Saturday, May 20, 2017

Pucker Up Buttercups: It's Mueller Time

Scattershooting, while wondering whatever happened to John B. Henderson

The appointment of Bob Mueller as Special Counsel sends an unmistakable signal to every politico, white collar lawyer and potential target in DC. It's time to get serious. Think Fitzgerald on steroids. This will be a real investigation, with a real grand jury, and real prosecutors who know how to investigate, prosecute and keep their mouths shut. Expect plenty of collateral damage as well. There won't be any immunity giveaways or hand-wringing negotiations over the breadth of subpoenas. 

A number of commentators have suggested that Mueller is only "overseeing" the Russia Investigation, apparently in the same sense that an Attorney General oversees various criminal investigations within DOJ. Get a grip. Mueller will be totally involved in all strategic and tactical aspects of the case. He will be hands on. For God's sake, he and his lieutenants just resigned from their partnerships at Wilmer Hale to take on what could be one of the most significant criminal investigations in U.S. History, an investigation with profound implications for the country. He'll be there every day, every step of the way, and in total control. 

In today's WSJ (subscription required), Kimberly Strassel plants the seeds, in The Mueller Caveat, for a future Trump attack on Mueller. Of course Mueller's integrity is "unquestioned" but Strassel asks whether he can be "objective" about his old buddy Comey. This question assumes that Comey's firing will loom large in the Russia Investigation. I seriously doubt it. The contacts between Comey and President Trump in the period between inauguration and firing will certainly be looked at as a key to President Trump's intent and motives. But, barring new information, the idea that the firing itself constitutes criminal obstruction is unsound. It was no more an obstruction of justice than Nixon's firing of Archie Cox. Trump could fire Rod Rosenstein and Bob Mueller tomorrow and order their successors to shut down the Russia Investigation and it still wouldn't be an obstruction of justice. He is the chief executive of the Executive Branch and has the authority to fire either one of them. Don't think it is an impossibility. Of course, it would signal the beginning of the end of Trump's tenure.

Meanwhile, over on the left, the Comey flacks are out in force. It's comedy time at the New York Times with Saint James and Ben Wittes in starring roles. Michael S. Schmidt's NYT puff piece on Comey is a classic of the genre. Lawfare's Ben Wittes, an admitted Comey confidante, is interviewed and holds forth for the record. According to Wittes, Comey, pre-firing, had "concerns" about Rod Rosenstein's likely confirmation by the Senate. "He said, 'I don't know. I have some concerns. He's good, he's solid but he's also a survivor and you don't survive that long without making some compromises and I'm concerned about that.'" Translation: "Anyone who might consider firing me is by definition compromised." What a hoot. Comey would know all about survival and compromise. He's a 17 year DOJ veteran, who left at one point to take a $6 million per year job at Lockheed. Rosenstein on the other hand, prior to becoming DAG, spent his entire career in public service without a hint of impropriety. His reputation for straight-shooting is impeccable. Notably, Schmidt nowhere mentions Wittes's recent and unhinged hit piece on Rod Rosenstein in Lawfare.

I have a slightly different interpretation of Comey's concerns. I would have been concerned too, had I been in his shoes. Comey had been widely and correctly condemned by a broad and impartial sector of the legal and law enforcement community for his improper interference in the political process--an interference that violated longstanding DOJ policies and usurped DOJ's prosecutorial role. But Loretta Lynch was too politically damaged to fire him and Sally Yates, as a lame duck, was too weak. Comey knew that Rosenstein had the integrity and the stature to pull it off. Meanwhile, also in classic fashion, the broadcast media parroted the NYT. Joe Scarborough on Friday morning's show breathlessly reported Comey's "concerns" as if Comey, yesterday's goat, is now the nation's ethical ombudsman. 

Whatever happened to the idea that a respected public servant can make a serious mistake, even one that justifies his or her firing, and still be judged an honorable person based on the whole of his or her career? I know numerous people within the FBI and DOJ who have worked with Comey and have enormous respect for his abilities and integrity. This doesn't mean that he is flawless or that his conduct during the election renders him untouchable. By all means, let's have a public airing of all of the circumstances surrounding Comey's firing, assuming that it can be done without compromising Mueller's work. There is little doubt of President's Trump motivations. But let's not conflate the impropriety of President Trump's motives with the improprieties catalogued in Rosenstein's Memo.

(wisenberg)

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