Robert Mueller and the Sor­cerer’s Ap­pren­tice

The Jewish Voice - - OP - ED - By: John M. El­lis

Did Pres­i­dent Trump have a right to be an­noyed with Jeff Ses­sions for re­cus­ing him­self? A plau­si­ble case can be made that Ses­sions didn’t have to do it, but then there’s an equally plau­si­ble case that he did. The real grounds for crit­i­ciz­ing Ses­sions lie else­where: once he de­cided that he would need to re­cuse him­self, Ses­sions had a duty to make sure that a re­place­ment was on hand who was up to the task that Ses­sions had sidestepped. That he did not do. Rod Rosen­stein has made one griev­ous mis­take af­ter an­other, with no end in sight.

Rosen­stein’s most im­por­tant er­ror was the com­plete in­co­her­ence of his state­ment of the scope of the in­ves­ti­ga­tion in his or­der of May 17 ap­point­ing Robert Mueller as Spe­cial Coun­sel: “…any links and/ or co­or­di­na­tion be­tween the Rus­sian gov­ern­ment and in­di­vid­u­als as­so­ci­ated with the cam­paign of Pres­i­dent Don­ald Trump.” Here he spec­i­fied no par­tic­u­lar ac­tor (there are scores that this might re­fer to) nor par­tic­u­lar ac­tions, times or places, nor even crimes, be­cause “links” and “co­or­di­na­tion” are not in them­selves crim­i­nal.

Think about what Spe­cial Coun­sel was be­ing asked to do. Ab­sent any spe­cific al­le­ga­tions, he would need to do some­thing akin to prov­ing a neg­a­tive. Prov­ing that a spe­cific event ac­tu­ally hap­pened is pos­si­ble be­cause the de­tails of that event tell us where to look, but prov­ing that some­thing never hap­pened is im­pos­si­ble be­cause it could have hap­pened at any time or place and by ac­tion of any per­son. We could never ex­haust all the pos­si­bil­i­ties. Sim­i­larly, for Spe­cial Coun­sel to reach the con­clu­sion that no co­or­di­na­tion ever took place is a log­i­cal im­pos­si­bil­ity: it would re­quire that he retroac­tively mon­i­tor ev­ery mo­ment of the life of ev­ery per­son in­volved in the Trump cam­paign, and that he seize ev­ery con­ceiv­able record of all such peo­ple.

If he only asked for phone records, he would miss ev­i­dence in emails, but if he also asked for emails, he would miss ev­i­dence in writ­ten cor­re­spon­dence. And if he asked only for all of these, he would miss what di­aries can tell him. And then there are text messages… But even all of this would not be enough: he would need to look into what other peo­ple’s records might tell him about each per­son’s ac­tiv­i­ties. (But which other peo­ple? How many?) Mueller would have to do this for ev­ery sin­gle one of Trump’s cam­paign staff.

But since he can’t cite any crim­i­nal act, he has no le­gal grounds to get any of this ev­i­dence. The Code of Fed­eral Reg­u­la­tions, Ti­tle 28, Sec­tion 600, pro­vides that Spe­cial Coun­sel shall have no spe­cial pow­ers but only those of any other U.S. At­tor­ney, and that he must fol­low all rules and reg­u­la­tions of the Jus­tice De­part­ment. Like ev­ery other U.S. At­tor­ney, he’d have to show why he needs records, and hav­ing no al­leged crime to base his re­quest on, he can’t.

To get any­thing at all he’d have to pro­ceed un­eth­i­cally and in vi­o­la­tion of the law. There is a now well-known Spe­cial Coun­sel tac­tic: fo­cus on a per­son who has been close to the pres­i­dent, seize all his records, then look for any in­frac­tion what­so­ever that will give you the chance to squeeze him by of­fer­ing im­mu­nity in ex­change for some­thing that will dam­age the pres­i­dent. That seems to be what Mueller is do­ing: he has man­aged to per­suade a gullible judge that, con­trary to the ex­plicit pro­vi­sions of Sec­tion 600, the mys­tique of a Spe­cial Coun­sel’s in­ves­ti­ga­tion gives him the power to seize large quan­ti­ties of ev­i­dence from Paul Manafort with­out ev­i­dence of a crime. Let’s be clear about this: it amounts to try­ing to find out whether at some mo­ment or other on some day or other and in some place or other Manafort just might have com­mit­ted some crime or other. The U.S. Con­sti­tu­tion pro­tects us all from un­rea­son­able searches and seizures, and this is the ul­ti­mate un­rea­son­able search. See­ing this, Rosen­stein ought to have in­ter­vened to stop this ugly be­hav­ior. But how can he? The charge he gave Mueller vir­tu­ally leaves him no al­ter­na­tive.

Un­der the cur­rently op­er­a­tive rules, a Spe­cial Coun­sel is not com­pletely in­de­pen­dent: he has a su­per­vi­sor, the act­ing at­tor­ney gen­eral. But Rosen­stein ei­ther can’t or won’t su­per­vise Mueller. Many have pointed out that Mueller’s ap­pointees in­clude large num­bers of prom­i­nent donors to the Clin­ton cam­paign, with none on the other side. Rosen­stein should long since have told Mueller to stop do­ing this, both be­cause it’s un­fair and be­cause it has un­der­mined pub­lic con­fi­dence in his in­ves­ti­ga­tion. More im­por­tant still, his ap­pointees have the most fla­grant con­flicts of in­ter­est.

Take sim­ply one case, that of Jean­nie Rhee: Rhee worked for the Clin­ton Foun­da­tion, but she was also Hil­lary Clin­ton’s per­sonal lawyer in the mat­ter of her emails. Mueller saw no prob­lem in hir­ing her as one of his se­nior staff. Yet the hack­ing of DNC emails al­legedly by the Rus­sians is at the very cen­ter of Muller’s in­ves­ti­ga­tion, and Rhee has di­rect prior par­ti­san in­volve­ment pre­cisely there, where it mat­ters most. She doesn’t just have a con­flict — she has the worst pos­si­ble con­flict of in­ter­est. Rosen­stein should have told Mueller to get rid of Rhee im­me­di­ately, and to make sure that none of his staff are con­flicted. But he does noth­ing

It’s fair to ask at this point: what does this episode tell us about Mueller’s fitness for the po­si­tion to which he has been ap­pointed? If he didn’t no­tice this and other sim­i­lar con­flicts, he is in­com­pe­tent. But if he knew about them and still wanted such peo­ple on his team, then he must be a ruth­less par­ti­san, and a man com­pletely lack­ing in in­tegrity. An in­ves­ti­ga­tion of this kind looks above all for cor­rup­tion in gov­ern­ment. Haven’t we al­ready found it in these peo­ple be­ing hired by this Spe­cial Coun­sel?

Many other cir­cum­stances sur­round­ing the Mueller ap­point­ment throw doubt on Rosen­stein’s abil­ity to do the job Ses­sions left to him. In his June 8 tes­ti­mony James Comey said that he leaked a memo about his con­ver­sa­tion with Pres­i­dent Trump in or­der to whip up pub­lic pres­sure for the ap­point­ment of a Spe­cial Coun­sel. In essence, he freely ad­mit­ted that he was try­ing to stam­pede Rosen­stein into a hasty, ill-con­sid­ered ac­tion — and he suc­ceeded. Rosen­stein al­lowed him­self to be ma­nip­u­lated, and the ut­ter in­co­her­ence of his or­der is the mea­sure of how ill-con­sid­ered his ac­tion was. Worse still, Comey pub­licly hu­mil­i­ated Rosen­stein by ex­plain­ing just how he had played him: now every­one knew that an in­ves­ti­ga­tion of ex­tra­or­di­nary na­tional im­por­tance had been ini­ti­ated by sleazy and de­vi­ous be­hav­ior on Comey’s part. The onus was now on Rosen­stein to re­pair the dam­age done

by his fail­ure to un­der­stand how he was ma­nip­u­lated. He did noth­ing.

Yet an­other prob­lem cre­ated by Rosen­stein’s pan­icked ac­tion was his choice of Mueller to head the in­ves­ti­ga­tion. Since Comey’s fir­ing was an im­por­tant part of the whole af­fair, Mueller’s no­to­ri­ously close per­sonal and pro­fes­sional re­la­tion­ship with Comey should have ruled him out. But by the time that Comey (in his June 8 tes­ti­mony) re­vealed the full depth of his an­tag­o­nism to the Pres­i­dent, that point had be­come much stronger. Mueller’s cred­i­bil­ity had by then com­pletely evap­o­rated. But Rosen­stein still did noth­ing.

Now at last it has come to light that the hack­ing and dis­sem­i­na­tion of the DNC emails was done not by the Rus­sians (as Obama’s in­tel­li­gence chiefs falsely as­sured us with such smug con­fi­dence) but by a DNC in­sider. This new rev­e­la­tion re­moves the only fac­tual ba­sis that has ever ex­isted for the Mueller in­ves­ti­ga­tion. And still, Rosen­stein does noth­ing.

When he re­cused him­self, At­tor­ney Gen­eral Ses­sions had a duty to en­sure that the per­son who would stand in for him was up to the job. Clearly, Rosen­stein was not. He has seemed like the sor­cerer’s ap­pren­tice, who couldn’t re­sist ex­er­cis­ing his mas­ter’s pow­ers, but didn’t re­ally un­der­stand what he was set­ting in mo­tion. As things have got more and more out of con­trol, he has seemed pow­er­less to stop them. It’s time for the boss to re­turn and boot the ap­pren­tice out of his study.

John M El­lis is Dis­tin­guished Pro­fes­sor Emer­i­tus at the Univer­sity of Cal­i­for­nia, Santa Cruz.

Rosen­stein’s most im­por­tant er­ror was the com­plete in­co­her­ence of his state­ment of the scope of the in­ves­ti­ga­tion in his or­der of May 17 ap­point­ing Robert Mueller as Spe­cial Coun­sel

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