Category Archives: Special Counsel

Crime? What Crime?

What is the crime?
By Holman W. Jenkins, Jr.
WSJ Dec. 1, 2017 6:36 p.m.

Retired Lt. Gen. Mike Flynn on Friday pleaded guilty to lying about a non-crime. Even Adam Schiff, the House Democrat most determined to ride the Russia collusion story to bigger and better things, acknowledged that conferring with a representative of Russia about the incoming administration’s Russia policy is not illegal or improper.


These discussions concerned a United Nations Security Council vote on Israel (in effect the Trump team was asking Moscow for a favor on behalf of a U.S. ally, Israel). The discussions concerned Russia’s response to President Obama’s lame-duck sanctions for Russian meddling in the U.S. election.

Such talks, we learn from Robert Mueller’s investigation, were directed by a “very senior member” of the transition team. Why shouldn’t that be President-elect Donald Trump or somebody directly conversant with his views—a k a Jared Kushner ? Voters may remember Mr. Trump saying during the campaign that he wanted improved relations with Russia. He would be doing nothing illegal here.

Then why make Mr. Flynn plead guilty to a crime related to a non-crime, unless Bob Mueller thinks he’s enlisting Mr. Flynn’s cooperation in pursuit of real crimes? Well, Mr. Mueller’s job is to get to the bottom of the Russia question, and it doesn’t help to have people lying about even things that are non-crimes. What’s more, as Mr. Flynn would have known better than most, Russian Ambassador Sergey Kislyak was a prime target for U.S. surveillance. American voters will remember that Obama officials illegally leaked contents of some of these conversations to the press during the transition. Lying about these very same conversations to the FBI wouldn’t seem to have made much sense for Mr. Flynn. But if a key witness and former high-ranking official persists in a disproven and unnecessary lie, how do you not charge him?

Let’s recall a couple of things. For president, the American people elected a reality TV star and brand manager who came with a bundle of impulses but not deep knowledge of anything other than building large structures.

His plans/hopes with respect to Russia may have been unrealistic, but an incoming administration is elected to follow its own policies, not those of its predecessor. Second, unless he was completely unconversant with political reality, Mr. Trump understood by then that Democrats had settled on a story of Russia collusion to excuse Hillary Clinton’s loss and to discredit the incoming president.

Unfortunately, what we learned on Friday about all this was microscopic in relation to the magnitude of air time devoted to hyping events. The scandal has reached “inside the gates of the White House,” blared multiple news outlets. Uh-huh. Mr. Flynn worked there for 24 days, and none of this is evidence of any presumed conspiracy between the Kremlin and the campaign to put Mr. Trump in the White House. Wasn’t that the original question? The crime the media are trying to make out of these events is the crime of having diplomatic relations with Russia.

The talents that outfit somebody to be on TV are not necessarily talents that lend themselves to instantaneous dissection of breaking news. Inevitably, time is filled up with prejudices and tropes because, you know, time must be filled up.

This is sad but par for the course. Take James Comey, the retired FBI head. He could fill in a great deal of important information. He knows a lot about a lot of things that would be useful to hear, including about the Trump dossier and a Russian role in sparking his intervention in the Hillary Clinton email matter. Instead of shedding light, he drops Bible verses on Twitter. A man who knows so many vital truths and won’t tell them might do better to say nothing at all.

Anything is possible, including some conspiratorial quid pro quo between somebody in the Trump campaign and somebody representing Vladimir Putin. If Mr. Putin really wanted Mr. Trump’s election, then the two were certainly working toward compatible ends—at least to the extent that Mr. Trump, in some part of his brain, really did want to be president. When it comes to working toward compatible ends, though, this also appears to be true of Russian intelligence and the Clinton campaign and, quite possibly, Russian intelligence and the FBI in some instances.

At the same time, we would be stupid not to understand that other countries have a stake in the outcome of our elections and, by omission or commission, try to advance their interests. This is reality. After the Trump election, the direction of causation in the ensuing Russia scandal in my judgment seems fairly clear. The media and bureaucracy reject Mr. Trump not because they got wind of Russia. They were determined to reject Mr. Trump and Russia was handy.

Appeared in the December 2, 2017, print edition.


Prosecutors Gone Wild

We ignore at our own peril..
By Daniel Henninger
WSJ 11/15/2017

American politics has become an endless fox hunt. The hounds’ heads jerked up this week on news that Attorney General Jeff Sessions, responding to a request from House Judiciary Committee Chairman Bob Goodlatte, had asked the Justice Department’s career lawyers to look into the possibility of appointing a second special prosecutor, to investigate Hillary Clinton.

Set aside for a moment what the precise meaning of “investigate” might be. The day doesn’t pass anymore without a demand, from the Oval Office or the ozone, that someone should “look into” some political malefaction. Theoretically, we could have public officials being led to the executioner’s block weekly in Washington.

Indeed, the movement to name a second special prosecutor flows from the fact that the Washington press corps in January decided en masse to “look into” the notion that the Trump campaign had colluded with Russia to defeat Mrs. Clinton, a thought dropped into the water by the departing Obama administration.

What followed was a river of stories purporting Trump-Russian collusion. Months later, it remains true that the federal code recognizes no crime called “collusion.” Eventually the river of collusion stories joined with Oval Office mania over them to produce special prosecutor Robert Mueller.

A fiction exists that Mr. Mueller represents the “rule of law.” In truth, Mr. Mueller looks about as relevant as a lawyer wandering around the smoking battlefield at Gettysburg. We are in the midst of a multifront political war—between Republicans and Democrats, and President Trump and the Beltway media.

The central, contested issue in this war is the acceptability of Mr. Trump’s presidency. The Trump opposition believes that a Trump presidency remains unthinkable and abhorrent, so opposing it is a moral imperative. But however intense the imperative, it’s nothing more than that, because the formal politics are moot. Mr. Trump received more Electoral College votes than Mrs. Clinton.

But so deep is the antipathy to the existence of a Trump presidency—forget that someone has to deal with North Korea’s nuclear-armed missiles, the Middle East or the U.S. economy—that the opposition has spent nearly a year hoping just one more Russian collusion story would . . . do what? Make Mr. Trump evaporate?

So there is a kind of delicious temptation to embrace the idea of a second special prosecutor to “investigate” the Clintons. Why not? A lot of people on the right and left have been spoiling for a street fight over the 2016 election, so let’s have it out. Light the torch and set off a bonfire of special prosecutors.

The people who brought us the Trump-Russia collusion narrative are now weeping crocodile tears that the appointment of a second prosecutor would mean that President Trump is politicizing and weaponizing the Justice Department.

Oh my. They should have thought of that before they approved how the nation’s security agencies weaponized the press last January.

Time to sober up. A self-indulgent American political class, reveling in perpetual tumult, is pushing the U.S. toward a significant crisis. The appointment of a second special prosecutor would bring that crisis closer.

Primary U.S. institutions are already on thin ice with the American people. Start with the malperformance of institutions once thought trustworthy, whether the unprecedented collusion leaks from the intelligence agencies or James Comey’s ham-handed and toopublic tenure at the FBI.

Mr. Mueller’s team of prosecutors represents a rebuke of the Justice Department’s credibility and standing. His first act, the Paul Manafort indictment, was a pre-existing case that Justice offloaded to Mr. Mueller. If Mike Flynn or anyone else has violated the Foreign Agents Registration Act, Justice should prosecute, not the deus ex machina of a special prosecutor.

Political accountability remains crucial in a system as open as ours, and historically the press has provided much of that oversight. That’s changed. The media’s referee role has morphed into relentless political tendentiousness.

The media dresses up its collusion stories with insinuations that something illegal has occurred. In fact, the criminal law’s traditionally high bar of proof is being replaced by a weaker, more volatile standard from prehistory. In short, where’s there’s smoke, there must be guilt, so erect a special prosecutor to concoct indictments. This is a formula for creating unappeasable political resentments. Pressure builds; the system blows.

If you want to hate Donald Trump, feel free. But a sane world would have dropped the Russia stuff months ago, just as a sane world would get over Hillary’s crimes so that what’s left of the country’s institutions could get back to normal governing.

It won’t happen. Politics as a permanent bonfire has become both a thrill ride and a business model. But let me wonder who benefits from this scenario: The day that the Trump Justice Department names a Clinton special prosecutor will be the day Mr. Trump’s impeachment is guaranteed, if the Democrats take the House in 2018. After that, let ’er rip.



I’m Not Sure I Like the Ship That Just Left the Dock

I am nervous about this, to say the least.
WSJ 6/17/2017

That didn’t take long. Barely a week after James Comey admitted leaking a memo to tee up a special counsel against Donald Trump, multiple news reports based on leaks confirm that special counsel Robert Mueller is investigating the President for obstruction of justice. You don’t have to be a Trump partisan to have concerns about where all of this headed.

President Trump has reportedly stepped back this week from his temptation to fire Mr. Mueller, and that’s the right decision. The chief executive has the constitutional power to fire a special counsel through the chain of command at the Justice Department, but doing so would be a political debacle by suggesting he has something to hide.

Deputy Attorney General Rod Rosenstein, who appointed Mr. Mueller, would surely resign, and other officials might resign as well until someone at Justice fulfilled Mr. Trump’s orders. The President’s opponents would think it’s Christmas. The dismissal would put the President’s political allies in a terrible spot and further distract from what are make-or-break months for his agenda on Capitol Hill. His tweets attacking the probe are also counterproductive, but by now we know he won’t stop.

*          *         *

There are nonetheless good reasons to raise questions about Mr. Mueller’s investigation, and those concerns are growing as we learn more about his close ties to Mr. Comey, some of his previous behavior, and the people he has hired for his special counsel staff. The country needs a fair investigation of the facts, not a vendetta to take down Mr. Trump or vindicate the tribe of career prosecutors and FBI agents to which Messrs. Mueller and Comey belong.

Start with the fact that Mr. Comey told the Senate last week that he asked a buddy to leak his memo about Mr. Trump specifically “because I thought that might prompt the appointment of a special counsel.” Did Mr. Comey then suggest Mr. Mueller’s name to Mr. Rosenstein? He certainly praised Mr. Mueller to the skies at his Senate hearing.

The two former FBI directors are long-time friends who share a similar personal righteousness. Mr. Mueller, then running the FBI, joined Mr. Comey, then Deputy Attorney General, in threatening to resign in 2004 over George W. Bush’s antiterror wiretaps.

Less well known is how Mr. Mueller resisted direction from the White House in 2006 after he sent agents with a warrant to search then Democratic Rep. William Jefferson’s congressional office on a Saturday night without seeking legislative- branch permission. The unprecedented raid failed to distinguish between documents relevant to corruption and those that were part of legislative deliberation. GOP Speaker Dennis Hastert rightly objected to this as an executive violation of the separation of powers and took his concerns to Mr. Bush.

The President asked his chief of staff, Joshua Bolten, to ask Mr. Mueller to return the Jefferson documents that he could seek again through regular channels, but the FBI chief refused. Attorney General Alberto Gonzales was also unable to move the FBI director. When Mr. Bolten asked again, Mr. Mueller said he wouldn’t tolerate political interference in a criminal probe, as if the Republican Mr. Bushwas trying to protect a corrupt Democrat. Mr. Mueller threatened to resign, and the dispute was settled only after Mr. Bush ordered the seized documents sealed for 45 days until Congress and Mr. Mueller could work out a compromise.

The D.C. Circuit Court of Appeals later ruled that the FBI raid had violated the Constitution’s Speech or Debate Clause and Mr. Jefferson’s “non-disclosure privilege” as a Member of Congress, though the court let Justice keep the documents citing Supreme Court precedent on the exclusionary rule for collecting evidence.

We relate all this because it shows how Mr. Mueller let his prosecutorial willfulness interfere with proper constitutional and executivebranch procedure. This showed bad judgment. He shares this habit with Mr. Comey.

*          *         *

Meanwhile, Mr. Mueller’s staff appointments suggest that he is preparing for a long prosecutorial campaign. One unusual choice is Michael Dreeben, a highly regarded Deputy Solicitor General whose expertise is criminal law and the Constitution. He is not a prosecutor or counter-intelligence expert. Is Mr. Dreeben on hand to make a legal case for impeachment?

The special counsel has also recruited Andrew Weissmann, who oversaw the Enron Task Force and led the prosecution of the Arthur Andersen accounting firm. The Supreme Court unanimously overturned Andersen’s conviction, though too late for Andersen’s 28,000 U.S. employees.

Mr. Weissmann has donated to Hillary Clinton’s political campaign, but more relevant for this case he was highly criticized for his legal conduct over the years by the New York Observer newspaper. “In Andrew Weissmann, The DOJ Makes a Stunningly Bad Choice for Crucial Role,” said one headline in January 2015. The owner of the Observer at the time? Jared Kushner, President Trump’s son in law and now a White House aide.

With that history, can Mr. Weissmann fairly judge the actions of the Trump family and campaign? And knowing that history, why would Mr. Mueller choose Mr. Weissmann for his prosecutorial team when the appearance of fairness is crucial to public acceptance of the result?

As it happens, the Washington Post reported in its second big story this week that Mr. Mueller “is investigating the finances and business dealings of Jared Kushner.” A fair question is whether Mr. Weissmann is another Patrick Fitzgerald who won’t stop until he nails someone in this probe.

*          *         *

Mr. Mueller is widely admired and no one questions his personal integrity, but we raise these issues because the stakes for American democracy are so high. As we’ve said from the beginning, Russian meddling in U.S. elections is a serious matter and Americans need to know what happened. If Mr. Trump or key associates canoodled with the Russians to steal an election, then he must face the likely consequence of impeachment.

But the public has seen no such evidence, and the FBI has been looking for months. Instead we have leaks that the special counsel whose friend was fired by Donald Trump is focusing on obstruction of an investigation into an underlying crime that so far doesn’t exist. In Watergate at least there was a third-rate burglary.

Much of Washington clearly views Mr. Mueller as their agent to rid the country of a President they despise. Every political and social incentive in that city will press Mr. Mueller to oblige. But you cannot topple a duly elected President based merely on innuendo or partisan distaste without doing great harm to democracy.

Richard Nixon’s road to resignation was painful but the facts were clear enough at the end that most Americans accepted the result. The country deserves no less concerning Donald Trump, no matter his character flaws. Mr. Mueller and his team of zealous prosecutors have a duty to bring a case based only on solid and conclusive evidence. Otherwise close the case with dispatch and move on.

American politics is divisive and dysfunctional as it is. Imagine what it will be like if millions of Americans conclude that a presidential election is being overturned by an elite consensus across the vast ideological and cultural divide running all the way from the New York Times to the Washington Post.