Politics & Policy

The Mueller Squirrel Cage

Robert Mueller on Captiol Hill in 2013 (Yuri Gripas/Reuters)
Round and round the investigation goes. Where it stops…

Special Counsel Robert Mueller recently indicted yet another peripheral character in his Trump probe, Russian attorney Natalia V. Veselnitskaya, for alleged money laundering in a matter quite separate from Trump.

Like almost all of Mueller’s indictments of the past 20 months, the charges against Veselnitskaya had nothing to do with his original mandate of finding any possible Trump–Russia collusion. No matter; within minutes, Veselnitskaya’s name was injected into the media cycle as if the fact that she was Russian and connected to the name Mueller were de facto proof that Trump was guilty of something — if not collusion, something worse.

If Mueller was not a special counsel, and if he was not looking for anyone deemed useful to flip to find dirt on Donald Trump, then Veselnitskaya would have been just another daily Washington foreign influence-peddler being courted with impunity by her American influence-peddling and often equally suspect counterparts.

To date, in almost every one of his indictments of Americans, Mueller has gone after Trump staffers, often quite minor, for alleged crimes that either were committed well before Mueller began his investigations, or came as a result of plea bargaining in exchange for providing expected dirt on Trump, or were the result of government surveillance or the use of government informants, or all of that and more. And all that sensationalism, through leaks and insinuations, was packaged by the media as “bombshells” and “watersheds” and “turning points” ad nauseam for 20 months.

When Mueller indicted and obtained a confession from Michael Flynn, Trump’s first national-security adviser, it followed from an elaborate perjury ambush set up by the now fired, ethically conflicted, disgraced, and perhaps soon to be indicted deputy FBI director Andrew McCabe. McCabe sent the now fired, ethically conflicted, and disgraced agent Peter Strzok to interview Flynn — a process overseen by the now fired, ethically conflicted, and disgraced James Comey. And even then, Mueller seemed to be the beneficiary of leaks from someone in the Department of Justice who sent to the media elements of surveillance transcripts of Flynn’s conversations.

We sometimes forget that Mueller would not now exist if Hillary had just done what she was supposed to do — win the Electoral College vote. Nor would it exist if she had not paid Christopher Steele to author a hit piece, hide her handprints, and then salt it among officials at the Obama DOJ and FBI to spawn a media frenzy, first to ensure Trump’s defeat in 2016 and then, after his victory, to explain the supposedly inexplicable blown election.

The Mueller team’s modus operandi starts with the assumption that President Donald J. Trump is responsible for Russian collusion. Or he must at least be found guilty of something or other from his past decades as a wheeler-dealer, high-profile Manhattan provocateur.

Given that starting point, the special counsel then tries to prove his particular charge by rounding up those who have worked for Trump, examining in detail their personal history, discovering that they were imperfect, and threatening to ruin them (or their family members) with long prison sentences or crippling legal bills unless they aid what are becoming his Captain Ahab–like obsessions.

Far worse, Mueller has overlooked dozens of likely tangential felonies related to his investigations — they are not deemed useful to his zealous pursuit of Donald Trump.

Deputy Director Andrew McCabe probably lied to federal investigators. He faces no charges.

James Comey, the former FBI director, probably misled a FISA court and likely lied under oath to a congressional committee by claiming 245 times that he did not know or did not remember various important facts. It’s also likely that Comey broke the law by deliberately leaking secret and confidential FBI memos to friends and the press for his own particular agendas. Comey’s FBI team knew as early as July 31, 2016, that the Steele dossier was an unverified, biased product of Hillary Clinton’s opposition research, and yet he helped to send it to the FISA court as the primary evidence used to justify surveillance of Carter Page — in order to look for something on Trump.

Comey earlier had warped the investigation of Hillary Clinton’s private server and emails by his own admission that he assumed she was going to be president and therefore deserved special treatment rather than a process that followed the letter of the law. He apparently faces no criminal liability on any of these issues.

Comey — and later, after his firing, his lieutenants — apparently conducted a counterintelligence investigation of President Trump. The likely illegal move was based on the ridiculous notion that Trump had colluded with Russia, either as a dupe and fool or as a canny and treasonous Russian operative. These fantasies were the pretext for using Clinton opposition research to prompt their investigations.

Worse still, the FBI later was apparently terrified that a President Trump would eventually demand the release of documents disproving the FBI canard that it was generically investigating “collusion” rather than Trump himself. Recall that Comey, according to his sworn testimony, assured Trump three times that he was not the object of a FBI official investigation.

Yet just such an investigation of the president of the United States was under way. It occurred in a landscape in which Comey himself, later Mueller team members Peter Strzok and Lisa Page, and recently journalists as diverse as Michael Isikoff and Jonathan Karl have admitted either that there is likely to be no proof of collusion, or that the Mueller team will not find any evidence of collusion, or that the Steele dossier was mostly inaccurate and made up — or all that and more.

Andrew Weissmann, Mueller’s blue-chip prosecutor, was briefed in August 2016 by Bruce Ohr, the fourth-ranking official in the Obama Department of Justice, that the Steele dossier was unverified, that it was a campaign opposition hit piece paid for by Hillary Clinton, and that Ohr’s own wife worked with Steele on it.

Those facts about the prior role of Weissmann seemed of no interest to Mueller. Nor did Mueller seem bothered by the fact that the DOJ and the FBI went to a FISA court on four occasions to use that very dossier to obtain surveillance on Carter Page, who was to become a subject of Mueller’s own investigation.

One would have thought that at some point Mueller might have gone down the hall and asked, “Hey, Andy, did you guys at DOJ ever hear anything worrisome about that dossier before you used it to get wiretaps and intercepts on an American citizen?”

In sum, one result of the entire Mueller inquest is that we are now witnessing one of the greatest political scandals in U.S. history, given that

1) the FBI conducted a secret investigation of the sitting president of the United States and kept it from all oversight, based on nothing other than unfounded accusations from untrustworthy sources and the FBI’s policy differences with candidate and later President Trump;

2) presidential candidate Hillary Clinton in the middle of the 2016 campaign hired a foreign national, British subject Christopher Steele, to conduct opposition research on her rival Donald Trump, and she hid her use of campaign funds to pay for the ensuing dossier by funneling the payments as “legal fees” through both a law firm and an opposition-research firm;

3) members of Obama’s Department of Justice and FBI deliberately and repeatedly misled FISA courts by presenting a dossier as evidence without disclosing that it was unverifiable, paid for by Hillary Clinton, used circularly for “corroborating” news accounts, and authored by a fired FBI informant — all of which was previously known to the top echelon of the FBI and DOJ;

4) key members of the U.S. government in the FBI, DOJ, CIA, and State Department took great pains in the midst of a presidential campaign to spread knowledge of the unverified dossier among top government officials and to ensure leaks of the dossier to the media;

5) few involved in any of these felonious acts are currently under investigation, and fewer are apt to be subject to criminal prosecution, given the hysteria over the supposed Trump collusion;

6) Mueller’s top lieutenant, Andrew Weissmann, by intent or default, probably had a role in the deception of a federal FISA court that was deliberately misled by fellow DOJ attorneys who withheld information that they knew would impugn their own evidence.

Again, the reason Mueller is not interested in such lawbreaking seems to be that it does not serve his interests. He shows little concern that both former FBI director John Brennan and former director of national intelligence James Clapper — figures who have popped in and out of his investigation — have lied under oath to Congress and probably have also lied about their knowledge of the Fusion GPS dossier compiled by Steele and the leaking of its contents. These lies of the nation’s three top intelligence officials — Brennan, Clapper, and Comey — are of far more importance to the sanctity of the republic than whether George Papadopoulos got his stories straight.

Finally, Mueller’s own team has been at times as mendacious as those they have hounded.

When FBI agent Peter Strzok and lawyer Lisa Page were let go from the Mueller team for bias and unethical behavior, Mueller’s staff for weeks hid the real reason for their departures. Their firings were staggered to suggest that they were unconnected, again misleading the media and the public.

When these two fired FBI employees turned in their government phones, on which they had sent each other thousands of relevant personal texts, the Inspector General belatedly discovered that months of messages had “disappeared” — according to the Mueller team due to bureaucratic sloppiness, technical glitches, or determinations that the messages were irrelevant and thus destroyed.

Had any of Mueller’s own targets lost key communications on their phones or pads and then claimed such extenuating circumstances, they likely would have been indicted. Had they, under oath, pled poor memories or no knowledge on 245 occasions, they would have been indicted. Had they misled a federal court with inexact or fraudulent evidence, they would have been indicted. Had they destroyed evidence under subpoena, they would have been indicted. Had they leaked confidential information, they would have been indicted.

In sum, Robert Mueller’s investigation has turned American jurisprudence upside down . In this country, we investigate crimes to see who committed them. We do not start by assuming the guilt of a person and then search for his necessary wrongdoing, although the perverse notion of “guilty until proven innocent” has now permeated throughout a frenzied American culture.

The latest BuzzFeed scandal is a good example. The online news magazine alleged that it had documentary evidence from the special counsel’s office proving that Trump ordered his consigliere Michael Cohen to lie about the Trump organization’s business dealings with Russians.

For an entire news cycle, that yarn prompted journalists and Democratic congressional members to call for Trump’s immediate impeachment — until Mueller himself issued a denial of the BuzzFeed story. (One wonders why he had not done so immediately, whether he was worried that some of his own staffers were the sources for the BuzzFeed pseudo-news story, and why in the past he has not stepped up to discredit earlier false stories supposedly leaked from his team about his impending actions. Perhaps because other fake news did not so endanger the reputation of his investigation?)

But stranger still was the attitude of supposed journalists calling for impeachment: They believed that Trump was capable of ordering Cohen to lie; it was therefore excusable to assume that Trump had in fact done so, even in the absence of any evidence that he had.

In other words, we have abandoned the idea of innocent until proven guilty and instead appropriated a number of Bolshevik protocols: Find the person first, the crime second; if a suspect in theory could commit a crime, then he most likely did; waiting to pass judgement until all the facts are in is telling proof of pro-Trump bias.

In America, there is still an idea of equality under the law. But Mueller has taught us that whether you go to jail for perjury, illegal leaking, lying to federal investigators, destroying key evidence, obstructing a federal court, or trying, as a foreign citizen, to warp the outcome of a U.S. presidential election, all depend entirely on the particular agendas of a particular prosecutor, not the law per se.

Mueller’s legacy will likely be that he has now institutionalized the idea of inequality under the law — seeking out bothersome outsider minnows while establishment sharks devoured the Constitution.

NRO contributor Victor Davis Hanson is the Martin and Illie Anderson Senior Fellow at the Hoover Institution and the author, most recently, of The Case for Trump.

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