Antidisestablishmentarians and other enemies of President Trump have been manically befogging the air since Inauguration Day, flashing intimations of crimes and misdemeanors through their own pollution, bewailing a fictitious “collusion” between President Trump and the Russians. This week Cryin’ Chuck Schumer and his ilk got what they say they wanted: the appointment of a Special Counsel to investigate the alleged Russo-Trump conspiracy.
The Special Counsel appointment is fair if Mueller uses his charter to investigate, in addition to the farcical Russian conspiracy accusations, real issues involving real crimes.
For example, did those whom I call (for convenience) the obamacrats and their allies concoct the Russian narrative as a pretext to spy on and sabotage the Trump campaign and presidency? Were Americans unmasked for political purposes? Who is responsible for illegally leaking classified information to the media?
Unfortunately, Deputy Attorney General Rosenstein’s May 17, 2017 Order appointing Robert Mueller as Special Counsel defines Mueller’s jurisdiction with a bias in favor of those conniving to use bogus claims as a nuisance suit to disrupt President Trump’s agenda and undo his election.
In fact, the Order hands Mueller a ready justification to avoid investigating any wrongdoing against the Trump campaign by the prior administration. Specifically, the Order appoints Mueller “to conduct the investigation confirmed by then-FBI Director” Comey during his testimony at a congressional hearing on March 20, 2017, including any links or coordination between the Russians and the Trump campaign, “and any matters that arose or may arise directly from the investigation. . . ”
As is often noted, the statute and regulations give the special counsel broad authority to investigate related (and even unrelated) matters. Nevertheless, the language of the Order is problematic.
In the first place, explicit scope of the Special Counsel’s jurisdiction is the “investigation confirmed.” Comey expressly declined to confirm any investigation into surveillance, unmasking, and leaking. At the March 20 hearing, Comey testified, “I have been authorized by the Department of Justice to confirm” that the FBI is investigating Russia’s efforts to interfere in the election and alleged links between the Trump campaign and the Russian government. Importantly, Comey went on to say, “I cannot say more about what we are doing and whose conduct we are examining.”
(At a separate hearing, on May 3, 2017, before the Senate Judiciary Committee, Senator Grassley asked Comey directly, “is there an investigation of any leaks of classified information relating to Mr. Trump or his associates?” Comey replied: “I don’t want to answer that question, Senator . . . .”)
Not “confirmed” by Comey was any FBI investigation into the known leaks of classified information, the known unmasking, and other dubious activities described publicly by former NSA Director Susan Rice and other obamacrats.
Accordingly, the FBI investigation confirmed by Comey is narrowly confined to the nonsensical accusations of a Russo-Trump conspiracy. Excluded from the explicit jurisdiction established by the terms of the Order is any other FBI-investigation — unless other investigations “arose or may arise directly” from the confirmed investigation of Russian “links” and “coordination.”
Whether another matter “arose or may arise directly from the” investigation confirmed by Comey is a determination left exclusively to Special Counsel Mueller in his broad prosecutorial discretion. He may determine that investigation into surveillance, unmasking and leaking do not arise “directly” from the “confirmed investigation.”
Even if the FBI is or was at one time investigating unlawful spying by the obamacrats, Mueller has no obligation to continue such investigations if he decides they don’t arise “directly” from the FBI investigation confirmed by Comey.
To eliminate the deficiency, Rosenstein’s Order should be revised to direct Mueller expressly to investigate whether any laws were broken in connection with surveillance or unmasking of Trump or his team, and in leaking confidential information. As it stands, the Order does not require Mueller to investigate those matters and hands him grounds to avoid them.
Should Rosenstein be unwilling to issue a revised order directing that surveillance and leaking be included in Mueller’s explicit jurisdiction, Sessions should seriously consider issuing a separate order himself, directing Mueller or another special counsel to investigate those matters. Rosenstein’s Order was issued pursuant to a DOJ regulation authorizing the Deputy Attorney General to appoint a Special Counsel “in cases in which the Attorney General is recused.” 28 CFR § 600.1. Sessions, of course, has not recused himself from unlawful obamacratic surveillance and leaking.
“Boy oh boy!” exclaimed Senator Mark Warner on a Sunday talk show, “there’s an awful lot of smoke!” And where there’s smoke, there must be, in Washington today, not fire, but mirrors.
There is strong reason to doubt the special counsel investigation, as presently commissioned, will stop the frenetic sounding of smoke alarms in the mob’ furious efforts to block the agenda and undo the election of President Trump. But perhaps knowing the Special Counsel is required to investigate the obamacrats and their allies based on genuine evidence will help quash some of the left’s mischief.