The Mueller hearing exposes why there had to be a special counsel

The Mueller hearing exposes why there had to be a special counsel
Mueller hearing, July 2019. C-SPAN video

Robert Mueller did not have a good day in the House Judiciary Committee hearing on Wednesday.  The Washington Post gamely went with a strategy of praising his appearance with faint damns, but it had to be a tough slog to come up with that much.

The defining moment was probably when Mueller stated that he was “not familiar with” Fusion GPS, the political operations firm behind the Steele dossier that drove the narrative of Russiagate.

That was a point Mueller would have to sink himself with – along with his 22 months of work – regardless of why he said it.  If he was lying, or if he was telling the truth, either way he blew up everything connected with his “investigation” and report.

Even in the best case – that Mueller was being truthful – Fusion’s role was so central that there is no way to disavow knowledge of it and retain credibility as a finder of findings on the “Russia-Trump” matter.

It was one of many points to ponder from the day, such as Mueller’s seeming forgetfulness, aspect of age and infirmity, reflexive need to check with his attorney, Aaron Zebley, on the simplest of answers, and general air of not knowing what was in the special counsel report that bears his name.  All of them tend to lead to the same conclusion: there is no way Mueller was actively directing the special counsel operation during its 22-month run.

Mueller was a figurehead, apparently chosen to fill that role.  In the aftermath, he actually turns out to be a pretty good foil for forensic penetration of the special counsel’s workings, because it’s not just that few people have the heart to put the old fellow on the rack.  It looks like it wouldn’t do any good.  He doesn’t know anything.

That’s important – and for a reason beyond the point that putting a passive Mueller at the helm allowed Andrew Weissmann and a gang of partisan Hillary donors to run the special counsel operation.

The process of framing that reason roiled around in my brain throughout the day, until Laura Ingraham said something pertinent in her evening broadcast of The Angle on Fox News.

Her comment went to this effect: this – the special counsel probe – could have been handled by line prosecutors at the Justice Department.  There was no need for a special counsel at all.

And while that’s a valid observation if we accept that it was a “probe,” the larger reality is that it wasn’t.  It was never a probe, in the sense of investigating a matter brought to the attention of law enforcement by genuine, independently occurring, unmanipulated developments.

Rather, as we all chanted, about 18 months ago, it had no criminal predicate.  In Peter Strzok’s texted words, there was no “there there.”  Without a criminal predicate or any “there,” properly supervised line prosecutors would have had nothing obvious – nothing lawful – to do about the situation.  Doing something anyway had to be an operation of a unique kind.

That’s why the instigators of the special counsel appointment needed a very special special counsel.  They needed one as unfettered as possible by statutory investigative restraints and conventional expectations about its product.  They needed one that could operate under the protection of an iconic reputation, without having the bearer of that reputation become an inconvenience.

So a special counsel charter was constructed that did not, in fact, fit anything the line prosecutors at the Justice Department could have gotten away with.  As a number of expert commentators noted in 2017 – e.g., Andrew McCarthy, Jonathan Turley, Alan Dershowitz – the special counsel’s hybrid charter for counterintelligence investigation and potential criminal findings in “other matters” was unprecedented.

Basically, the role of this particular special counsel was just made up on the fly, pushing the boundaries of the intent of law.  It really was a probe with a personal focus – on Trump and his associates – but without an underlying crime.

We needn’t doubt the willingness of the permanent establishment, or “deep state,” to simply make up a way to charter the special counsel it needed.  We’ve been reminded this same week that that’s the “make it up” principle James Comey used to keep tabs on the new Trump administration from inside the White House in early 2017.

Paul Sperry reported on it at Real Clear Investigations on Monday, based on briefs from people familiar with the DOJ IG investigation of Spygate (the operation against Trump).  Comey couldn’t deploy an individual with a “Hi, I’m from James Comey” nametag for this purpose at the White House, so he made another – unprecedented – arrangement:

At the same time Comey was personally scrutinizing the president during meetings in the White House and phone conversations from the FBI, he had an agent inside the White House working on the Russia investigation, where he reported back to FBI headquarters about Trump and his aides, according to officials familiar with the matter. The agent, Anthony Ferrante, who specialized in cyber crime, left the White House around the same time Comey was fired and soon joined a security consulting firm, where he contracted with BuzzFeed to lead the news site’s efforts to verify the Steele dossier, in connection with a defamation lawsuit.

Knowledgeable sources inside the Trump White House say Comey carved out an extraordinary new position for Ferrante, which allowed him to remain on reserve status at the FBI while working in the White House as a cybersecurity adviser.

“In an unprecedented action, Comey created a new FBI reserve position for Ferrante, enabling him to have an ongoing relationship with the agency, retaining his clearances and enabling him to come back in [to bureau headquarters],” said a former National Security Council official who requested anonymity.

Making up new, unique personnel positions; making up new, unique charter frameworks for a special counsel.  All done to skirt the limits imposed by inconvenient laws and circumstances.

There have been numerous reminders in recent months of how these and similar actions facilitated the lawless use of the resources of government.  Some of the worst involved laying life-altering perjury traps for people who never deserved any such treatment, like Michael Flynn and George Papadopoulos.  Another, of course was the earlier charade by which FISA surveillance authority was obtained against Carter Page – whose life has been so well and truly excavated by now that if there had ever been anything to justify such an intrusion, we’d have seen actual fruit from it months and months ago.

I’ll highlight in closing just one more instance from the Mueller hearing on 24 July.

In a remarkable exchange with Mueller toward the end of the hearings, Rep. Debbie Lesko (R-AZ) listed the number of times points of “fact” were established in Volume II of the Mueller report by citing news reporting.  She went through a litany: how many from the Washington Post, the New York Times, Fox News, etc.

Start at 3:45:

In all, her count was nearly 200 instances.  Although she didn’t get a chance to emphasize a significant point about this – the chair, Jerry Nadler (D-NY), cut her off – I’ll emphasize it here.  It’s something that hadn’t leaped out at me before, but did so as Lesko made her case.

It hadn’t fully registered with me, in perusing the Mueller report, that the long, gratuitous, hearsay brief against Trump laid out in Volume II comes – as Lesko observes – mostly from the news-source citations.

That means not only that the document relies heavily on uncorroborated hearsay, in the portion of it routinely used by Democrats to claim that there’s a case for impeaching Trump.

It means, in all probability, that Fusion GPS generated the content of much of Volume II.  Perhaps David Brock’s media “war room” was behind some of it as well.  There may be others (e.g., working at the behest of David Jones, the former Feinstein protégé who formed his own political operations firm in 2017. See here as well).

And some of it may well have come from politicians on Capitol Hill, repeating injected rumors to their media confidants.  All of it was filtered into the public record through the nameplate media.

Injecting a lot of gratuitous, specifically selected media citations into a post-investigation summary is something no line prosecutor in the Justice Department could get away with.  So, no: line prosecutors in the Justice Department could not have handled the true purpose of the Mueller special counsel operation.  It took the most tendentiously interpreted, unprecedented design for a “special counsel” to do that.

J.E. Dyer

J.E. Dyer

J.E. Dyer is a retired Naval Intelligence officer who lives in Southern California, blogging as The Optimistic Conservative for domestic tranquility and world peace. Her articles have appeared at Hot Air, Commentary’s Contentions, Patheos, The Daily Caller, The Jewish Press, and The Weekly Standard.