2017-05-18 16:26:20 UTC
Responsible And Necessary: The Appointment Of A Special Counsel
The Justice Department appointed Robert S. Mueller III (above), a former
F.B.I. director, as special counsel to handle the Russia probe.
I am reading conservative pundits fuming over this development for a number
of reasons, some of them valid and troubling. However, there is no good
argument to be made that a Special Counsel isn’t necessary now.
Assistant Attorney General Rod Rosenstein explained his decision to make the
appointment (remember, he is acting AG in the Russian investigation, because
Jeff Sessions was bullied and hectored into recusing himself, also
“In my capacity as acting Attorney General, I determined that it is in the
public interest for me to exercise my authority and appoint a Special
Counsel to assume responsibility for this matter.My decision is not a
finding that crimes have been committed or that any prosecution is
warranted. I have made no such determination. What I have determined is that
based upon the unique circumstances, the public interest requires me to
place this investigation under the authority of a person who exercises a
degree of independence from the normal chain of command.”
Exactly. As for the last sentence, President Trump has no one to blame but
himself. His own, typical, blundering, blathering ways created this
atmosphere—that and “Deep State” leaks calculated to undermine him, and a
news media feasting on those leaks like sharks on chum.
It is being argued that you can’t appoint a special prosecutor unless there
is a finding that crimes have been committed. Here are the relevant sections
of the law:
§ 600.1 Grounds for appointing a Special Counsel.
The Attorney General, or in cases in which the Attorney General is recused,
the Acting Attorney General, will appoint a Special Counsel when he or she
determines that criminal investigation of a person or matter is warranted
(a) That investigation or prosecution of that person or matter by a United
States Attorney’s Office or litigating Division of the Department of Justice
would present a conflict of interest for the Department or other
extraordinary circumstances; and
(b) That under the circumstances, it would be in the public interest to
appoint an outside Special Counsel to assume responsibility for the matter.
§ 600.2 Alternatives available to the Attorney General.
When matters are brought to the attention of the Attorney General that might
warrant consideration of appointment of a Special Counsel, the Attorney
(a) Appoint a Special Counsel;
(b) Direct that an initial investigation, consisting of such factual inquiry
or legal research as the Attorney General deems appropriate, be conducted in
order to better inform the decision; or
(c) Conclude that under the circumstances of the matter, the public interest
would not be served by removing the investigation from the normal processes
of the Department, and that the appropriate component of the Department
should handle the matter. If the Attorney General reaches this conclusion,
he or she may direct that appropriate steps be taken to mitigate any
conflicts of interest, such as recusal of particular officials.
I don’t read the law so narrowly. The law requires that there be a
determination that a criminal investigation is warranted, not that crimes
have been committed.
What really upsets the rightish pundits, and what should trouble everyone,
is that the development is a victory for the “resistance” and a news media
actively trying to force a President out of office. They created the false
“crisis” that in turn trapped the President—he’s not hard to trap— into
creating sufficient uncertainty and distrust that the public would not
accept on faith that “the Russian interference with the election” and
possible involvement of the Trump campaign were being honestly and
independently investigated. Attorney General Sessions should not have had to
recuse himself from the matter for having the exact same, open, routine
meetings with the Russian ambassador that his Democratic colleagues did, but
he also blundered and gave the news media a chance to make him seem
suspicious, so he had no other responsible choice. This placed the matter
squarely on Rosenstein’s shoulders, and his integrity was being questioned
The Washington Post’s Dana Milbank unconscionably attacked him in a column,
calling the career government lawyer a “national joke” because he “destroyed
his credibility by giving cover and legitimacy to Trump’s decision to fire
FBI Director James B. Comey, the man overseeing the agency’s probe of the
Trump campaign’s possible collusion with Russia in tilting the 2016 election
Trump’s way.” This was a disgraceful accusation. It was completely proper
for the President to ask for a Justice Department memo making the argument
for Comey’s dismissal—hardly a difficult one to make—and as a government
lawyer, Rosenstein was serving the legitimate needs of his client, the
United States Government, by preparing such a memo.
I know Milbank, being a) no lawyer and b) an anti-Trump, anti-Republican
hack, thinks that the Sally Yates approach is best: shiv your client for
“the greater good.” Yates, however, is an unethical lawyer, and Rosenstein
Milbank also was angry with him for daring to shoot down a Post “anonymous
source” who claimed that he had threatened to resign. The journalist’s
innuendo: the Post’s mystery source was right about what Rosenstein did, and
the man himself was not. (Milbank also posted as fact more fake news, the
now debunked news media claim that White House press secretary, Sean Spicer,
was hiding in the bushes on the White House north lawn.)
The Democrats want to make the public distrustful of their President, and
that’s why a Special Counsel is such a victory for their strategy for
undermining democracy. An investigation suggests wrongdoing, and the need
for a Special Counsel suggests it even more. The last time one was appointed
(the absurd Valerie Plame Affair), also through partisan media agitation,
Democratic hyperbole and rumor-mongering, it was eventually determined that
no crime had been committed, but a White House staffer went to prison for
lying to protect the figure the press was out to get: Vice President Dick
Cheney. The investigation shadowed the Bush presidency for more than a year.
Here is one conservative pundit, Liz Shield’s, rueful prediction, explaining
why the appointment is a “disaster.”
Those who are questioned in connection with the Russia/election influence
operation are not going to want to talk. They will not want to talk because
they do not want to get Scooter Libby-ed. Someone is going to have to get in
trouble for this, the people in the Trump campaign orbit know this and they
will, on advice of their attorneys, be very careful what they say to
All the Obama folks that are comfortably situated in the DOJ and the IC will
leak disinformation. The media will eat it up like candy, and there will be
nonstop coverage of various and sundry “scandals.” The Democrats will
campaign on the “scandal-plagued” Trump administration and this will go on
for years. FOR YEARS.
What evidence do we have that the Trump campaign was involved with Russia to
influence the election? There is none.
Still, the Trump Justice Department is doing the right thing, just as the
Obama Justice Department did not when it refused to appoint independent
investigators for the IRS scandal, Fast and Furious, Benghazi, and the
Hillary Clinton e-mail investigation. The news media, however, backed those
non-decisions by giving little coverage to them, never calling any of them
an “Obama Presidency crisis,” and often dismissing them as “nothingburgers.”
It won’t matter if the Trump campaign allegations turn out to be
nothingburgers if the sound and fury surrounding them make it impossible for
the President to do his job, or better yet, if the constant barrage of hate,
suspicion, leaks and half-truths trigger an unstable personality to do
something that really is impeachable.
Then it will all be worthwhile!
Addendum: I see that the President has already issued some stupid tweet
complaining about the appointment It is astounding that there is nobody on
his staff sufficiently persuasive or brave to explain to him how
self-destructive his predictable public tantrums are..