James Shott / Aug. 8, 2017

Mueller's Charge: Search for Justice, or Fishing Excursion?

A recap of how we got here and where this investigation into Russian election interference might be headed.

Back in May, the Department of Justice announced that Deputy Attorney General Rod J. Rosenstein had appointed a special counsel “to oversee the previously-confirmed FBI investigation of Russian government efforts to influence the 2016 presidential election and related matters.” That investigation is the source of much consternation.

Rosenstein said he had “determined that it is in the public interest for me to exercise my authority and appoint a special counsel to assume responsibility for this matter,” adding that his decision “is not a finding that crimes have been committed or that any prosecution is warranted.” Instead, he insisted, “What I have determined is that based upon the unique circumstances, the public interest requires me to place this investigation under the authority of a person who exercises a degree of independence from the normal chain of command.”

Rosenstein chose former Department of Justice official and former FBI Director Robert S. Mueller III, a man roundly praised by Democrats and Republicans alike for his impeccable credentials and the knowledge and ability to do the right thing.

However, some inconvenient truths have arisen over recent months.

By statute a special counsel’s or special prosecutor’s job is to investigate known crimes. As Rosenstein even admitted, no actual crime has been identified. In fact, the Russian involvement in the election that has commanded the attention of the media and Democrats for more than a year did not begin as a criminal case but rather a counterintelligence case.

As Mueller began recruiting his team of lawyers to assist in the investigation, it was noted that some of the early ones were donors to Democrat candidates. And to date, as reported by The Washington Post, of the 14 names confirmed by the special counsel’s office, seven of them have “donated a total of $60,787.77 to [Hillary] Clinton and other party candidates.”

William Barr, attorney general in the George H.W. Bush administration, told the Post, “In my view, prosecutors who make political contributions are identifying fairly strongly with a political party.” Can this investigation possibly be objective when such operatives are doing the investigating?

The order creating the special counsel ostensibly is for investigating Russian election involvement. However, it effectively has no limits. Having found nothing pursuable in the Russian intrigue, which was the reason for appointing a special counsel, Mueller has moved on to other topics. He is now looking into matters involving Lt. Gen. Michael Flynn. If/when that one runs its course, another empty space awaits, like President Donald Trump’s business dealings over the years.

It is not unlike bringing a construction company executive to an empty field without a plan to follow, and saying, “Build something.” There is no definite end to this process, unless someone somewhere can be indicted, or be persuaded to confess to something.

Critics say that Mueller’s job, and that of prosecutors generally, is to find a crime, and then to find a perpetrator, and it apparently is of little importance what the crime is, or who is responsible for it. Remember the investigation of Bill and Hillary Clinton in the Whitewater matter? It ended up being the Monica Lewinski matter. The two were barely related, if at all.

Prosecutors are known for “flipping” witnesses, pressuring them with prosecution for something — anything — to persuade them to tattle on someone — anyone — in order to avoid prosecution. A prosecutor’s job is, after all, to prosecute. No indictment in this matter indicates a failed investigation. Who wants that on their record?

Recently, Mueller impaneled a grand jury in Washington, DC, of all places. That’s significant because it’s an indication that Mueller is hot on the trail of criminal activity, not counterintelligence, but it also might indicate partisan motives. Of the location, Newt Gingrich noted, “President Trump got 68.63% in West Virginia, 4.8% in Washington DC. Guess where Mueller has a grand jury? Guess how biased it will be?”

It’s not just conservatives catching on to this element. Leftist law professor Alan Dershowitz wrote, “The District of Columbia jury pool will be overwhelmingly Democratic, by a ratio of close to 10 to 1. … There is no guarantee, of course, that a Democratic juror would vote to convict an indicated member of the Trump administration… But in selecting jurors from among the pool, most prosecutors would favor Democrats.”

Conservative talk-show host Mark Levin, a lawyer and president of the Landmark Legal Foundation, has a more threatening scenario. Calling it a “coup,” Levin said, “Let me tell you what’s going on here: they want to drag Donald Jr. in front of a grand jury and everybody else who was in that meeting — all eight of them — and see if they can find any contradictions in their testimony.” Since there was no crime involved, Levin said the purpose is to “see if they can get somebody on a ‘lie.’ Perjury.”

Former federal prosecutor Andrew McCarthy warns of another possible angle: impeachment. “Instead of returning an indictment, a grand jury may issue a report that recommends an official’s removal from office,” he says. “Thus, the question arises: Is Special Counsel Robert Mueller’s impaneling of a new grand jury in Washington step one in the impeachment of President Donald Trump?”

Some suggest that Mueller is in breach of the rules and should resign.

Rep. Trent Franks (R-AZ) said, “Bob Mueller is in clear violation of federal code and must resign to maintain the integrity of the investigation into alleged Russian ties. Those who worked under them have attested he and Jim Comey possess a close friendship, and they have delivered on-the-record statements effusing praise of one another.” He added, “No one knows Mr. Mueller’s true intentions, but neither can anyone dispute that he now clearly appears to be a partisan arbiter of justice. Accordingly, the law is also explicitly clear: he must step down based on this conflict of interest.”

Franks, a senior member of the House Judiciary Committee, noted that former FBI Director Comey, who first worked under Mueller, leaked information to the press to encourage the appointment of a special counsel. That presents a clear conflict of interest, defined by federal law as “a personal relationship with any person substantially involved in the conduct that is the subject of the investigation or prosecution.”

But Deputy AG Rosenstein insisted, “Bob Mueller understands and I understand the specific scope of the investigation, and so no, it’s not a fishing expedition.” Rosenstein promised to rein it in if necessary.

So to sum it all up, at best we have a bunch of Republicans being investigated by a bunch of Democrats, with a grand jury pool that is 10-1 Democrat. What could possibly go wrong?

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