We will be talking about this endlessly in the days ahead, so I’ll keep comments brief here.
On Wednesday, Deputy Attorney General Rod Rosenstein, acting on behalf of the DOJ because Jeff Sessions earlier recused himself from all aspects of the Russia probe, appointed former FBI director Robert S. Mueller as special counsel to conduct the investigation of “the Russian government’s efforts to interfere in the 2016 presidential election.”
According to the DOJ appointment order (link from the DOJ page here), Mueller’s investigation is defined as follows:
The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including:
(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and
(ii) any matters that arose or may arise directly from the investigation; and
(iii) any other matters within the scope of 28 C.F.R. § 600.4(a).
This is an ambiguous development. The Bloomberg report (top link) indicated that “It isn’t clear if Trump had a role in the decision.”
It doesn’t sound like it, based on what I’m hearing on Fox right now. But Trump has just stated (in essence; I don’t have the exact wording and am going by what Fox reported) that he is fine with the special counsel and looks forward to being exonerated from suspicion.
I join James Tobin in being dubious, largely because the modern history of special prosecutors (which I’ve written about before) has been mostly one of overreach, political exploitation, and, frankly, injustice.
But there’s another reason. The underlying matter of this investigation is not a crime committed by Americans under U.S. law. It’s a counterintelligence investigation against the actions of Russia. That, at least, is how James Comey briefed it to Congress in March 2017. In fact, all the reporting about the investigation up to then had pointed to the same characterization.
A counterintelligence investigation isn’t one that starts with knowing something specific happened; i.e., a crime. It’s an investigation looking for specifics, based on suspicions raised by collateral events. The Russia-election theme is a particularly vague, formless set of collateral events, amounting to the alleged “hacking” of some Democratic email systems (along with attempts to intrude into GOP computer systems); alleged attempts to intrude into several state election-related IT systems — which were unsuccessful; and the probable, but by no means conclusively demonstrated, use of standard Russian “disinformation” to try to influence the American public via the media.
And let us recall, one more time, that there has been not one scintilla of evidence that the Trump campaign had anything whatsoever to do with any of this, whether it traces back to Russia or not.
A special counsel for a counterintelligence investigation is new territory. Previous special prosecutors have all been appointed to investigate evidence of actual crimes punishable under U.S. law. Even the weakest premises for them have been something concrete and specific to develop evidence-quality information about.
But this is not the investigation of a crime. It’s effectively an intelligence probe, whose outcome cannot reasonably be expected to be criminal prosecutions — but instead, a list of findings and conclusions that could very well be classified, and that the public will never see. Inherently, with an intelligence probe, we don’t know the scope or nature of what we’re going to discover, nor do our laws prescribe in advance particular controls on how we interpret or handle it.
I am profoundly uneasy at the prospect of a special counsel, answerable to no one, being given the charter to look for a whole bunch of stuff we don’t even have reason to believe exists. Republicans are feeling reassured that Robert Mueller has been appointed, and there is no doubt that he has a strong reputation for professional and personal integrity.
But how will existing law apply to this hybrid investigation, and who will oversee the overseer? Mueller being in charge of the investigation is likely to get crossways of the political hopes of Trump’s bureaucratic opponents. Those opponents have been ingenious at manufacturing the appearance of damning information, even though that “information” never turns into actual evidence of anything. We haven’t seen yet what will be thrown at Mueller, and how much control he will really have over what gets taken seriously in the investigation. He’s just had a big target painted on his back.
Trump’s bureaucratic opponents have also been ingenious at throwing defamatory shade on everyone who gets in their way. It is not unreasonable to anticipate that Mueller may end up being effectively forced out of this appointment. Obviously, I can’t know today that that will happen, but it’s sillier to insist that it can’t than to suspect that it might. The charter of the special counsel won’t end, in such a case. It will go to someone else.
If that should happen, the “safe harbor” of a special investigation will start looking a lot less safe. Note the dynamic here. The Democrats have been calling for a special prosecutor since November 2016 (see links above), in spite of the continuing absence of any evidence that there is a Trump connection requiring investigation. (As for what Russia may have done to try to interfere in the U.S. election, hey, open season. Knock yourselves out, national agencies. That’s what you’re there for.)
Now the Democrats have gotten the special prosecutor they have wanted since right after the election. To get that outcome, the media and a group of anti-Trump bureaucrats colluded to make the public, and Republican politicians, freaked out, off balance, and uneasy for months, until appointing the special prosecutor seemed like the only thing that would make the chaotic fury stop. Nothing changed about the underlying matter, between November 2016 and today. But the sheer incessant noise wore people down.
It is an illusion to think that the Democrats will be happy with letting Mueller’s investigation take its course. They’ve been talking about impeachment since before Trump was even inaugurated, and they’re not going to suddenly be satisfied with a special prosecutor who can’t come up with anything to bring down Trump with.
Republicans have gotten rolled here. I stress that the machinations of Trump’s opponents have been backfiring on them for two years at this point, and it may well be that an unexpected turn we don’t see in the road ahead will thwart his opponents again. But if America gets that happy outcome — i.e., the man elected to the presidency by due process of law remains in office — it will be in spite of the nominal GOP majority in the halls of government.