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How — And Why — Should the Mueller Probe Be ‘Ended’?

Robert Mueller in 2011 (Eric Thayer/Reuters)

Former U.S. attorney general Michael Mukasey has an interesting article in USA Today calling for an “end” to the Mueller probe. He makes an argument familiar to readers of Andy McCarthy: that the initial appointment of Mueller was not consistent with standard policy or practice.

Brad Heath of USA Today offers some interesting corrections, but I’ll let the legal beagles sort all that out. What I’m more concerned with is the political logic of Mukasey’s conclusion. Andy long ago persuaded me that there are significant flaws with the authorization of Mueller’s investigation. So let’s stipulate for the sake of argument that Mueller shouldn’t have been appointed either at all or in the way in which he was. (That is a very different proposition, by the way, from the claim that these matters should never have been investigated at all.)

The salient political fact is that he was appointed. The Mueller probe exists. So the question I’d love to have answered is: How, exactly, should the Mueller probe be “ended”?

Mukasey doesn’t say that Trump should fire Mueller (or fire Rosenstein and then appoint someone who will fire him). But what other way is there to terminate the Mueller probe? It’s not like Rosenstein is going to wake up one morning and read Mukasey and McCarthy and have an epiphany. I don’t think Mueller can be persuaded to drop the whole thing. Congress can’t fire Mueller (it could impeach him, but that would require a level of legislative will distinctly lacking among our Parliament of Pundits).

So let’s assume Trump pulls the trigger and fires Mueller. Then what?

I know both Mukasey and Andy are intellectually honest and are making their arguments on the legal merits. But a lot of people calling for the “end” of the Mueller probe seem to be fairly unconcerned with the legal niceties and are instead making a political calculation. Indeed, if Trump fires Mueller, I don’t think anyone but the already converted will claim (never mind believe) that Trump did it out of a deep-seated commitment to DOJ guidelines.

So what is the end-game for this gambit? Firing Mueller won’t end the investigation necessarily. Someone else would take his place. But even if the investigation itself were somehow “ended” before completion, it would be very hard to keep everything he’s found secret for very long. If the Democrats take over the House, they will pick up where Mueller left off for sure (and it’s worth asking whether firing Mueller would make a Democratic takeover more or less likely). Rosenstein, Mueller, and Mueller’s deputies would certainly testify, and some would surely leak with abandon, regardless of what happens in the mid terms. Even Trump’s own DOJ will struggle with how to handle the uncompleted investigation and any potential prosecutions derived from it, particularly amidst a guaranteed media firestorm.

And there’s also the matter of the public’s right to know what Mueller found. We hear a lot about the public’s right to know about how the DOJ handled the Clinton inquiry — and I agree with nearly all of it, as far as I can tell. But I’m at a loss to understand why that argument shouldn’t also apply to Mueller’s investigation of Russian meddling — even if the legal rationale for his investigation is flawed.

I suspect some people — again, not McCarthy or Mukasey — don’t really want to see Mueller fired so much as tarnished, so that whatever he finds is considered tainted. I get that political argument — even if I think it’s grotesquely cynical. But I assume some of the Trump-defenders are sincere in their belief that Trump should end the investigation, and I assume they think this would be good for Trump. What I haven’t heard is a compelling argument for why it would be good for Trump — unless they think Mueller has found something or some things that would be even more politically damaging than the fallout from firing Mueller would be.


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