In his efforts to refute Charles Cooke’s recent exposé of Jennifer Rubin, I was surprised to see David Frum, in passing, attack my Hoover colleague, legal scholar Peter Berkowitz (a “Sean Hannity–style character assassination of James Comey and Special Counsel Robert Mueller”), for suggesting, in a prescient October WSJ opinion column, that the Mueller investigation into Russian collusion may well be ethically compromised (in its zeal to go after those not accused of collusion)—in even greater fashion than was the Comey investigation of Hillary Clinton (in its absence of zeal to indict for clear violations of U.S. intelligence law).
Perhaps the common tie in both cases was the 2016 election, and the politicization of the high echelons of both the FBI and the DOJ—warped by obvious expectations that Hillary Clinton would rather easily win the presidency and thus career officials in government would then see their 2016 decisions post facto adjudicated in 2017 by Clinton or Obama hold-over appointees at DOJ and the FBI.
Recent testimonies before the House Intelligence Committee and the stellar work of NRO’s Andrew McCarthy I think have supported Berkowitz’s worries of two months ago over the probity of both Comey’s 2016 and, so far, Mueller’s 2017 investigations.
Far from character assassinating anyone, Berkowitz and others are worried about the strange network of relationships of supposedly disinterested officials involved in these recent investigations (Mueller/Comey, Strzok/Page; the McCabes, the Ohrs, Rhee, etc.) as well as the ever more mysterious touchstone Steele dossier—the nature of its origins, payments revolving around its creation and dissemination, its 2016 handling by the DOJ and FBI, its Russian sources and suspect methodologies, its possible use in obtaining FISA warrants to surveille U.S. citizens, and quite conflicting testimonies from top FBI officials about its veracity.
In the past, many of us have appreciated Frum’s essays warning of legal overreach, especially in casting some doubt on the fairness of special counsel Patrick Fitzgerald’s efforts to indict Scooter Libby (who may well have been hounded for a crime that did not exist, and, had it existed, that someone else committed), and Fitzgerald’s later overreaching prosecution of Conrad Black.
From what we know now of both the Libby and Black cases, and in some instances subsequent appeals and efforts for commutations or pardons, Frum was perfectly justified to express worry from time to time about the trajectories and outcomes of those prosecutions. Certainly it would have been unfair for anyone to have accused him of assassinating the character of an over-zealous Patrick Fitzgerald, when Frum occasionally focused on legal contradictions, not personalities.