Law & the Courts

The System Worked

Robert Mueller speaks on Capitol Hill in Washington, D.C., in 2013. (Yuri Gripas/Reuters)
The DOJ responded to a challenging moment with integrity and resolve.

Let’s take a brief walk down memory lane, to a week of chaos and controversy nearly two years ago. On May 9, 2017, President Trump fired FBI director James Comey, leaving Andrew McCabe in charge of the bureau. McCabe, as Americans now know, later would be fired from the FBI for leaking sensitive information about the FBI’s investigation of the Clinton Foundation and lying about those leaks to Comey and to internal investigators.

Moreover, while Deputy Attorney General Rod Rosenstein’s memorandum detailing the reasons for Comey’s termination centered around his handling of the Clinton email investigation, the president — in a subsequent interview — indicated that he was also considering the Russia investigation when he made his decision, and there were contemporaneous reports that he’d told Russian officials in the Oval Office that Comey was a “nut job” and that he had “faced great pressure because of Russia. That’s taken off.”

Compounding the complexity, the attorney general, Jeff Sessions, had already recused himself from investigating the Russia controversy, and the American body politic was still absorbing the salacious details of the Steele dossier — a document that BuzzFeed shamefully had dumped into the public square without verifying any of its material allegations. Oh, and American intelligence agencies had concluded that the Russian government had attempted to disrupt the American election (in part by hacking Democratic emails) to help elect Donald Trump.

Given this reality, a thorough and complete investigation of Russian interference — including of any potential cooperation with the campaign it was allegedly trying to benefit — was a national necessity. The best option — an independent commission not unlike the 9/11 Commission — appeared to be off the table. The political branches lacked the will to create it. Congressional committees were investigating, but they lacked many of the key investigative tools available to law enforcement.

Meanwhile, a more conventional probe helmed by the FBI was completely unsatisfactory. Public trust in the FBI was already nearing all-time lows. Democrats believed that the FBI had helped elect Donald Trump. Republicans believed the FBI had wrongly exonerated Hillary Clinton — and this was before it was widely known that the FBI had apparently used the Steele dossier as part of an application for a FISA warrant to surveil Carter Page.

The next-best option was a special counsel, but that carried its own dangers. Special-counsel investigations (including investigations empowered by the old independent-counsel statute) tended to be long and expensive, and to spiral out of control. Rod Rosenstein faced a stark challenge. Picking a special counsel was the least worst option, but if he chose the wrong person, he’d compound the crisis he was hoping to ameliorate.

The American people should be grateful for what happened next. Rosenstein chose the best available course of action, chose the right special counsel, and then — along with Acting Attorney General Matthew Whitaker and Attorney General William Barr — left Robert Mueller alone to do his job. In his letter notifying Congress that Mueller had delivered his report, Barr said there were “no instances” in which the attorney general or acting attorney general “concluded that a proposed action by a Special Counsel was so inappropriate or unwarranted under established Departmental Practices that it should not be pursued.”

While there are valid criticisms of Mueller’s investigation (my colleague Andy McCarthy has made a number of thoughtful critiques), the bottom-line results were impressive even before he delivered his final report. Thanks to his indictments, sentencing memoranda, and other documents, we gained a far more complete picture of the nature of Russian interference in the election, learned far more about actual and attempted contacts between Trump-campaign officials (and allies, such as Roger Stone) and Russians assets or operatives, and uncovered serious criminal wrongdoing by high-ranking members of Trump’s campaign team.

Not only did these findings and indictments render a valuable public service, but their very thoroughness enhanced the credibility of the vital conclusion that came next — that “the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

When we read the report — and given President Trump’s public support for its release, we’ll likely see it soon enough — we will almost certainly learn additional material facts about Russian actions, Trump’s conduct, and the conduct of his senior team. Members of Congress will be able to make their own judgments about obstruction of justice and likely critique or support Mueller’s conclusions about collusion, but we’ll be working with facts — not unsupported, anonymous allegations, not rapidly changing news reports, and not hysterical talking-head presuppositions.

The Trump Department of Justice — placed under immense pressure — did its job. And I’d note something else important. For all of Trump’s “norm-breaking,” and for all of the concerns about the fate of the rule of law, Trump’s DOJ performed better than Obama’s when the chips were down. Thanks to congressional and inspector-general investigations, we now have evidence that the Obama DOJ put its thumb on the scales to help Hillary Clinton on two counts — by pressuring the FBI not to recommend charges against Clinton for mishandling classified information and by reportedly cautioning the FBI not to take “overt steps” in its Clinton Foundation investigation during the campaign. The warning allegedly triggered a dramatic pushback, with McCabe claiming that he responded, “Are you telling me that I need to shut down a validly predicated investigation?”

The DOJ has done its job, but there is now one more job it must do — and it likely can’t do it without the president’s explicit permission and direction. It’s now time for the Trump administration to declassify and release as much of the relevant Russia evidence as possible. That means the Mueller report, yes, but also relevant FISA applications, supporting documents, court rulings, transcripts of testimony, and anything else that can give the American people a more complete picture of how the Russia investigation began, how it was conducted, and the facts it uncovered. The truth is too important to remain in the shadows.

But for now, DOJ leaders — and Robert Mueller — deserve our thanks. In a time of (justified) collapsing public trust in American institutions, our best available evidence indicates that they responded to a challenging moment with integrity and resolve. It is a relief to say, with a high degree of confidence, that in the Mueller investigation our system worked.


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