President Donald Trump’s missteps have intensified the scandal that is consuming his administration.
One is tempted to put scandal in scare quotes. Trump is somehow enmeshed in a scandal based on actions that a president is fully entitled to take — such as dismissing the FBI director and weighing in on the merits of continuing an investigation of his former national-security adviser. It is, in addition, a scandal born of Trump’s desperation to publicize information that is true and that a president is fully entitled to publicize — such as the facts that the president had been assured by the FBI director on multiple occasions that he is not a criminal suspect, that the FBI director made the same representation to members of Congress, and that a months-long investigation had turned up no evidence of “collusion” between his campaign and the Kremlin.
That is largely Trump’s doing. The tweet-tirades about phantom wiretaps (which undermined his credibility to raise what may be a real Obama-administration abuse of foreign-intelligence powers). The decision to fire FBI director James Comey, not timed to occur when Trump justifiably dismissed dozens of Obama Justice Department appointees at the start of the administration (the new broom that sweeps clean), but triggered by a fit of pique over Comey’s selective public commentary on the “Russia investigation” — thus fueling the “obstruction” narrative. The multiple conflicting explanations for Comey’s removal. The bizarre decision to meet Russian diplomats the day after Comey’s dismissal and, shamefully, to berate the former director in their presence. And, of course, more tweets, such as the self-destructive suggestion of a Watergate-resonant White House taping system (that almost certainly does not exist).
But if Trump is his own worst enemy, his Justice Department is not far behind.
To understand why, I will reiterate my two-part working theory for why we have a mess, albeit one that, as a matter of law rather than appearances, falls woefully short of obstruction. First, Trump lobbied for the investigation of Michael Flynn to be dropped — something he could lawfully have ordered to be done — because he (a) was feeling remorse over Flynn’s humiliating removal as national-security adviser and (b) thought further investigation and potential prosecution would be overkill. Second, Trump’s decision to fire Comey — something he was lawfully entitled to do — was not an endeavor to influence the FBI’s investigation of Russian interference in the 2016 campaign; it was the result of exasperation over Comey’s skewed public statements about the investigation, which created the misimpression that Trump was a criminal suspect.
On the latter score, I am not saying that Comey intended to mislead the public, although I imagine Trump probably believes he did. For what it’s worth, I accept the former director’s explanation: After his (self-induced) nightmare over the Hillary Clinton e-mails investigation, Comey was reluctant to announce that Trump was not a suspect; he feared that if Trump’s status later changed, he would have to correct his announcement, thus making matters worse for Trump (as his similar flip-flop did for Clinton).
If that was his fear, though, Comey should have refrained from any public comments at all — which is what law enforcement is supposed to do. Instead, during congressional testimony, he made an unnecessary announcement about the Russia investigation that led the media to report, and much of the public to believe, that Trump was a suspect in possible crimes. Once he did that, it was unreasonable to refuse to correct this misimpression by publicly acknowledging that Trump was not a suspect. It is all well and good to agitate over a “duty to correct,” but Comey glides past the more basic duty not to make gratuitous prejudicial statements in the first place. Trump fired the FBI director because he was being badly hurt by that testimony. He wanted it publicly known that he was not a suspect (which Comey had privately assured him, multiple times).
Trump saw Comey as the obstacle to that disclosure. Whether too uninformed or too paralyzed, the president did not grasp that he was entitled to order Comey to make the disclosure, or to do it himself (as he eventually did, only upon firing the FBI director).
With that as background, let’s turn to the Justice Department’s four bad calls.
1. The Flynn Investigation and Interrogation
Based on illegal leaks of classified information, it has been reported that the FBI investigated Flynn, and the Obama Justice Department considered indicting him, after Flynn engaged in communications with Russian ambassador Sergey Kislyak. There was nothing inappropriate about the Flynn-Kislyak discussions. At the time, Flynn was a top Trump transition official slated to become national-security adviser. In that capacity, he was supposed to be having contacts with his future foreign counterparts. The point of having a transition phase is to enable an incoming administration to hit the ground running. Moreover, because Kislyak, as an operative of a hostile foreign power, was under FBI surveillance, the bureau knew (and informed what the New York Times furtively described as “Obama advisers”) that Flynn had done nothing improper in these discussions — i.e., no quid pro quo involving a lifting of Obama-imposed sanctions in exchange for Russia’s meddling in the election to Hillary Clinton’s detriment.
There appears to have been no basis to consider Flynn a suspect. Yet the Justice Department had the FBI interrogate him about the Kislyak conversations even though it had recordings of them and thus did not need Flynn’s input. This, combined with the reports that the Justice Department was, absurdly, considering an indictment of Flynn under the unconstitutional, never-invoked Logan Act, has led to speculation that the Justice Department was gunning for Flynn, a harsh Obama critic. That is, Obama officials were hoping Flynn would lie so he could be indicted for making false statements to investigating agents. Reportedly, Flynn misled the FBI agents about whether sanctions had been discussed (just as he misled Vice President Mike Pence — which led to Flynn’s dismissal).
To be sure, if Flynn lied to investigators, that’s on him — he could easily have declined to speak, or simply told the truth. Still, there appears to have been no justification for considering him a suspect and interrogating him as such. That is what led Trump, in the immediate aftermath of the painful decision to fire Flynn, to lean on Comey to drop the investigation. That, in turn, is the spark that lit the obstruction fire.
Intriguingly, CNN reported on February 17, three days after the Trump-Comey discussion about Flynn, that the FBI had decided not to pursue false-statements charges against Flynn. Comey has testified that he ignored Trump’s lobbying on Flynn’s behalf.
2. The Sessions Recusal
On March 2, just three weeks after being sworn in as attorney general, Jeff Sessions recused himself from involvement in any campaign-related investigations. This included, of course, the one involving Russia’s election-meddling. At the time, Sessions was the only Trump appointee at the Obama-stocked Justice Department, a situation that continued until Rod Rosenstein was finally confirmed as deputy attorney general (DAG) in late April.
The recusal was unnecessary, or at least premature. At a Senate hearing, Sessions had given inadvertently inaccurate but easily explainable testimony regarding his contacts with Russian officials. But those contacts were minimal and unrelated to the 2016 campaign — nothing to do with Russian interference, much less Trump collusion.
Sessions has testified that he based his recusal on advice from Justice Department officials and a federal regulation. But as I have explained, the regulation did not require his disqualification: it calls for recusal from “a criminal investigation or prosecution” as to which an official is conflicted; the so-called Russia investigation is neither — it is a counterintelligence investigation.
Sessions could have delayed any disqualification decision until there was an actual criminal investigation — or, if there already was one (for example, the false-statements investigation of Flynn), he could have limited the recusal to that investigation. But in overreaction to false allegations that he had perjured himself at the Senate hearing, Sessions bowed to media-Democrat demands and announced a recusal more sweeping than it needed to be.
The recusal was unnecessary, or at least premature.
The result? Sessions was not consulted on Comey’s March 20 testimony. He was thus unable to direct the FBI director not to make a misleading announcement that suggested Trump was a suspect (more on that in a moment).
Furthermore, Democrats have been able to portray Sessions’s participation in the decision to fire Comey as a violation of his recusal — and thus another injection of scandal in the obstruction storyline. Of course, even if Sessions had properly and narrowly recused himself from any criminal investigations related to Russia’s election-meddling, he would still have been fully entitled to weigh in on the removal of the FBI director, one of the attorney general’s most important subordinates. If Sessions were disqualified from that, he would effectively be disqualified from functioning as AG.
3. Comey’s March 20 Testimony
In his House testimony, Comey made the explosive public announcement, in contravention of Justice Department policy, that (a) the FBI was conducting a counterintelligence investigation of the Russian government’s efforts to interfere in the election; (b) this probe included “investigating the nature of any links between individuals associated with the Trump campaign and the Russian government, and whether there was any coordination between the campaign and Russia’s efforts”; and (c) the FBI would further assess whether any crimes were committed.
As any sensible person would have anticipated, this announcement led the media to report, and much of the public to believe, that Trump was a suspect in potential crimes related to “collusion” with Russia. Though Comey privately assured Trump, before and after the testimony, that Trump was not a suspect, and though Comey privately assured members of Congress that Trump was not a suspect, Comey did not include this salient detail in his announcement.
The then-director began his statement by asserting that he had been “authorized by the Department of Justice” to make this announcement. As noted above, Sessions had by then recused himself, but Rosenstein was not yet confirmed — that would take another month. On March 20, the acting DAG was Dana Boente, a longtime prosecutor whom President Obama and his attorney general, Eric Holder, had appointed to U.S. attorney slots in Louisiana and Virginia.
While awaiting Sessions’s confirmation, and without having installed any of his own appointees at Justice, Trump made Boente acting AG, succeeding Obama holdover Sally Yates (whom Trump had fired over her insubordinate refusal to enforce and defend Trump’s “travel ban”). When Sessions was finally confirmed on February 9, Boente slid down to acting DAG. Thus, once Sessions recused himself on March 2, Boente was in charge for purposes of the Russia investigation.
So, did Boente make the “Trump Justice Department” decision to authorize FBI testimony that portrayed Trump as a suspect in potential crimes? To my knowledge, nothing has been said publicly about how and why that decision was made. What we do know is this: It was the frenzied media and public reaction to that decision, and Comey’s consequent testimony, that led a highly agitated Trump to press Comey (and perhaps other subordinates) to clarify the public record. Upon declining, the FBI director was removed — with Trump himself announcing that Comey had told him, three times, that he was not under investigation.
It is hard to imagine that Sessions would have authorized Comey’s March 20 announcement – certainly not unless it acknowledged that Trump was not a suspect. In any event, had the Justice Department refused to authorize this unnecessary and misleading announcement, Comey would probably still be FBI director, there would be no obstruction investigation, and the Russia counterintelligence probe might be winding down toward a finding that there had been no Trump campaign collusion.
4. Rosenstein’s Appointment of a Special Counsel
The president royally botched the dismissal of Comey. First, he directed the Justice Department to draft Rosenstein’s memo, which reasoned that Comey should be removed over his inappropriate public statements regarding the Hillary Clinton e-mail investigation, which thrust the apolitical FBI deeply into the 2016 election. Trump then made it appear that Rosenstein’s memo was the basis for firing Comey by purporting to “accept [the Justice Department’s] recommendation.” As administration officials (including Vice President Pence) rallied around this explanation, Rosenstein saw that he was being made the fall-guy for a decision the White House, in inexplicable naïveté, appears to have believed Democrats would welcome rather than attack. Having cultivated good relations on both sides of the aisle, Rosenstein had been confirmed by the Senate with overwhelming bipartisan support (94–6); suffice it to say, he is not the type to let Democratic hyperbole roll off his back.
Trump then pulled the rug out from under everyone by insisting, no doubt accurately, that it had been his own decision to fire the director because Comey seemed to be promoting “this Russia thing with Trump and Russia [that] is a made-up story” — which I take to be a critique of Comey’s public comments about the investigation, not of Comey’s and the FBI’s conduct of the investigation. Trump exacerbated the furor over the conflicting explanations by berating Comey in the presence of Russian diplomats. (If you’re not dizzy enough already, Trump this week reverted to holding Rosenstein responsible for Comey’s sacking, tweeting — what else? — “I am being investigated for firing the FBI Director by the man who told me to fire the FBI Director!” The tweet ended with the coda “Witch Hunt,” which evidently means “when a subordinate orders the president around.”)
The president royally botched the dismissal of Comey.
Perhaps understandably, Rosenstein reacted to the Comey-ouster debacle by trying to wash his hands of it. With little notice to the White House, he announced that he was appointing a special counsel — Mueller. But the appointment order failed to follow regulations that permit a special counsel only for criminal investigations — Rosenstein instead put Mueller in charge of the Russia probe described in Comey’s March 20 testimony. Again, that probe is a counterintelligence investigation.
As I have contended, aside from being a deviation from the regulations, making a counterintelligence probe the linchpin of a special-counsel investigation sets no practical limitations on the special counsel’s jurisdiction. Counterintelligence is an information-gathering exercise; it does not have the definitive parameters of a criminal investigation, which focuses on concrete factual scenarios in which indictable crimes have been committed.
Therefore, Rosenstein’s flouting of the regulations means Mueller’s investigation is a fishing expedition. It is already straying far afield from suspicions about Trump collusion in Russia’s election-meddling — which, we need to remind ourselves, is the purported rationale for the probe, and thus for Mueller. The probe’s focus has morphed from collusion to obstruction: the chief-executive’s weighing in on Flynn’s prosecution, pushing for disclosure of true information that he was not a suspect in the Russia investigation, and firing of the FBI director — all actions Trump was constitutionally entitled to take.
Mueller has also broadened his scope to include the scrutinizing of financial activities of Trump associates, reportedly based on hunches about possible bribery and money-laundering. These, in turn, are based on the assumption that there was collusion — notwithstanding that months of investigation by the FBI and several congressional committees has turned up no such evidence.
In addition, there are conflicts of interest that are apt to discredit the investigation, regardless of whether they technically require disqualification. Rosenstein selected Mueller despite the latter’s close friendship with and professional ties to Comey. Now that obstruction is suddenly the focal point of the probe, Comey is clearly a central witness. Meanwhile, no doubt relying on Mueller’s sterling reputation, Rosenstein gave the special counsel free rein on staffing. Mueller promptly made tin-eared hires: lawyers who, despite their impressive prosecutorial credentials, are Obama and Clinton donors. One of them, Andrew Weissmann, is also plagued by the scorched-earth reputation he developed as special prosecutor in the Enron investigation, particularly the infamous prosecution that destroyed the Arthur Andersen accounting firm — which Weissmann indicted on very thin proof for, yes, obstruction of justice . . . only to have the conviction thrown out by the Supreme Court.
Rosenstein’s decisions mean the Mueller investigation is likely to become one of those sprawling, interminable affairs that have made special-prosecutor investigations the death-of-a-thousand-cuts for presidential administrations. And the staffing decisions make it inevitable that much of the public will suspect prosecutorial bias even if all the lawyers perform responsibly.
Ideally, the Justice Department provides the kind of legal rigor and prudent judgment that can prevent or minimize problems for a president. To be fair, President Trump can be an erratic and intemperate client. But at the flashpoints where the Justice Department might have reversed the tide of scandal, it has gone with the flow. If the president has learned nothing else, it should be the importance of filling the Justice Department, and the rest of his administration, with his own appointees. To say the prior administration laid traps for him, and that he has blundered his way into them, is putting it mildly.
— Andrew C. McCarthy is a senior fellow at the National Review Institute and a contributing editor of National Review.