Ordinarily, I would tend to agree with those – like Rep. [score]Trey Gowdy[/score], for example – who urge continuing to suffer the special counsel investigation because, as they see it, doing so allows the familiar processes of law to work.
But today is a good day to pull up short, and recognize that the familiar processes of law are not at work.
That’s the inherent problem with a special counsel. And in the present case, the problem is compounded, because there was never a potential underlying “crime” to begin with.
Will this presidential election be the most important in American history?
It isn’t a crime to talk to Russians. That’s why no one targeted by the investigation who has indisputably talked to Russians has been indicted for it. Because it isn’t a crime.
It doesn’t matter if you find out that it happened. You also have to somehow demonstrate that it led to something else, and specifically, something that’s bad.
Yet the special counsel’s tasking never clarified what that “something else” was supposed to be.
In that regard, I want to remind readers of what I wrote back in May, when Robert Mueller was first appointed. What I wrote then remains true now. The basis of the investigation – the type of investigation it is – is a counterintelligence probe.
It’s not looking for crimes committed by Americans, as defined by federal statute. It’s a theory in search of evidence – about national security. Here, again, is the scope of the investigation, as laid out by the Justice Department:
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). [The special counsel statute. – J.E.]
The principal, substantive hook for the probe is “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” But it is not a crime to engage in links or coordination with the Russian government – not even if you’re running for office in the United States.
The hook for the probe is something that is not a crime. It’s something that, for politics’ sake, some people want to know more about.
That’s perfectly fair, and people on both sides of the aisle can legitimately agree that it’s a potential problem. But it doesn’t inherently justify using the tools of law enforcement. It’s a policy concern, having to do with appearances and possibilities. That is not the realm of law enforcement.
And from the very beginning, the “Russia investigation” has been characterized as a counterintelligence probe. See my post from May. That’s all it qualifies to be, because there is no suggestion of an underlying crime.
It’s a textbook case of a fishing expedition. A counterintelligence probe is a fishing expedition. That’s the deal with counterintelligence, which is directed at foreign agents and their activities, not at prosecuting the crimes of Americans. You gin the probe up to find out what’s there – not to gather court-ready evidence for a specific, statute-defined crime you believe happened.
With the Mueller probe, there is no body, no weapon, and no suspect; there is only a theory that something bad happened, and we don’t know what. That’s an intelligence problem, not a law enforcement problem.
So why are indictments being handed down at the special prosecutor’s behest for non-security-related, non-Russia-and-the-election-related wrongdoing? (I.e., the Manafort and Gates indictments.)
And why are we now learning of the possibility that George Papadopoulos, a minor player who’s been indicted for the process crime of lying about arranging meetings with Russians (which, again, is not itself a crime), wore a wire for Mueller?
Unless Papadopoulos was wearing a wire to talk to a Russian, this thing has gotten entirely out of hand. There was never any probable cause to bring down the whole weight of law enforcement on a bunch of Americans for activities that aren’t even crimes.
We don’t know for sure that Papadopoulos wore a wire at all – we just have some experienced people saying it sounds like it – but if he did, there’s nothing in the indictment against him to suggest that he would have worn it to talk to Russians. There doesn’t seem to be anything about his case that involved trying to catch Russians in hostile influence activities. If Papadopoulos was “proactively” cooperating with Mueller, it appears to have been in trying to catch Americans.
Keep in mind that the hypothetical evidence of a “Russian interference” scenario – the actual evidence – involves Russia hacking the DNC, Russia trying to hack the RNC (but not succeeding), Russia intruding into voter databases in some of the states, and Russia posting things on Facebook and Twitter.
Yet Robert Mueller is putting all his effort into probing the activities of the Trump campaign. Pardon my French, but Whisky Tango Foxtrot?
How did we get from “Russian interference” to “probing the Trump campaign” in the first place – much less from “probing the Trump campaign” to “indicting Paul Manafort for laundering money from Ukraine 10 years ago”?
Neither the Manafort/Gates charges nor the Papadopoulos charges will bring us any closer to understanding what the RUSSIANS DID IN 2016. It is a serious problem that we are paying a special counsel to lead a team of expensive lawyers down this rat hole.
Manafort and Gates are at least being charged with federal crimes that could have independently merited indictment and punishment. But that’s the whole ever-loving point: if they did, then there was no need for a special prosecutor. The Department of Justice could very well have taken care of that, in the course of its normal business.
I haven’t been entirely sure up to now how I feel about whether the special-counsel probe should be shut down or not. But after today’s gleanings from the Mueller show, I am now solidly in the corner of David Rivkin and Lee Casey, who argue in the Wall Street Journal that Trump needs to issue blanket, preemptive pardons, and the inquiry into how or if Russia influenced the 2016 election needs to be pursued where it should have been all along: in Congress.
If such a probe by Congress brings to light ways in which anyone from the Trump campaign – or any other American – colluded with Russia to exert some empirically demonstrable form of undue “influence” on the election, then we’ll have a lesson learned.
If our laws are inadequate to punish and deter such activities, Congress can then take appropriate action.
It is even worth letting the pardons cover the uranium-influence implications from earlier years, involving the Clintons and the Obama administration – something Rivkin and Casey suggest. I know a lot of people really wouldn’t like that, and I do understand. There’d be no “lock her up!” at the end of it.
But we would, again, have Congress to turn the spotlight on that matter, and the American people would learn facts, rather than being stymied at every turn by the higher priority of framing what happened to get indictments, and either prevent or try to generate process discrepancies.
What we don’t need, at all, is the perversion of the rule of law that is Mueller’s “counterintelligence special investigation”: a remarkable, open-ended fishing expedition in search of process-crime scalps based on no theory of an underlying crime.
We are way off track here, in the use of the power of government. If Mueller is supposed to be looking for how Russia influenced the election, the least he could be doing is focusing on the Facebook ads and the penetration of state voter-information servers. Instead, we’re getting unrelated money-laundering crimes by Manafort, and process crimes by a bit player whose significance appears to have been so limited that his only value to the prosecutor might have been in “proactive” cooperation — if that was even appropriate to the investigation, which we have no reason to believe is the case, and no oversight to guarantee that someone is exercising independent judgment about that.
