Posted by Curt on 29 January, 2018 at 3:52 pm. 4 comments already!


Let’s say I’m an assistant United States attorney in, oh I don’t know, Montana. I get to work one morning and I say to myself, “Self, you know what would be really interesting? Why, to ask Barack Obama some questions.”

Sure, there are a lot of people who’d like to do that — Obama’s a very interesting guy. But see, I’m not just “a lot of people.” I’m a federal prosecutor, just like Special Counsel Robert Mueller. Thanks to this nifty federal grand jury we’ve empaneled here in Montana, I’ve got subpoena power, just like Mueller.

Let’s back up a bit. After my weekend column, it occurred to me that a hypothetical was in order, to demonstrate the sorts of things a self-absorbed, unrestrained prosecutor can do.

My column argued not only that President Trump should refuse to be questioned by Mueller’s alpha-prosecutors, but that it would be wrong for Mueller to seek to interview the president of the United States unless he can first show cause that (1) a serious crime implicating the president has been committed and (2) the president is possessed of testimony that is both essential to proving the crime and unobtainable by alternative means.

In response, some commentators who were sympathetic to this standard wondered how it would be enforced.

After all, what’s to stop Mueller from threatening to issue a subpoena compelling Trump’s appearance before the grand jury if he declines to submit to an interview? Even if Mueller should not do that, nothing says he could not do it. If he did, then Trump — despite the lack of just cause — would be put to an array of fraught choices — much to the delight, no doubt, of the Democratic partisans on Mueller’s staff. The president would have to (a) submit to questioning and risk that Mueller would decide his answers somehow incriminated him; (b) invoke executive privilege at the political cost of adversaries’ claiming he was concealing criminal misconduct or some kind of collusion with Russia; or (c) fire Mueller and risk comparisons to Watergate and calls for his impeachment — even though the Watergate special prosecutor had compelling evidence of President Nixon’s criminal culpability before demanding that the president submit to law-enforcement demands.

The answer to the “What’s to stop Mueller?” question should be obvious. It is the Justice Department. Alas, the answer eludes us because Deputy Attorney General Rod Rosenstein has been AWOL for seven months. We seem to have forgotten that Mueller answers to Rosenstein — and Rosenstein seems only too happy to have us forget.

Back in May, besieged by Democrats feigning outrage over FBI director James Comey’s firing — the same Democrats who wanted Comey’s scalp for purportedly costing Hillary Clinton the election — Rosenstein preemptively surrendered. In appointing Mueller, he flouted regulations requiring that he specify the crimes that supposedly necessitated the appointment of a special counsel. He promised Democrats that Mueller would have carte blanche — no limits and no supervision from his nominal supervisor, Rosenstein.

And now, with Mueller poised to pressure the president to submit to interrogation — despite the absence of a crime, despite the absence of any suggestion that Trump has essential information that Mueller is otherwise unable to acquire — Rosenstein is nowhere to be found, at least when he’s not impeding congressional committees from conducting oversight of the Justice Department’s actions in the Clinton emails and Russia investigations.

Without Justice Department supervision, Mueller answers only to his own whim. Well, what if all prosecutors did that?

Back to our hypothetical.

really want to grill President Obama. But do I have reasonable cause to believe he is involved in some crime? That his testimony is essential? At the moment, no — but hey, you never know.

I’m really curious about those 20-odd emails Obama exchanged with Hillary Clinton when she was his secretary of state. There’s got to be some classified information there, right? Otherwise, the State Department would have disclosed them rather than sealing them at the direction of the White House. Sure, the former president says he did not, er, collude in Secretary Clinton’s mishandling of classified information, but why should I take his word for it? If Obama knew he was emailing to Clinton’s private, non-government account, that would be — as they say down at the FBI — an extremely careless way to transmit highly sensitive intelligence.

Come to think of it, as long as I am going to compel President Obama to testify, why not bring in President Clinton, too? He’s another interesting guy, and it sure would be fascinating to ask him about that homebrew server system his wife had cooking in their house.

I have a whole stack of subpoenas here, so might as well have Hillary come along, too. I’ve always thought her FBI interview raised more questions than it answered — no surprise, I guess, since they had already decided not to charge her. But I haven’t decided not to charge her. And I’ve got all these subpoenas. Why not bring her in for a grilling and clear up some things?

Speaking of things to clear up, there’s also that Fast and Furious scandal. I vaguely recall Congress trying to get some information about that. And no wonder . . . it’s not in every case that you find a Border Patrol agent murdered with a gun the ATF and Justice Department let “walk” to Mexico. If I’m remembering right, the Obama administration so wanted that information buried that Attorney General Holder was willing to be cited for contempt of Congress over it. President Obama even invoked executive privilege to keep lawmakers from eyeballing documents.

But I’m not a lawmaker. No, no: I’m a law-enforcer. As a prosecutor, I’ve got ways to get at witnesses and documents that Congress can only dream of. Just ask Special Counsel Mueller. Or better yet, ask Paul Manafort. Or Mrs. Manafort — she can tell you what it’s like to have FBI agents break into your house with their guns drawn in the middle of the night, all because Mueller’s team decided to get a search warrant with covert-entry authority. They could have just given a subpoena to Manafort’s lawyer, but what fun would that be?

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