Law & the Courts

The IG Report Should End Mueller’s Obstruction Investigation

Robert Mueller on Capitol Hill in 2013. (Yuri Gripas/Reuters)
The same logic that spared FBI and Justice Department officials harsher treatment in Michael Horowitz’s report should inoculate the president.

While generally cautious about criticizing Inspector General Michael Horowitz’s report on the Clinton-emails investigation, Trump supporters have taken aim at its chief logical flaw: Although key investigators harbored anti-Trump and pro-Clinton bias, and even made statements indicating an intention to act on that bias, the IG did not find that this bias was the proximate cause of any particular investigative decision.

This conclusion is easy to rebut; I did so myself in a column last week. Yet, the Trump camp should also be embracing it. Why? Because if this is the Justice Department’s position, then Special Counsel Robert Mueller has no business investigating the president for obstruction.

The IG’s rationale has been vulnerable to attack because of the way it has been distorted by FBI director Christopher Wray and congressional Democrats. They blithely assert that the IG found no bias in the FBI’s decision-making. That claim insults our intelligence.

The report documents a surfeit of political animus. Chapter Twelve, in which the IG marshals text messages and other recorded communications between investigators, is breathtaking. The report does not say that the investigators’ manifest loathing of Trump, their expressed intent to derail his presidential bid, and their desire to bring about his impeachment were irrelevant. It says that (a) because there were legitimate policy considerations that could have informed every one of their investigative decisions, and (b) because, as a matter of law, the FBI and Justice Department have broad discretion to make such judgment calls, (c) it is not the IG’s place to second-guess those decisions.

In other words, if there were plausible legitimate grounds to support a discretionary investigative call, the IG must give investigators the benefit of the doubt, assuming that they acted on those legitimate grounds. Given that this is surely the Justice Department’s position, it should pull the plug, forthwith, on Special Counsel Robert Mueller’s obstruction investigation of President Trump.

While Mueller was ostensibly assigned to conduct the Russia counterintelligence investigation (i.e., the probe of the Kremlin’s cyberespionage operation against the 2016 election), his appointment by Deputy Attorney General Rod Rosenstein was triggered by the president’s firing of FBI director James Comey on May 9, 2017. That firing induced Comey to leak to the media his memo about a meeting with Trump four months earlier (on February 14), in which Comey says Trump leaned on him to drop any criminal investigation of Michael Flynn, the former national-security adviser whom Trump had fired the previous day.

To that point in time, Trump had repeatedly been assured by Comey that he was not a suspect in the Russia probe. Thus, to the extent that Trump became a subject of a Justice Department investigation when Mueller took over, it was on the theory that the president had potentially obstructed justice by (1) firing Comey (on the theory that this impeded the FBI’s Russia investigation) and (2) weighing in on whether Flynn should be investigated (on the theory that Flynn was a Trump political ally and a potential witness against him in the Russia probe).

I have argued from the start that Mueller’s appointment was illegitimate, because Rosenstein did not comply with federal regulations, which, among other things, do not provide for appointment of a special counsel to conduct a counterintelligence investigation. More saliently for present purposes, I have also contended that the obstruction investigation is illegitimate because the president undeniably has the constitutional authority to remove the FBI director (he does not need a reason) and to exercise prosecutorial discretion by opining on the merits of an investigation (since the Constitution makes prosecutorial discretion a unilaterally executive power).

The logic of the IG’s report gets us to exactly this position, albeit by a slightly different route.

Under the rationale adopted by the IG with the implicit endorsement of the Justice Department, there is no basis for a prosecutor to investigate the president for obstruction.

Mueller would apparently circumvent the president’s constitutional defense through an untenable theory of corrupt intent. That is, the special counsel would posit that if the president takes a lawful action for an arguably corrupt purpose, he can be accused of obstruction. We have countered that this is specious. There is no doubt that a president can legitimately be accused of obstruction based on clearly criminal actions (e.g., witness tampering — see: the Nixon and Clinton impeachment proceedings). But if a president’s actions are lawful on their face, it is not the place of a subordinate executive officer, such as a prosecutor, to question the chief executive’s motives — especially under circumstances in which the president does not need any reason to take the action at issue.

In essence, IG Horowitz is saying the same thing in his report.

The IG finds abundant evidence of corrupt motivation on behalf of the officials who were running the Clinton-emails investigation. And there is a plausible theory — indeed, a very persuasive one — that a corrupt motive (viz., political bias) drove the decision-making: The investigators wanted Clinton to win the election and feared a Trump presidency, so they tanked a solid criminal case against Clinton, then turned their dedicated attention to framing Trump as a traitor based on such “evidence” as the Clinton-campaign-generated Steele dossier.

Nevertheless, Horowitz reasons that the law and Justice Department policy do not permit such a conclusion. The FBI and the Justice Department have broad executive discretion to decide whether charges should be filed, what investigative avenues to pursue, and which investigative techniques should be used. Even if they could have had corrupt motives, the IG says the Justice Department must assume law-enforcement officials exercised their broad discretion legitimately as long as it is possible that valid, non-corrupt reasons supported their decisions — e.g., a belief that precedent did not support charging Clinton with an Espionage Act offense; a belief that granting immunity rather than charging an accomplice with lying to the FBI was a better investigative approach; a belief that consenting to limit their examination of evidence in order to get quick access to it was more prudent than issuing a subpoena that might have resulted in time-consuming litigation.

So, let’s compare. President Trump clearly has broader executive discretion than the FBI and the Justice Department. He is the executive; their powers are limited by their subordinate status and the fact that they are created and heavily regulated by statute. It is incontestable, moreover, that the president had abundant legitimate reasons to fire Comey and to weigh in on whether Flynn merited investigation.

As Horowitz points out, when we are evaluating a discretionary judgment call, the question is not whether we agree with it, or whether it was right or wrong. What matters is whether it was rational. Horowitz’s own report finds major faults with Comey’s performance as director; in this, it echoes Rosenstein’s memorandum written at the time of Comey’s dismissal.

As for Flynn, let’s assume the truth of Comey’s post-dismissal claim that Trump pressured him — even though, just days before being fired, and four months after he discussed Flynn with Trump, the former director testified that he had never had the experience of being pressured to drop an investigation for political reasons. It was nevertheless perfectly reasonable for the president to request (no one has ever claimed that Trump issued an order) that the Flynn investigation be dropped. Flynn had just been fired the previous day; after a distinguished career of combat service to the United States, he had been laid low: removed from a coveted high-level position, with his professional and financial prospects dimmed. Flynn, moreover, should never have been investigated as a criminal suspect; the same Justice Department that would not bring Espionage Act charges against Clinton despite daunting evidence zeroed in on him based on the absurd, never-prosecuted Logan Act. His contacts with the Russian ambassador were proper, and the FBI agents who interviewed him did not believe he lied to them. It was entirely rational, then, for Trump to conclude that Flynn had already suffered enough, and that additional investigation would have been overkill. You can argue that it was unwise for the president to have expressed this opinion, but there was nothing unlawful about it.

The evidence that Trump was corruptly motivated in his actions on Comey and Flynn is scant compared to the evidence that investigators were corruptly motivated in the Clinton-emails probe. And again, Trump’s constitutional discretion to make executive judgments is considerably broader than that of the Justice Department and the FBI.

Consequently, under the rationale adopted by the IG with the implicit endorsement of the Justice Department, there is no basis for a prosecutor to investigate the president for obstruction. Even if it were the special counsel’s place to analyze the chief executive’s motivation in exercising his constitutional prerogatives (and it is not), there were patently legitimate reasons to support the president’s actions; in light of his broad discretion, the Justice Department must assume he acted on them.

So the obstruction investigation should be closed. Should Special Counsel Mueller fail to close it, Deputy Attorney General Rosenstein ought to be summoned by Congress to testify, specifically on this question: If the Justice Department accepts IG Horowitz’s premise that it must not second-guess the discretionary decision-making of FBI and Department officials when there are legitimate grounds to support their decisions, on what basis may a special counsel second-guess the president’s decision-making when — as Rosenstein himself has argued with respect to Comey — there are legitimate grounds to support the president’s decisions?

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