Mueller Investigation: Politics, Not Law Enforcement or Counterintelligence

Andrew C. McCarthy:

Here’s what I’d be tempted to do if I were President Trump: I’d direct the Justice Department to appoint a special counsel to investigate Iran’s efforts to acquire nuclear weapons, including any Obama-administration collusion in that enterprise.

I would make sure to call it a “counterintelligence investigation,” putting no limitations on the special counsel — just as with the investigation that Special Counsel Robert Mueller has been unleashed to conduct into Trump “collusion” with Russia. That is, I would not restrict the prosecutor and investigators to digging for specified criminal violations. Or, indeed, any criminal violations. I’d just tell the special counsel, “Have at it” — with unbound authority to scrutinize the negotiations surrounding the eventual Iran nuclear deal (the Joint Comprehensive Plan of Action).

Would I really expect the special counsel to find that Obama officials conspired with the mullahs to obtain nukes for Tehran? No . . . but hey, as the “Trump collusion with Russia” crowd says, “You never know.” Meantime, under the guise of investigating this highly unlikely “collusion,” I’d want the special counsel to scrutinize closely any variances between what Obama-administration officials were telling Congress and the public about the negotiations and what they were telling the Iranians; to probe any side deals the administration agreed to but failed to disclose to Congress; and to consider whether any laws or policies were violated in such matters as President Obama’s payment of a cash ransom in exchange for American hostages held by Iran.

Why would I do this? Well, because I disagree with Obama-administration foreign policy, of course. Under the Mueller “collusion” precedent, it is evidently now American practice to criminalize foreign-policy disputes under the pretext of conducting a counterintelligence investigation.

It is difficult to come to any other conclusion based on the guilty plea that Mueller just pried out of Michael Flynn.

Let’s think about what has happened here.

The Justice Department did not, as the pertinent special-counsel regulations require, identify specific crimes it suspected had been committed by Trump-campaign officials. Deputy Attorney General Rod Rosenstein disclosed no factual predicate calling for a criminal investigation from which Trump’s Justice Department would be ethically required to recuse itself.

Instead, Mueller’s investigation was rationalized by the need to conduct a counterintelligence inquiry into Russia’s “cyber-espionage” meddling in the 2016 presidential election. Though there was no probable cause to believe Trump-campaign officials had participated in Russia’s hacking (and remember: the FBI and Obama Justice Department had been investigating for months before the special counsel was appointed), Mueller was encouraged to focus on whether Trump-campaign officials somehow “coordinated” in Russia’s perfidy.

Mueller’s investigation was not a criminal investigation. It started out as a fishing expedition, under the vaporous heading of “collusion,” into “contacts” between Russian officials and Trump associates — notwithstanding that collusion is not conspiracy and that it was perfectly legal for Trump associates to have contacts with Russia (just like Clinton associates did). It was to be expected that the Trump campaign and transition would have such contacts once it was apparent that Trump could well become — and did in fact become — the next president of the United States.

Only one conceivable crime could have arisen out of the “collusion” that was the pretext for Mueller’s probe: the knowing complicity of Trump associates in Russia’s hacking of Democratic email accounts. Of course, there was never evidence of such a scheme . . . but why should that matter? The point here was to have the theater of an investigation run by a prosecutor — the rest is just details.

See, we’re not following the normal rules, in which a prosecutor is assigned only after evidence of an actual crime has emerged. We’re in the wooly realm of counterintelligence, where anything goes. And in the event our aggressive prosecutor can’t find any crimes — which would be no surprise, since the investigation was not triggered by a crime — no matter: The special counsel is encouraged to manufacture crimes through the investigative process. Misleading assertions by non-suspects made to investigators probing non-crimes can be charged as felony false statements.

The end game of the investigation is the removal of Donald Trump from the presidency, either by impeachment (which does not require proof of a court-prosecutable crime) or by publicly discrediting Trump to such a degree that his reelection becomes politically impossible. The latter can be accomplished by projecting the appearance of a critical investigation (notwithstanding that there is no underlying crime), turning administration officials into suspects, and hopefully generating the false-statement prosecutions that help depict the administration as dishonest and icky.

While all that plays out, though, behold the frightening thing Mueller’s investigation has become: a criminalization of politics. In the new order of things, policy differences are the grist for investigation and prosecution.

There is no evidence that Flynn or any other Trump associate was involved in Russia’s election interference. Instead, after being elected on the promise of significant policy shifts from the Obama administration, President-elect Trump directed Flynn, his incoming national-security adviser, to make contact with foreign counterparts, including but not limited to officials from Russia. This is standard operating procedure when administrations change — that’s why they call it a transition.

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