The Corner

Politics & Policy

Mueller’s Problem Is Not Trumpers’ Zeal — but the Perception of Inequality under the Law

Robert Mueller on Capitol Hill in 2012. (Yuri Gripas/Reuters)

What is disturbing about the Mueller investigation is not per se that a special counsel is looking into charges of wrongdoing known as “collusion,” but that he is indicting or leveraging suspects, amid a larger landscape of related perceived wrongdoers, who so far have not been subject to the same federal zeal.

We do not know all the details, but the public wonders exactly why Michael Flynn was leveraged to confess about lying to federal authorities (in theory, in part due to surveillance obtained by questionable FISA warrants), while, for example, Clinton aides Human Abedin and Cheryl Mills were given partial immunity for their reported misleading statements about their knowledge of the Clinton email server.

People rightly wonder whether there will be consequences facing Andrew McCabe for allegedly lying about leaking to federal investigators, or for the flagrant way that John Brennan has so serially prevaricated under oath to Congress (about Senate staff computers, drone collateral damage, and the seeding of the Steele dossier).

If it turns out that DOJ and FBI officials deliberately misled FISA justices by not disclosing that they knew the Steele dossier was a product of Clinton-purchased opposition research, or that the collaborative news accounts they cited to the court were in truth circular offspring of the Steele dossier, then certainly they should be held legally accountable. The logical inference would be that they feared such full and honest disclosures might endanger the granting of the warrants.

By all means press, again, Paul Manafort to the fullest extent of the law if he violated statutes and unlawfully lobbied for foreign interests, but surely, we must treat the possibly same exposure of Tony Podesta in the same manner.

Military and civilian personnel have gone to jail for carelessly leaking classified documents or destroying evidence of interest to federal prosecutors. James Comey and Hillary Clinton should face the same liability, given their admissions that Comey likely leaked at least one possibly classified government document, written on government equipment on government time, and Clinton illegally used a private server which in some cases transmitted classified materials.

It is illegal to leak to the press unmasked names of those swept up in classified FISA surveillance. And yet we know at least a few names of those surveilled were filtered to the press. Those responsible must face the same prosecutorial zeal that Mueller has so far shown others.

And the symmetry should also guide any investigation into whether it was legal to implant federal informants into an ongoing political campaign.

There is much talk of obstruction of justice. Again, let Mueller pursue his leads. But in the real world outside Washington, one can get into deep trouble by meeting stealthily a federal prosecutor in a secret location who is currently investigating one’s spouse.

No federal official, in the manner of Andrew McCabe, should be in charge of investigating a suspect whose campaign affiliates have recently donated huge amounts of money to the investigator’s wife’s prior political campaign. And a DOJ official is required to state whether he has conflict of interests that affect his performance in the manner in which Bruce Ohr allegedly did not cite his own spouse’s employment for the Clinton-funded Fusion GPS Steele project, or his own contacts with those concerned.

No doubt the idea of impeaching Rod Rosenstein may be misplaced. But Rosenstein himself must know that in such politically charged times he has by needs played some sort of prior role in the Uranium One investigations, the Clinton email investigations, the FISA court warrants, and the collusion investigations, and that these issues swirl around both his current prosecutorial choices and may at some future date put himself in legal limbo. Clearly, if there exists such a doctrine of recusal, he should have long ago recused himself in the fashion of Jeff Sessions, who may have had far less exposure to charges of conflicts of interest.

It wins the Mueller investigation no favors that its origins, by the admission of former FBI director James Comey, were instigated by the leaks of confidential presidential memos by Comey himself — and then coincidentally led to the selection of Mueller, a friend of Comey and for a moment, before his special-counsel appointment, an apparent willing aspirant to be Comey’s replacement as FBI director.

A second worry, of course, is the necessary appearance of political neutrality, crucial for public support for any high-profile federal special inquiry. Robert Mueller needlessly incurred criticism by his own appearance of conflicts of interests, when, for example, he did not disclose promptly the reasons for the departures of Lisa Page and Peter Strzok from his investigative team, and delayed notice until much later after their severances, and seemingly staggered their reassignments to cloud any inference that they were related and prompted by their shared incriminating texts.

Mueller did not need to include counsels on his team, again in such a politically charged atmosphere, who had earlier represented either the Clinton Foundation or contractors for Hillary Clinton under suspicion for the destruction of key evidence.

It would have also been wiser to have gone beyond the law and either have insisted that his legal team’s members had not been donors to either presidential candidate, or, barring that, to have included roughly equal numbers of 2016 partisans. No doubt there are individual complexities and extenuating circumstances surrounding the retirements, resignations, firings, or forced reassignments of a spate of FBI and DOJ officials. But it is not conspiratorial or improper to suggest that something is wrong in Washington when the public was never really told the initial circumstances surrounding the fates of James Baker, Peter Kadzik, Michael Kortan, David Laufman, Andrew McCabe, Bruce Ohr, Lisa Page, James Rybicki, and Peter Strzok.

Mueller’s problem is not over-zealous Trumpers who will squash his investigation, but rather a growing negative public perception that he is applying a standard of investigatory zeal to some targets that federal prosecutors are not applying to others who may have as much, if not greater, criminal exposure.

The perception again is that the common denominator to such asymmetries is whether the targeted suspect offers supposed incriminatory information about Donald Trump (and so should be pursued), or, on the other hand, should not be put into a position of offering incriminatory information about either Hillary Clinton or Barack Obama (and thus wins exemption from criminal liability). Given that the above scenarios were actually thematic throughout the Page-Strzok secret-text trove, it is not idle or conspiratorial speculation.

Finally, most of us think special counsels are a bad idea, given their histories of presupposing a guilty target and then finding the necessary criminal violations to indict him. But we are at the homeopathic point in which a bad idea may be needed to rectify a bad idea.

Given the imbalances of the last two years, and the likelihood that they will continue, the only way of restoring confidence in the Mueller investigation may be to appoint yet another special counsel, with a simultaneous mandate to investigate the FISA warrant requests, the NSC unmasking and leaking of the names of American citizens, FBI, DOJ, CIA, and State Department involvement in the use of the Steele dossier, FISA surveillance, and informants in connection with the 2016 president campaign, the so-called Uranium One sale coincidences with large Russian-related donations to the Clinton Foundation and a Russian honorarium to Bill Clinton, and a revisit of the Clinton email investigations and its questionable odyssey during the 2016 campaign.

Victor Davis Hanson — NRO contributor Victor Davis Hanson is a senior fellow at the Hoover Institution and the author, most recently, of The Second World Wars: How the First Global Conflict Was Fought and Won.

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