Andrew C. McCarthy:
There’s law and there’s politics. When it comes to Robert Mueller, the special counsel appointed to conduct the so-called Russia investigation, the Justice Department did politics. That is why the public discussion of Mueller’s status — including probably farfetched suggestions that President Trump is on the cusp of firing him — has so botched the law.
At this point, unfortunately, the law must accommodate politics. The alarm bells that led to Mueller’s erroneous appointment cannot be un-rung. But legal surgery needs to be done, lest Mueller’s amorphous mandate lead to Scooter Libby 2.0, or worse, another Iran-Contra epic — a fiasco that seemed to have a longer run than Phantom of the Opera.
Bottom line: Trump should not dismiss Mueller, but the Justice Department must revise the special counsel’s jurisdiction. Maybe this time, it could be conformed to, you know, the law . . . specifically, the law that limits special counsels to criminal investigations, not counterintelligence probes.
Before we get down to business, let’s clear away the underbrush.
Mueller’s Potential Conflicts of Interest
As elaborated on in this space before, Bob Mueller is as straight an arrow as they come; he is not right all of the time (is any of us?), but he is always ethical and patriotic. Like others, I worry about the ideological bent and potential for overzealousness of the staff he has assembled. But there is no doubting their legal acumen, and with Mueller calling the shots, I believe the Trump administration and the public will get fair treatment. This situation warrants attention, but not panic.
Similarly, too much is made of Mueller’s being pals with Jim Comey, the former FBI director who succeeded Mueller’s twelve-year run in that lofty post. Mueller is a pillar of Washington’s legal and political communities, which heavily overlap. If cordial relations with people in Washington circles is disqualifying, then good luck finding a high-quality special counsel if you ever need one (which we didn’t in this case, but that ship has sailed).
Comey is not a suspect in Mueller’s probe. It is unlikely he is even a witness, since there is nothing of criminal substance to have witnessed (more on that coming). Regardless of one’s view of Comey, moreover, his testimony so far is that there appears to be no evidence of Trump’s collusion in Russia’s campaign-meddling, and that the president was never even a suspect. Agitation over Comey’s personal and professional attachment to Mueller is thus misspent energy. In the unlikely event that a prosecutorial decision to which Comey is somehow central must be made in this investigation, we can trust Mueller at that point to apply the relevant ethical rules and decide, on the basis of a concrete factual scenario rather than speculation, whether his recusal is required to avoid the appearance of impropriety.
The President’s Authority over the Special Counsel
Now let’s turn to Deputy Attorney General (DAG) Rod Rosenstein, who was handed some lemons and has not exactly turned them into lemonade — although there’s still time. We’ll get to the major gaffe — the special-counsel appointment itself — momentarily. But first we turn to his congressional testimony yesterday.
When the subject of reports about Mueller’s potential dismissal was raised, Rosenstein suggested that only he — not the president — has the power to fire Mueller, and only on a showing of good cause. He said he was aware of no such reason, and committed that as long as he remained DAG, Mueller would not be relieved in the absence of good cause. Adding the melodramatic touch that is a staple of law-enforcement testimony these days, Rosenstein added, “I’m not going to follow any order” — an obvious reference to a potential order from Trump to terminate Mueller — “unless I believe they are lawful and appropriate orders.”
Given that the Justice Department is an institution on which we are supposed to depend for fidelity to the Constitution, it is dismaying to have to keep pointing out to its top officials that law-enforcement — the Justice Department and the FBI, in particular — is not a separate, independent branch of government. Its officials are subordinate-delegates of the president. They do not have their own power; they exercise the president’s power at the president’s pleasure.
