

  The point here is not that this is likely what happened. The point is that, at every step, this investigation was steered by a very small group of people who have known each other and worked together for years. There is nothing remotely approaching independence here.

  Compounding the conflict is the evidence that Comey himself may have committed crimes, as outlined in previous chapters. Will Mueller be tempted to ignore the evidence against his friend and choose not to investigate and prosecute Comey? This is another flagrant conflict of interest that compelled Mueller’s departure from the case.

  Byron York, chief political correspondent for the Washington Examiner, who argued that “Mueller should resign” given his conflict of interest, pointed out the irony explained to him by one of several lawyers he consulted on Capitol Hill:

  The whole purpose of the special counsel is to have a prosecutor from outside the government and outside the normal chain of command because inherent conflicts render the Justice Department incapable of handling it. So, now the special counsel is a close friend (mentor/mentee relationship) with the star witness, who by his own admission leaked the memos at least in part to engineer the appointment of a special counsel. Only in Washington. You can’t make this stuff up.39

  Even scrupulously honest people can be influenced in ways they do not recognize themselves. It is the human condition. This is why there are legal and ethical rules that demand recusal based on prior personal relationships. Mueller’s conflict is manifest. It is not fair to Trump as the reported subject of the investigation, and it is certainly not fair to the American public. They deserve a legal process that is devoid of partiality or, at the very least, the appearance of it.

  By reputation, Mueller is an honest man who has served the public in high positions of government. His service and heroism in the Marine Corps during the Vietnam War is admirable. While there is little doubt about his integrity, it is fair to question his judgment. His refusal to recognize two disqualifying conflicts of interest suggest he may harbor a bias. His investigation involving the president of the United States is a serious m
atter and, therefore, necessitates a special counsel who is beyond reproach in both conduct and appearance. His decision to accept the position in the face of ethical rules discouraging it indicates his judgment has been compromised.

  The special counsel regulations require that a person “outside” the Department of Justice, which includes the FBI, be chosen.40 The reason is quite simple: to avoid conflicts of interest with individuals who work for those departments so that the investigation can be fair and objective. However, in selecting Mueller, Rosenstein picked the ultimate “insider.” Mueller spent years as a top official at the Justice Department and also served as director of the FBI. He knew just about everyone and was particularly close to Comey and Rosenstein. While it is true that Mueller was no longer employed at DOJ when he was named special counsel, his various conflicts of interest demonstrate that he was exactly the kind of person the regulations sought to avoid. Many other qualified lawyers would have been better suited for the job and could have brought a greater sense of impartiality and legitimacy to the process.

  The unfortunate decision was made, of course, by Rosenstein, who was beset by his conflicts of interest.

  Rosenstein Should Have Recused Himself

  Deputy Attorney General Rod Rosenstein has a conflict of interest so acute that no sincere debate could be waged on whether he should have stepped aside. No credible argument can be made in his favor. His refusal to recuse himself in the face of ethical rules that demand his disqualification underscores just how tainted and corrupt the special counsel investigation has become.

  It is well established that Mueller is examining whether Trump’s firing of Comey was a “corrupt” act intended to obstruct any investigation into Trump-Russian “collusion.”41 The president has insisted that he relied in whole or in part on Rosenstein’s recommendation that Comey be terminated for the reasons detailed in the deputy AG’s memorandum of May 9, 2017.42 As Mueller seeks to determine Trump’s intent, Rosenstein is a central witness. He had conversations with the president and Attorney General Jeff Sessions about discharging Comey on May 8, 2017, and, perhaps, on other occasions.43

  Under the regulations (28 C.F.R. 600.7), Rosenstein is in charge of the special counsel’s investigation and is Mueller’s direct supervisor.44 As acting attorney general on the case, Rosenstein oversees it, authorizing the scope of the special counsel’s probe. He also wields the ultimate power to decide whether a prosecution will be brought, as stated in the regulations:

  The Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued.45

  The Wall Street Journal has reported that Mueller’s office interviewed Rosenstein in June or July 2017.46 Think about what that represents. Mueller answers to Rosenstein, but the special counsel and/or his deputies interviewed their boss as a witness. That boss, in turn, plays an instrumental role in deciding whether any case will be leveled against the president based, in whole or in part, on his own testimony.

  In an appearance before members of the House of Representatives in May 2017, Rosenstein was questioned as to “who had asked him, if anyone had asked him, to write his memorandum.” His answer was quite simple, “That is Bob Mueller’s purview.”47 By refusing to disclose who requested that he compose the memo, Rosenstein was admitting that the very investigation he was supervising would involve himself as a witness.

  It is fundamentally wrong and unethical for Rosenstein to supervise a case in which he is a chief witness and to simultaneously judge whether a prosecution should be brought. That is the equivalent of a prosecutor putting his boss or himself on the witness stand to testify in the very case he is prosecuting. A lawyer cannot be an investigator, witness, prosecutor, and judge, all rolled into one. Rosenstein plays each of these roles in a single case. His failure to disqualify himself is a serious lapse in judgment. Such conduct is strictly forbidden by the Rules of Professional Conduct.48

  Understandably, Trump complained about Rosenstein’s conflict of interest in a tweet: “I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director. Witch Hunt!”49 His point was a valid one. In one short sentence, he enunciated the flagrant conflict that prompted Professor Turley to conclude, “If Mueller is investigating Trump for obstruction, Rosenstein should immediately recuse himself.”50 His failure to do so, wrote Turley, “is a glaring ethical omission.”51 The same regulations that required Mueller to step down apply to Rosenstein, as well. Yet, both men refused to do so. This renders the entire special counsel’s investigation inherently suspect amid persistent questions of self-interest, political bias, and a lack of objectivity.

  Jack Goldsmith, professor of law at Harvard University and a former assistant attorney general, observed that Rosenstein is a “fact witness in any obstruction inquiry” because he “possesses information about the president’s beliefs and motives” in firing Comey. He added, “I cannot fathom how, in this light, he remains the supervisor in charge of that investigation, since a reasonable person would question his impartiality.”52

  Rosenstein has been mum on the subject of recusal, except to say that he would do so if needed.53 The public is supposed to trust him, even in the face of the appearance of impropriety due to his conflict as a witness. Rosenstein is a vital witness in the case as evidenced by the report that he was interviewed by the special counsel about Trump’s stated motives in firing Comey. As noted in the last chapter, the acting attorney general told investigators that the president knew the firing of the FBI director would not end the Trump-Russia probe, which would discredit any claim that Trump tried to obstruct the case.54 Rosenstein cannot claim he is merely a peripheral witness who need not be recused. This represents all the more reason why he should have disqualified himself from the case.

  Beyond his conflict of interest, Rosenstein had no legal basis to appoint a special counsel to begin with since there was no discernable crime. Joseph diGenova, a former independent counsel and former U.S. Attorney, was unsparing in his condemnation of Rosenstein’s actions:

  His conduct from the beginning has been a disgrace. Rod Rosenstein has single-handedly taken away from the sitting President of the United States sixteen months (and counting) of his presidency by his incompetent and fearful conduct. Rosenstein appointed Mueller because he didn’t want to make the tough decisions that you’d have to make if you were supervising a case being run by a U.S. Attorney.55

  But in addition to appointing a special counsel without a legal basis, Rosenstein also approved the team of partisans put together by Mueller to assist him.

  Mueller Assembled a Team of Partisans

  Mueller sabotaged his own investigation. He has only himself to blame for ruining what could have been viewed as a credible probe.

  He deliberately assembled a team of partisans with a history of political bias who appear determined to undo the results of the 2016 presidential election and drive President Trump from office. Mueller did more than choose to stack the deck of his special counsel staff with biased crusaders. He hired many people with direct, personal connections to Hillary Clinton, transforming what was supposed to be an impartial investigation into an illegitimate and seemingly corrupt one. Rosenstein, who had direct oversight and supervision, condoned the staff selection. He could have objected and demanded that Mueller hire a more balanced team of lawyers and investigators who might have brought a measure of neutrality and objectivity to the investigation. He did not do this.

  The media has always been quick to point out that Mueller is a Republican. However, this may or may not be true now. While Mueller was known to be a member of the GOP when he was appointed as FBI director in 2001, “his current party registration is not clear.”56 He has served in government positions under appointment by leaders of both parties. President Bill Clinton nominated Mueller to be U.S. A
ttorney for the Northern District of California in 1998.57 In 2011, President Barack Obama asked Mueller to stay on as director of the FBI.58 His political predilections are something he rarely discloses. But his actions as special counsel showed clear partisanship.

  Among the sixteen publicly confirmed lawyers hired by Mueller, not a single one of them is registered as a Republican, according to an in-depth analysis of records by the Daily Caller.59 A similar investigation by Fox News confirmed the same findings.60 Thirteen of the attorneys are registered Democrats, while three have no party affiliation. The majority of them have donated to Democrats, including several who gave money to the Obama and Clinton presidential campaigns. Only one lawyer, James Quarles, made donations to Republicans, but the two contributions he made pale in comparison to the nearly $38,000 he gave to Democrats.61 Even more disturbing than the political imbalance on Mueller’s staff are the instances of bias that many on the team harbor.

  The bias of Peter Strzok and Lisa Page has been well documented herein. They were removed from the team as a consequence.

  After them, the most notorious is Andrew Weissmann. After Acting Attorney General Sally Yates, an Obama holdover, defied a direct order from President Trump to defend his newly issued travel ban, Weissmann sent her a message, “I am so proud . . . and in awe. Thank you so much. All my deepest respects.”62 This fawning email to Yates spoke volumes about Weissmann’s contempt for Trump and his lack of partiality in his role investigating the president. But that’s not all. When Clinton threw what she thought would be an election night victory party at the Javits Center in New York City, Weissmann attended the bash that quickly turned sour when Trump won.63

  Weissmann is a prosecutor who is known for what has been described as abusive tactics, using the law as a weapon in a sometimes unprincipled quest to convict. He has been accused of suppressing evidence and threatening witnesses.64 Innocent people have been victimized by his maneuvers. Some of his biggest cases were reversed by higher courts.