Witch Hunt: The Getting of the President

Yes, it’s a witch hunt. With the witch hunters having not just obvious but massive conflicts of interest.

The Wall Street Journal is concerned. And correctly so.

In a Friday editorial, the not-always-friendly-to-Trump paper headlined:

Robert Mueller’s Mission

The special counsel needs to rise above his Comey loyalties.

The editorial read in part:

That didn’t take long. Barely a week after James Comey admitted leaking a memo to tee up a special counsel against Donald Trump, multiple news reports based on leaks confirm that special counsel Robert Mueller is investigating the President for obstruction of justice. You don’t have to be a Trump partisan to have concerns about where all of this headed.

After cautioning the President against firing Mueller because among other things it would create Christmas for his political opponents, the editorial continued:

… There are nonetheless good reasons to raise questions about Mr. Mueller’s investigation, and those concerns are growing as we learn more about his close ties to Mr. Comey, some of his previous behavior, and the people he has hired for his special counsel staff. The country needs a fair investigation of the facts, not a vendetta to take down Mr. Trump or vindicate the tribe of career prosecutors and FBI agents to which Messrs. Mueller and Comey belong.

Start with the fact that Mr. Comey told the Senate last week that he asked a buddy to leak his memo about Mr. Trump specifically ‘because I thought that might prompt the appointment of a special counsel.’ Did Mr. Comey then suggest Mr. Mueller’s name to Mr. Rosenstein? He certainly praised Mr. Mueller to the skies at his Senate hearing.

The two former FBI directors are long-time friends who share a similar personal righteousness. Mr. Mueller, then running the FBI, joined Mr. Comey, then Deputy Attorney General, in threatening to resign in 2004 over George W. Bush’s antiterror wiretaps.

There’s more, including a very interesting tale revolving around Mueller’s role in a 2006 investigation of a Democratic Member of Congress in which he resisted a White House effort to instruct on the basis of separation of powers. The concern in that story is Mueller’s charge into the legislative branch without proper acknowledgment of the basic constitutional role of the executive and the legislative. He instead got on his high horse and accused the Bush White House of protecting a corrupt Democratic House member, a laughable charge on its face, particularly when Republican Bush was acting at the request of then-Republican House Speaker Denny Hastert who was furious over the FBI’s role in the affair. The affair was finally settled only with a push from the D.C. Circuit Court of Appeals which “later ruled that the (Mueller-led) FBI raid had violated the Constitution’s Speech or Debate Clause.”

Also on Friday, by coincidence, The American Spectator ran this piece by Daniel Bonevac, a Professor of Philosophy at the University of Texas at Austin. Bonevac headlined:

Investigate the Investigators

The Mueller operation already needs a special counsel of its very own.

Among his other points Professor Bonevac said this:

Quis custodiet ipsos custodes? Who is to guard the guardians themselves?

… On Wednesday the Washington Post reported that five unnamed officials had said that the President is now under investigation for obstruction of justice for his firing of FBI Director James Comey. A day later, similarly unnamed sources said that the President’s adviser and son-in-law Jared Kushner is also under investigation. Let’s be clear: These leaks are immoral and probably illegal. They are serious violations of professional codes of ethics. They seem to have no purpose other than inflicting political damage on the administration. And they are coming from multiple sources connected to the Special Counsel’s investigation.

But this is only the beginning.

Professor Bonevac has it exactly right.

There is a reason the one-time Independent Counsel law, once so popular in Washington, was eventually done in.

Over here at PBS is a short history of the Independent Counsel Law that came to be in the Watergate scandal and was finally dispatched by a bipartisan consensus of Congress in 1999. This followed over two decades of abuse that essentially featured out-of-control prosecutors expanding their own jurisdiction into endless investigations fueled by staffs of eager-beaver lawyers anxious for presidential scalps or at a minimum the scalps of those around the president. The PBS history, written by Jim Mokhiber and published in 1998, one year before Congress pulled the plug, says among other things this:

By the time Nixon resigned on August 9, 1974, Archibald Cox and his successor Leon Jaworski had carved out a new space in the public mind for the special prosecutor’s role in reining in official corruption.

That is exactly what happened. Over time, however, the realization of the constitutional Frankenstein Congress had created began to dawn. One President after another was confronted with “Independent” Counsels who strangely seemed not so-so-independent when it came to satisfying their own prosecutorial whims. Reagan alone had seven of them to contend with. Fed up, he okayed a constitutional challenge to be taken to the Supreme Court. Alas, Reagan’s arguments lost even with the Court, which ruled 7-1 against the challenge. Only the as-always prescient and constitutionally wise Justice Antonin Scalia correctly put his finger on the problem. As Mokhiber notes, Scalia wrote in part (bold print supplied by me for emphasis):

More specifically, Scalia contested the majority’s conclusion that independent counsels were “inferior officers” who remained under the executive’s ultimate control. An independent counsel, he suggested, actually possessed some powers and advantages that even the Attorney General did not. Scalia worried that an overzealous, unaccountable independent counsel could pick his or her targets, and then prosecute them for even the most minor or technical offenses. Moreover, Scalia wrote, a partisan Special Division might appoint a committed foe of the administration or the individual under investigation. “Nothing is so politically effective,” he wrote, “as the ability to charge that one’s opponent and his associates are not merely wrongheaded, naive, ineffective, but, in all probability, ‘crooks.’” Scalia prophesied that the majority’s decision would weaken the Presidency, and expose the head of the executive branch to “debilitating criminal investigations” — an opinion that has earned Justice Scalia new and unexpected admirers in recent days.

Exactly. So the law, after burning the Clinton administration badly, was given the axe in 1999.

What we now see is a “special prosecutor” who is appointed under the authority of the Attorney General — or in this current case since Attorney General Jeff Sessions has recused himself, by Deputy Attorney General Rod Rosenstein. Yet even with that change, what do we see?

There is and remains zero evidence of candidate Trump colluding with Vladimir Putin to win the 2016 election. Instead, as revealed in Shattered: Inside Hillary Clinton’s Doomed Campaign, we find that once the 2016 campaign had ended with, for Team Clinton, a shocking loss, an angry Hillary Clinton looked to blame anyone other than herself for her defeat. Authors Jonathan Allen and Amie Parnes write that in lieu of their candidate accepting responsibility for her own defeat, “In Brooklyn, her team coalesced around the idea that Russian hacking was the major unreported story of the campaign…”

And thus the birth of a storyline for Hillary allies. Never mind that the candidate didn’t go to Wisconsin because she thought she had it in the bag. Never mind that she had campaigned in the coal states of Pennsylvania and Ohio on a platform of getting rid of coal — and hence coal jobs. No, the real reason Hillary lost was that the Russians colluded with Trump and the election was stolen.

It’s one thing to build political myths to soothe a losing candidate and her supporters. It’s quite another to successfully get a “special prosecutor” to investigate a crime that never happened — and stock the prosecutors staff with partisan lawyers who contributed to her campaigns or even, in one case, actually worked for the Clinton Foundation. And then start looking for all kinds of “crimes” that were never in evidence when charged with investigating a crime that turns out not to be. This is the classic of how the Whitewater investigation of Bill Clinton became the Monica scandal. Now we are apparently moving from the phony Russian-Trump collusion charge to “obstruction of justice” and Jared Kushner’s finances. Neither of which are tied to the collusion story.

Again, the WSJ editorial:

Meanwhile, Mr. Mueller’s staff appointments suggest that he is preparing for a long prosecutorial campaign. One unusual choice is Michael Dreeben, a highly regarded Deputy Solicitor General whose expertise is criminal law and the Constitution. He is not a prosecutor or counter-intelligence expert. Is Mr. Dreeben on hand to make a legal case for impeachment?

The special counsel has also recruited Andrew Weissmann, who oversaw the Enron Task Force and led the prosecution of the Arthur Andersen accounting firm. The Supreme Court unanimously overturned Andersen’s conviction, though too late for Andersen’s 28,000 U.S. employees.

Mr. Weissmann has donated to Hillary Clinton’s political campaign, but more relevant for this case he was highly criticized for his legal conduct over the years by the New York Observer newspaper. “In Andrew Weissmann, The DOJ Makes a Stunningly Bad Choice for Crucial Role,” said one headline in January 2015. The owner of the Observer at the time? Jared Kushner, President Trump’s son in law and now a White House aide.

With that history, can Mr. Weissmann fairly judge the actions of the Trump family and campaign? And knowing that history, why would Mr. Mueller choose Mr. Weissmann for his prosecutorial team when the appearance of fairness is crucial to public acceptance of the result?

Then there is this 2015 Politico report about depositions and the Clinton Foundation. Wrote Politico:

In a filing last month, Clinton Foundation attorneys Jamie Gorelick and Jeannie Rhee called Klayman’s allegations “fatuous” and legally defective.

Note the name “Jeannie Rhee,” identified as a lawyer for the Clinton Foundation? Fast forward to current news and one finds this over at Breitbart:

A more controversial pick of Mueller’s was former prosecutor and WilmerHale partner Jeannie Rhee.

Yes, you read that right. A lawyer who worked for the Clinton Foundation is now on the Mueller team. In attorneys Weissmann and Rhee alone — Weissman who was a target for intense criticism by Jared Kushner’s then-newspaper and Rhee a lawyer for the Clinton Foundation — their involvement in investigating both Kushner and the President who defeated Hillary Clinton is a massive conflict of interest.

Let’s cut to the chase. This isn’t an investigation. It’s the Washington Swamp going on offense. It is exactly what Justice Scalia foresaw so long ago:

“Nothing is so politically effective,” he wrote, “as the ability to charge that one’s opponent and his associates are not merely wrongheaded, naive, ineffective, but, in all probability, ‘crooks.’” Scalia prophesied that the majority’s decision would weaken the Presidency, and expose the head of the executive branch to “debilitating criminal investigations.”

Justice Scalia had it right.

This investigation isn’t an investigation. The President is right: It’s a witch hunt.

Jeffrey Lord
Jeffrey Lord
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 Jeffrey Lord, a contributing editor to The American Spectator, is a former aide to Jack Kemp and Ronald Reagan. An author and CNN commentator, he writes from Pennsylvania at jlpa1@aol.com and @JeffJlpa1. His new book, What America Needs: The Case for Trump, is now out from Regnery Publishing.
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