The Folly of the Mueller Investigation

(Roman Genn)A hysteria without a cause; a report without a point

The pointlessness of it all. That is the major takeaway from Special Counsel Robert Mueller’s much-anticipated final report on the Trump/Russia probe.

After an exhaustive 22-month investigation, Mueller found that there was no criminal collusion between the Trump campaign and the Kremlin. This was already manifest to anyone who had closely followed the investigation — anyone, that is, who had taken note that no predicate crime was specified when Mueller was appointed (the special-counsel regulations require one), or anyone who had read the indictments Mueller filed, which demonstrated that Russia’s operations predated Trump’s entry into the 2016 campaign, that some of them were actually anti-Trump in nature, and that Russia (which is notoriously adept at espionage) neither needed nor sought American collaborators. “There is no allegation,” observed Deputy Attorney General Rod Rosenstein in announcing charges against Russian operatives brought by the special counsel he had appointed, “that any American was a knowing participant in this illegal activity.” Never was such an allegation even hinted at against the president, nor against any of his associates, a handful of whom were charged either with crimes that had nothing to do with the 2016 campaign or with process crimes (mostly lying to investigators) that were not committed until after the campaign was over.

Mueller was even arguably needed to answer only one question: Did President Trump obstruct justice? On that, Mueller abdicated, refusing to render a prosecutorial judgment. This dereliction of duty in his final act further elucidated that there was neither a legal basis nor a practical need for the appointment of a special counsel.

As we go to press, Mueller’s report has not yet been released. As is called for by regulation, the special counsel has submitted a confidential report, outlining his charging decisions and the rationale for them, to Attorney General William Barr. On Sunday, March 24, less than 48 hours after Mueller’s submission, Barr issued a four-page letter describing its principal conclusions. Democrats are stamping their feet for full disclosure; Barr has promised, by mid April at the latest, as much disclosure as grand-jury secrecy rules and classified-information concerns will allow.

Politics will, of course, be played when the report is published. Democrats will claim that it shows disturbing Trump–Russia collusion even if there is no criminal conspiracy. Trump supporters will claim that Mueller’s no-conspiracy finding means no collusion of any kind. Democrats will claim that Mueller’s refusal to make a finding on obstruction is a tacit plea for Congress to consider impeachment. Trump supporters will claim that there plainly is no obstruction case; that Mueller could have recommended an indictment if there were one; and that his reticence is just stubborn unwillingness to concede that his mostly Democratic staff’s aggressive theory — an effort to find obstruction in acts lawfully within the president’s discretion, such as firing FBI director James Comey — was infirm all along.

The bottom line, however, is not going to change: There never was a Trump–Russia conspiracy.

“Collusion” was the discordant mood music of Russiagate, but it was an overwrought obstruction allegation that triggered Mueller’s installation on May 17, 2017, by the order of Rosenstein (acting as attorney general because then-AG Jeff Sessions was recused). By then, the FBI had already been investigating Trump–Russia ties for more than ten months (exactly when, how, and why the investigation commenced remain unanswered questions).

Comey, despite repeatedly telling Trump he was not a suspect under investigation, stunningly announced in March 2017 congressional testimony that the FBI was investigating the Trump campaign for possible “coordination” in Russia’s cyber espionage. Increasingly frustrated by Comey’s refusal to state publicly the assurances he’d given Trump privately, the president fired the FBI director on May 9. In announcing the dismissal, Trump relied on a memorandum by Rosenstein, which cited bipartisan condemnation of the director’s mishandling of the Hillary Clinton emails caper during the 2016 campaign.

Why did a personnel decision that Rosenstein himself had endorsed become, just eight days later, Rosenstein’s pretext for a sprawling special-counsel investigation? The hapless deputy AG — a Republican careerist who had carefully cultivated good relations with Democrats — miscalculated that he would be lauded for his memo. Democrats, he failed to grasp, had moved on from rage over Comey’s role in Hillary Clinton’s defeat (particularly his public reopening of the criminal investigation against her a few days before the election). By the time Comey was canned, the FBI director had become useful as a thorn in Trump’s side, especially after he announced the Trump/Russia probe (in contravention of Justice Department rules against public commentary about investigations).

When Trump ousted Comey, Democrats posed as apoplectic. Trump clumsily tied Comey’s firing to his conduct of the Russia investigation in statements in an NBC News interview and (appallingly) during a White House visit by Russian diplomats. The president clearly meant that Comey had been falsely depicting him as complicit in Russia’s perfidy, but Democrats pounced, spinning Trump’s statements as admissions that Comey had been removed to impede the Russia investigation — notwithstanding that Trump never shut the probe down and even told NBC he wanted it done properly. The heat intensified when, based on a leak from Comey, the New York Times reported that Trump had leaned on the FBI to drop an investigation of former national-security adviser Michael Flynn.

Rosenstein became distraught as Democrats savaged him for his role in the affair, perceiving that Trump had hung him out to dry. Desperate to show he was still one of Washington’s good guys, he ludicrously brainstormed with Andrew McCabe, Comey’s deputy and acting successor, about invoking the 25th Amendment to remove Trump and about covertly recording the president in the Oval Office (Rosenstein says he was being sarcastic; McCabe says he seemed quite serious). Finally, with no warning to the White House or the attorney general, Rosenstein abruptly named Mueller as special counsel. Comey gloated that forcing the appointment of a special counsel to hound the White House had been the precise objective of his leak to the Times. Meanwhile, McCabe, who had led the cabal of anti-Trump FBI officials who ran both the Clinton-emails and the Trump/Russia investigations, opened an FBI investigation of Trump — rationalizing that the firing of McCabe’s former boss justified an obstruction probe even though the Constitution empowers the president to remove subordinate executive officers at will.

That is to say: The collusion probe came to Mueller primarily as an obstruction case. Since it was obvious from a very early point that there had been no collusion, the question of whether there was a prosecutable obstruction case was really the only one Mueller had to answer. In the end, he defaulted.

It is almost certain that Mueller knew by autumn 2017 that there was no Trump–Russia conspiracy. Trump railed about the investigation for public consumption, but the White House and his lawyers (especially the first team, led by John Dowd) provided sweeping cooperation, including hours of interviews with White House counsel Don McGahn and well over a million documents (among them, contemporaneous notes of McGahn’s meetings with the president). Though he could easily have claimed executive privilege to withhold this information from prosecutors, Trump never did.

Putting Mueller in charge effectively wrested control of the probe from the FBI. This may have been the appointment’s only saving grace.

The investigation was conducted under the auspices of the FBI’s counterintelligence authorities. Unlike criminal investigations, counterintelligence cases are generally not assigned a prosecutor, because the objective is to gather intelligence about a foreign power, not to build a prosecutable case. When the FBI ran the investigation with a green light from the Obama Justice Department, the bureau obtained spying warrants from a secret federal court — warrants substantially based on the “Steele dossier,” an opposition-research screed principally authored by former British spy Christopher Steele, who was working for the Clinton campaign (through a contractor, Fusion GPS). The dossier set forth sensational but unverified hearsay from unidentified sources and claimed a massive Trump–Russia conspiracy.

Four 90-day warrants, targeting former Trump-campaign adviser Carter Page, were issued beginning in October 2016, the campaign’s stretch run. The last warrant was issued in June 2017 — shortly after Mueller’s appointment, while he was still recruiting staff and getting his bearings. The warrant was due to lapse in September. To renew it, Mueller — by then on the job for four months — would have been in the position of reaffirming the Steele-driven allegation that the FBI believed the Trump campaign was in cahoots with the Kremlin. Mueller did not seek reauthorization of the spying warrant. In the interim, the main FBI investigators on the case who had been behind the warrant applications were quietly removed from the investigation. Eventually, most resigned or were fired, and the Justice Department’s inspector general is conducting an inquiry into their actions (as is a prosecutor assigned by Sessions).

A nagging question persists: Why did Mueller allow the investigation to continue for well over a year after it must have been patent that there was no collusion case? Indeed, the several indictments Mueller filed, including two against Russian operatives, appeared to preclude the possibility that the Kremlin sought to partner with any Americans, let alone with the Trump campaign. Why did neither Mueller nor Rosenstein issue an interim report? That would have enabled Trump to govern without a cloud of suspicion that he might be a clandestine agent of Russia, yet permitted the overarching inquiry into Russia’s operations and even the obstruction probe to continue. The country deserves an answer.

As for the obstruction inquiry, after 22 months of investigation, Mueller finally declined to make a prosecutorial judgment, dumping the matter in Barr’s lap. On this question, we know enough to hypothesize.

There is no doubt that a president may be cited for obstruction based on corrupt acts that tamper with witnesses and evidence (recall the Clinton and Nixon precedents). But no patently illegal acts were alleged against Trump. In their absence, Mueller’s team pursued a novel theory: An obstruction charge might be premised on lawful exercises of the president’s Article II prerogatives (e.g., firing subordinate officials, weighing in on the merits of investigations, considering pardons) if a prosecutor — the president’s subordinate — later deduced that the acts had been improperly motivated.

As the investigation continued, Trump nominated Barr to succeed Sessions as attorney general. Barr, a former head of the Office of Legal Counsel (the “lawyers’ lawyers” who make Justice Department policy), had been President George H. W. Bush’s attorney general. As is not uncommon for former top officials, he had weighed in on important policy matters from time to time over the years.

So it was on obstruction. In June 2018, Barr had submitted an unsolicited 20-page memo to Rosenstein. Citing the legislative history of the obstruction statutes, leading case law, and longstanding Justice Department policy, he contended that Mueller’s apparent theory of obstruction was legally untenable and practically unworkable. Putting the president aside, the theory would subject to possible prosecution any Justice Department supervisor who made a routine personnel decision during a case (say, reassigning a lawyer from one investigation to another) if some prosecutor later suspected an improper motive. Barr further made what should be an incontestable point: Given the damage such a prosecution can do to the nation’s governance, a president should not be prosecuted in the absence of something all reasonable people can agree is a clear, serious violation of law.

Once Barr was confirmed, Mueller had to see the handwriting on the wall: The new AG was not going to approve a dubious obstruction charge. The special counsel thus had a choice: concede that Barr was right on the law, or fight for the controversial theory his staff had pursued — i.e., recommend an obstruction charge and dare the AG to nix it. But Mueller shrank from making the decision, choosing merely to summarize the evidence and leave the prosecutorial judgment to Barr.

In consultation with Rosenstein, Barr found no prosecutable case. Deftly, he reasoned that even if one accepted the questionable premise that a lawful act can lead to an obstruction charge if corruptly motivated (Mueller’s theory), the case would still fail. Corruption, Barr elaborated, would have to be proved beyond a reasonable doubt, and here, where the president had not colluded with Russia and had cooperated with the investigation, it would be impossible to prove he had a corrupt intent to thwart the investigation.

The regulations prescribe that a special counsel may be appointed only if there is a factual basis to believe a crime has been committed as well as a conflict of interest that prevents the Justice Department from investigating. Here, there was neither. Rosenstein never articulated a crime in which the president was implicated. Since the question whether a conflict exists hinges on what the crime to be investigated is, there was no conflict either. As if to prove the latter point, Mueller proceeded to recruit his staff from the supposedly conflicted Justice Department. Later, he transferred several cases he had indicted to Justice Department components. Then, at the conclusion, he abdicated on the only prosecutorial decision he was arguably needed to make, leaving it to the Justice Department.

In the meantime, he let the president chafe under the yoke of suspicion long after it was manifest that there was no collusion case. All the while, the special counsel’s staff considered an unsound reinterpretation of obstruction law in order to nail Trump — after the Justice Department had bent over backwards in order to avoid charging Hillary Clinton with mishandling classified information, a concrete criminal allegation that was supported by weighty evidence.

It is a given by now that President Trump is his own worst enemy. He recruited the likes of Paul Manafort, with extensive ties to Moscow-friendly oligarchs, into his campaign. And the president’s Twitter rants against the special counsel and his own Justice Department, along with his conflicting explanations for firing Comey, fueled the narrative that he was obstructing the investigation. But there were no crimes, actual or colorably suspected, and there was no reason to appoint a special counsel — especially one who ended up kicking the can to the Justice Department anyway. The country has been taken on a pointless two-year ride.

This article appears as “Mueller’s Folly” in the April 22, 2019, print edition of National Review.

Continue reading at National Review