Don’t Mess with Robert Mueller

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Robert Mueller could probably kill you. Even if he’s just prosecuting you, though, you should still be afraid. (Photo Credit: Getty Images)

What did you wish for in advance of 2018? One thing I am hoping for—but not banking on happening by any meansis that Robert Mueller and his team will be allowed to conduct their investigation into possible collusion between members of Donald Trump’s campaign and Russian officials undisturbed. As time wears on, my concern and the worries of many stand to grow as more and more Republicans begin to voice their opposition to the Mueller probe. Devin Nunes’ apparent assault on the credibility and unbiased work of Mueller and Co. is particularly troublesome for many, as Karoun Demirjian writes for The Washington Post. As you might recall, Nunes, chair of the House Intelligence Committee, stepped away from his involvement in leading the Committee’s own investigation into matters of Russia after he was accused of improperly disclosing classified information; this information was related to his own accusation of impropriety on the part of the Obama administration in exposing the identities of individuals tied to Trump on surveillance reports. Since being cleared of wrongdoing, however, per Demirjian, Nunes has stepped up his attacks on Mueller’s team and federal law enforcement agencies working with the probe, and while some Republicans in the House close to Nunes have distanced themselves from his tactics, other GOP members of the House Intelligence Committee seem willing to challenge the Mueller investigation with allegations of corruption.

The basis for any insinuations of bias or improper procedure herein seem to exist with respect to the revelation that members of Robert Mueller’s investigative team—who have since been removed from their roles—exchanged anti-Trump texts. Putting aside what appears to be that minor issue as well as other dubious proof of anti-Trump prejudice such as past criticisms of Trump by an FBI official and donations to Democratic Party candidates, there are those who object to the Mueller probe on the basis that it involves the criminal justice system into the workings of the executive and legislative branches. On both counts, though, there is ample room to debate whether these elements/qualities of the investigation merit a curtailing of or ending to it. David E. Kendall, an attorney at Williams & Connolly LLP, recently authored an opinion piece outlining his case for why Robert Mueller should be left alone. While we’re considering possible prejudice in forming opinions or effecting courses of action, it should be noted that Kendall’s firm represents Bill and Hillary Clinton, and has even since the time of the Kenneth Starr investigation into Bill’s, ahem, affairs.

Nevertheless, I would submit Kendall makes a compelling set of arguments as to why Republican criticism of the Mueller probe is overblown. First of all, on the idea that any anti-Trump prejudice has tainted the investigation:

In his Dec. 24 Sunday Opinion commentary, former Whitewater independent counsel Kenneth W. Starr proposed a “reset” of the Russia investigation in which Congress “steps up” to establish a bipartisan investigative panel and the “executive branch’s approach” changes from criminal law enforcement to some kind of nebulous fact-finding. Despite its bland profession of respect for the probe, Starr’s column was really just a subtler version of suddenly pervasive efforts by Trump apologists to undermine the investigation into Russian tampering with the 2016 election.

The reasons given for Starr’s reset are wholly specious: There is ostensibly a “drumbeat of criticism” aimed at special counsel Robert S. Mueller III which “has become deafening,” including “cascading revelations of anti-Trump bias.” This is true only on Fox News, in President Trump’s tweets and in the shoe pounding of the Freedom Caucus at legislative hearings. The claims of bias amount to some private comments of an FBI official criticizing candidate Trump (and other candidates). Despite the fact that government employees are entitled to have political opinions (so long as they do not interfere with their work, and there was no evidence of this), Mueller promptly removed this official.

The key thought in this reasoning is that there is no proof that any criticisms of Donald Trump as candidate or POTUS have impaired the investigation or have prevented it from being able to fairly assess whether there is evidence of the Trump campaign trying to collude with Russia and sway the 2016 presidential election. The obvious retort is that there is no proof these remarks haven’t compromised Mueller’s probe, but then again, that’s not how the law works—or at least is not how it’s supposed to work. You are innocent until proven guilty, no? In referencing Starr’s column in this way, David Kendall also responds to possible conflicts of interest regarding senior aides to Robert Mueller donating in the past to Democrats’ campaigns—which likewise do not mean the investigation can’t be conducted in a professional manner, as was the case when Starr conducted his own investigation into Bill Clinton’s conduct while at the same time being a Republican donor—and the idea that the FBI deputy director’s wife once ran for a legislative seat with financial backing from a friend of the Clintons, which has little to no bearing on Trump’s matters considering that this relationship has long since been disclosed and cleared, and besides, this deputy director is not even a part of Mueller’s team.

As for the notion championed by Kenneth Starr and others that a bipartisan congressional investigation is preferable to this independent investigation on Robert Mueller’s part, there are any number of ways that Kendall, or you, or I could attack this reason for a “reset” of the Russia probe. Before I get rolling with my pontification, I’ll let Mr. Kendall have the floor first. From the op-ed:

Starr’s misleading call for a “Watergate model” ignores the work of the Watergate Special Prosecution Force. It is true that the investigations of the Senate Watergate Committee in 1973 and of the House Judiciary Committee in 1974 were generally bipartisan and produced valuable information. But equally important was the work of the Watergate special prosecutor, first Archibald Cox and then Leon Jaworski, who fairly and thoroughly investigated criminal wrongdoing by President Richard M. Nixon and many of his top officials. It was that office’s successful pursuit of the Nixon White House tape recordings all the way through the Supreme Court, and its successful prosecution of several Nixon officials, that finally revealed the facts about Watergate.

So while a thorough, public, fair and bipartisan congressional investigation of Russian tampering would be terrific, good luck with that. Benghazi hearings anyone? The House and Senate intelligence committees have for months been conducting hearings on these issues, but these have been, particularly in the House, partisan, meandering, contentious and closed-door. And calling for a vague “fundamental . . . reset within the halls of the executive branch” on the part of the Trump administration is also utterly unrealistic. Firing the special counsel and all his staff would be the most likely “reset” by this White House.

Especially with the likes of a Trump apologist like Devin Nunes lurking, it would indeed seem unlikely that a fair investigation into Trump and Russia is possible in the current political climate. Either way, though, Kenneth Starr’s deprecation of Mueller, described by David Kendall as “a decorated Marine combat veteran, a Republican and a highly esteemed, long-serving law-enforcement professional,” is curious. I mean, the man was only able to serve as director of the FB-freaking-I for 12 years, a tenure that spanned presidents of different parties. If Robert Mueller, as a Republican, could challenge the George W. Bush White House on the use of unconstitutional domestic wiretapping and could disagree with the use of “enhanced interrogation” techniques in questioning terrorists, it is reasonable to assert that the man would be able to put politics aside to assess whether or not Trump and Co. acted specifically to obstruct justice. If the results of the probe thus far are any indication, after all, Mueller’s work has been fruitful indeed. Paul Manafort, Trump’s campaign director from June to August 2016, and Rick Gates, Manafort’s business associate and deputy of the campaign while Manafort was in charge, have already been charged in connection with the Mueller investigation. And Michael Flynn, the short-tenured Trump National Security adviser, has already pleaded guilty to lying to the FBI about contacting Russian ambassador Sergey Kislyak. This would not seem to be small potatoes.

The above doesn’t even include important considerations about those pointing the finger at Robert Mueller, nor does it mention another facet about findings from the American intelligence community that seemingly gets lost in the conversation about the viability of the investigation. With specific regard to Kenneth Starr, for instance, and as David Kendall alludes to, Kenneth Starr’s investigation of Bill Clinton was highly politicized, and as far as Congress goes, the trend seems to have continued into fairly recent times. See also the Benghazi probe. Different Clinton, same (largely speaking) waste of time and other resources. Even more importantly, though, if we believe the assessment of the U.S. intelligence community on Russian meddling in our elections, then there is a formal acknowledgment of a deliberate attempt by Russia to hurt the chances of Hillary Clinton in the election and to disparage her in favor of Donald Trump, as well as to undermine the confidence of the American people in the electoral process. One might well argue U.S. politics has already done its part to grease the proverbial slope of eroding confidence in this institution, so it’s doubtful that the Russians should receive too much credit simply for giving it a push, if you will, but at any rate, the desired effects were achieved. Even if such meddling did not yield the same impact, however, the level of concern about the integrity and security of our electoral process should be very high, for democracy’s sake.

This dovetails into my own common-sense reasoning on the matter of whether Donald Trump and those around him should be above the kind of scrutiny that Robert Mueller’s probe entails. Owing to how serious the issue of corruptibility of the American electoral process isand by this, I mean primarily from foreign sources, though there would certainly seem to be enough to go around on the domestic frontif Republicans and their ilk are truly serious about national security, and not just in the arena of border security and terrorism, they would welcome this investigation. After all, Pres. Trump is presumed innocent, right? Going back to the Karoun Demirjian article about Devin Nunes and characterizations of the House Intelligence Committee investigation, if Democrats’ depictions are true, then numerous flaws plague this look into any possible Trump-Russia connections, including denied requests for documents related to/interviews of key witnesses, as well as a haphazard schedule marked by overlapping interview times that is difficultif not impossibleto follow. As Demirjian characterizes this situation, per critics of the House probe, it all amounts to mere window-dressing to make the investigation seem respectable, but in the end, the key figures behind it already have their mind made up to absolve Trump and undercut Mueller’s examination of the evidence. Assuming the Mueller probe is not an abject waste of time, then, what do we presume is truly motivating resistance from the right to its very existence? Is it pure partisan politics? Or, and not merely to be a conspiracy theorist, do critics of the Mueller investigation fear that Donald Trump and those close to him are actually guilty?


The obvious and present concern with Robert Mueller’s investigation is how Donald Trump—the big fish at the heart of this episode of prosecutorial justice, as many see him—might try to screw with things on his end. It makes the obvious and present follow-up question to this concern, “Well, can Trump fire Mueller?” In a word, kinda? Laura Jarrett, reporting for CNN, explores this subject in a piece (very directly) titled, “Can Donald Trump fire Robert Mueller? And how would it work?” Under special prosecutorial regulations, the President can’t directly remove someone like Mueller—that function would go to the Attorney General. As you might recall, Jeff “Hmm, Maybe I Did Talk to a Russian Ambassador After All” Sessions has recused himself from investigative matters related to the 2016 election, meaning Deputy AG Rod Rosenstein, the man who appointed Mueller in the first place, would be the one to fire him. Rosenstein, at least from public statements, has indicated that he sees no reason to get rid of Mueller. (For the record, Trump, too, said he has no plans to send Mueller packing, but then again, the man is a lying liar who lies, so take his words with many grains of salt.) So, what Trump could do is fire Sessions, fire Rosenstein, and then the next person up could fire Mueller. Or, getting yet more theoretical, Trump could order the special prosecutorial regulations repealed and then he could fire Mueller himself. I mean, Trump has already broken with any number of conventions—what’s a few more?

The follow-up question to the follow-up question to the aforementioned obvious and present concern, then, is, “Should Donald Trump fire Robert Mueller even if he can?” Jarrett also addresses this, saying that, much as the decision to fire James Comey for apparent political reasons brought Trump additional and unwanted scrutiny, removing Mueller from the investigation would further suggest our President has something to hide. Furthermore, there’s every likelihood that firing Mueller won’t even kill his probe, as FBI Director Christopher Wray would take the reins and would presumably forge ahead with the investigation. The caveat to all this is, constitutionally speaking, the President of the United States is the head of law enforcement as the top dog in the executive branch. Consequently, if Trump were to give absolutely zero f**ks and get rid of Mueller himself, it doesn’t seem like there would be much legal recourse to challenge him on this point. For all the reverence the Constitution inspires, this apparent flaw in its design is one that Trump’s flippant disregard for this cornerstone of American law tests in a major way. The resemblance to Watergate, of course, is readily apparent. With Nixon, though, the man was facing certain impeachment and removal for his misdeeds. With Trump, there’s no same guarantee congressional Republicans would want to see him oustedespecially not after seeing their garbage tax plan get signed into law. By and large, the GOP is getting what it wants from Trump. Should, say, Trump’s approval rating become toxically low, though, or should Republicans lose control of the House, the Senate, or both, maybe the situation changes. That so much control is currently in the hands of President Agent Orange, Devin Nunes, and other sympathetic Republicans, meanwhile, is less than inspiring.

At least in advance of the 2018 midterms, though, it might just behoove Nunes et al. not to mess with Robert Mueller. If the opinions of voters mean anything to them, especially as regards their esteem of Mueller, they could be putting their personal political prospects in danger.

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