Opinion

The Order Appointing Special Counsel Mueller Is Tainted

A neglected facet of the special counsel investigation, discussed in a previous article, takes on new significance with reports that James Comey may have committed multiple felonies by possessing and leaking classified information.

Largely overlooked is the way Deputy Attorney General Rosenstein has defined the special counsel’s duties — namely, by quoting the selective disclosure of Comey himself.  Having as its charter such prejudicial parameters, delineated by the cryptic statement of an interested, hostile party, and possible suspect, the investigation is tainted.

It should be terminated at once or recast in terms consistent with justice and the interests of the people.

Rosenstein’s order appointing the special counsel makes the stated scope of the investigation coterminous with a preexisting FBI “investigation confirmed” by Comey during a House Committee hearing in March. There Comey was willing to confirm only an investigation of “links” between Russia and the Trump campaign.

“I cannot say more,” he said, “about what we are doing and whose conduct we are examining.”

Under Rosenstein’s order, then, only Russo-Trump “collusion” is part of Mueller’s express duties. To be sure, the statute gives him authority to expand his jurisdiction beyond this definition.  But the point is, he’s not required to.

The order does not direct Mueller to pursue known leaks of classified information, spying, or unmasking activities by the Obama administration. Senator Chuck Grassley (R. IA) once asked Comey directly whether his agency was investigating the leaks. Comey replied, “I don’t want to answer…”

Comey didn’t want to answer; so Rosenstein chose not to include it in his order; instead, he synchronized the investigation to what Comey wanted to say. Comey and Rosenstein have effectively precluded the duty to pursue foul play (including any by Comey) during the Obama administration, from which Comey was not fired; and required examination only of the one from which he was fired.

Rosenstein’s order includes language that would serve readily to justify a decision to ignore Obamacratic misconduct. Mueller need only decide, in his discretion, that something does not “arise directly” from the “investigation confirmed” by Comey.

Even before his selective disclosure of the Russo-Trump investigation, Comey’s reputation for abstruse public discourse about FBI business was abysmal.

A winding road of tales of investigations, “matters,” confirmed and unconfirmed, revealed and concealed, was already enough to make one “queasy,” to borrow a term from the “nauseous” [sic(k)] former FBI director.  But there are signs of an affliction more serious than upset stomach. Likely prognosis: miscarriage of justice.

Comey attained infamy for his handling of the Clinton investigation with his bizarre press conference and letters to congress and incoherent decisions.  The cumulative impact of his statements left an entire electorate agape with bewilderment and rage.

It was Rosenstein who drafted the memo recommending that Comey be fired for his inept statements about investigations. Now this same Rosenstein has somehow deduced that the special counsel’s scope should be set by quoting Comey’s statement about an investigation.

In Comey’s testimony before the Senate Committee he clearly evidenced his animus against the targets of the investigation he’s been allowed to beget and define.

First, he admitted to dissembling about the Clinton investigation. By calling it a “matter,” adopting Clinton’s euphemism to hide its criminal nature, he duplicitously sided against the views expressed by candidate Trump.

Second, he said he leaked his internal FBI memo to publish his alleged suspicion that Trump fired him to obstruct an investigation. Yet he also said he’d refused to disclose publicly the truth that the president was not under investigation. So, by concealing information he allowed a fake cloud to hang over the president for months; then he caused the cloud to mushroom by selective leaks.

The pattern of selective revelation and concealment strongly suggest Comey’s political and personal hostility against President Trump.

Third, Comey leaked internal FBI memos with the specific intent to “prompt the appointment of a special counsel.” It’s now apparent that the whole special counsel job, in both scope and origin, is a product of Comey’s anti-Trump machinations.

It seems he was stockpiling his memos detailing misgivings about the president at about the time he “confirmed” the Russo-Trump investigation. Comey’s words and deeds before and after the president canned him were seemingly calculated to harm the president.

Fourth, the leaked memo was reported this week to contain classified information, contrary to Comey’s sworn testimony. By leaking it, he may have committed multiple crimes.

Still the special counsel investigation proceeds apace.

To avert a travesty, it must be halted or redefined by something other than Comey’s oblique statements. His personal bias, possibly criminal behavior, and chronically ham-handed statements about investigations, make him uniquely unqualified to have a role in demarcating the scope of the investigation.

Roger Banks is a writer and attorney in the Washington, D.C. area.