It's only Monday, and it has already been an eventful week on the Russia investigation front. We'll get to the president's tweets and the DOJ's response in a moment, but let's start with a fresh pair of op/eds urging the conclusion of Robert Mueller's probe. Finding anti-Mueller commentary online isn't exactly a challenge, but these pieces are noteworthy because of their authors. The first comes from a respected former US Attorney General who served during the last Republican administration, but isn't known as a partisan fire-breather or bomb-thrower. The other comes from a longtime Democratic strategist with close ties to the Clintons. In an essay penned by Michael Mukasey for USA Today, the former top federal law enforcement officer contends that the current special counsel investigation is operating beyond the bounds of standard operating procedure -- and questions its initial legal basis:
This, from a former attorney general, gets to the question of whether there was a proper basis for the Mueller investigation to even start. https://t.co/TOpQyXKf6a— Brit Hume (@brithume) May 21, 2018
Because Attorney General Jeff Sessions had worked on the Trump campaign, he recused himself from the matter, and so the deputy — Rod Rosenstein — took the decision to appoint a special counsel. The regulations require that such an appointment recite the facts justifying the conclusion that a federal crime was committed, and specify the crime. However, the initial appointment of Robert Mueller did neither, referring instead to a national security investigation that a special counsel has no authority to pursue. Although Rosenstein apparently tried to correct his mistake in a new appointment memo, he has thus far refused to disclose, even to a federal judge, a complete copy of it. In other investigations supposedly implicating a president — Watergate and Whitewater come to mind — we were told what the crime was and what facts justified the investigation. Not here.
Nor have any of the charges filed in the Mueller investigation disclosed the Trump campaign’s criminal acceptance or solicitation of help from the Russians. The one indictment that relates to Russian criminality charges that the Russians hacked Democratic Party computers and committed other social media abuse, but says specifically that if the Trump campaign got the benefit of it, that was “unwitting” — i.e., without criminal intent...The ongoing investigation saps the resources and attention of the Trump administration. If the administration cannot function, the burden of this constantly shifting investigation will give rise to a narrative that any failure was due to the Mueller diversion — that the Trump administration was stabbed in the back. That is potentially more damaging to our politics than any salaciousness that might be tossed up by Robert Mueller. For both legal and political reasons, the end of this investigation is overdue.
Read the full thing here. A few points: First, Mukasey's insights are valuable and welcome, and dismissing him as a right-wing crank is a mistake. Like Jonah Goldberg, I don't know what "ending" the investigation -- especially prior to Mueller's planned timeline -- would or should look like. A number of people have also disputed the accuracy of some of Mukasey's points. For instance, as of last week, the special counsel has disclosed the appointment memo to a federal judge. There are also legitimate questions about whether Mukasey is correctly reading the law regarding how much of a legally-legitimate basis for the investigation must be publicly disclosed (as opposed to privately determined). And it looks like the former AG may have misapplied an argument about whether already-filed indictments effectively rule out Trump campaign complicity in possible Russian collusion:
In reality, the indictment to which Mukasey refers addresses *only* Russia's social media manipulation operation. We still don't know what Mueller has found or will conclude regarding whether anyone linked to the Trump campaign wittingly entered into the emails conspiracy. /end— Charlie Savage (@charlie_savage) May 21, 2018
That is an important distinction. Given these critiques, I find Mukasey's piece less persuasive than a face-value reading would initially suggest. Then there's the jaw-dropping commentary from former top strategist to both Bill and Hillary Clinton, Mark Penn, published in The Hill. Hugh Hewitt's tweet about it sums up a number of my feelings, because much of the piece reads like it could have been written by someone like Sean Hannity or Lou Dobbs, replete with scathing 'deep state' references:
There’s a heck of a story behind this @Mark_Penn op-ed, which I’ve read 3 times now to make sure I read it right. Then I read Penn’s bio. Twice. I just don’t know what the story is. https://t.co/vf3PGUeibn— Hugh Hewitt (@hughhewitt) May 21, 2018
The “deep state” is in a deep state of desperation. With little time left before the Justice Department inspector general’s report becomes public, and with special counsel Robert Mueller having failed to bring down Donald Trump after a year of trying, they know a reckoning is coming. At this point, there is little doubt that the highest echelons of the FBI and the Justice Department broke their own rules to end the Hillary Clinton“matter,” but we can expect the inspector general to document what was done or, more pointedly, not done...With this report on the way and congressional investigators beginning to zero in on the lack of hard, verified evidence for starting the Trump probe, current and former intelligence and Justice Department officials are dumping everything they can think of to save their reputations...They started by telling the story of Alexander Downer, an Australian diplomat, as having remembered a bar conversation with George Papadopoulos, a foreign policy adviser to the Trump campaign. But how did the FBI know they should talk to him? That’s left out of their narrative. Downer’s signature appears on a $25 million contribution to the Clinton Foundation. You don’t need much imagination to figure that he was close with Clinton Foundation operatives who relayed information to the State Department, which then called the FBI to complete the loop. This wasn’t intelligence. It was likely opposition research from the start.
Penn goes on to state that while Mueller can't realistically be fired, he should be "defeated," like Kenneth Starr was in the 1990's. Among his suggestions to that end are (1) the DOJ Inspector General digging into how the Trump/Russia investigation began, (2) Trump's legal team aggressively challenging Mueller and Rosenstein in federal court, and (3) the president testifying on national television, from the White House. I don't know what to make of this column, aside from discerning that Mr. Penn appears to have decided to become the latest former Clintonite to split very dramatically from his former bosses and ostensible party. His concluding paragraph: "Stopping Mueller isn’t about one president or one party. It’s about all presidents and all parties. It’s about cleaning out and reforming the deep state so that our intelligence operations are never used against opposing campaigns without the firmest of evidence. It’s about letting people work for campaigns and administrations without needing legal defense funds. It’s about relying on our elections to decide our differences."
That salvo is premised on the notion that Mueller's work is illegitimate, and that America's intelligence operations were, in fact, used against an opposing campaign without "the firmest of evidence." That suspicion may be true, or it may not. But such an extraordinary claim should not simply be accepted without, well, the firmest of evidence. As I tweeted over the weekend, I'm not inclined to go along with either partisan narrative on this one because I do not know whom or what to trust at this point:
I have big Q’s re timeline/provenance of DOJ’s Russia probe & don’t just assume Obama-era actions were all above board. BUT if the allegation is partisan infiltration / “spying,” to hurt Trump, isn’t it...*highly relevant* that it didn’t leak during the election, which Trump won? https://t.co/KGMWDkoMaa— Guy Benson (@guypbenson) May 20, 2018
If this were some giant "deep state" operation designed to crush Trump's candidacy, the existence of a federal counterintelligence probe into his campaign would have leaked prior to the election, right? That almost certainly would have killed off his campaign, which barely threaded the electoral needle in the first place, without a damaging eleventh-hour revelation shaking the political earth beneath it. But that wasn't the October surprise American voters got. The reopening of Hillary's email investigation was, and it may have cost her the election (a development that was, as I've written, her own damn fault). Some people would argue that the "deep state" plotters didn't think Trump would win, so they didn't pull out all the stops. But that doesn't really make much sense. If they were bound and determined to finish him off, why wouldn't they detonate the PR bomb of their own careful making, just to be absolutely certain he would fail? I don't accept at face value that the Obama-era decisions about these issues were all justified or proper. But Trump's 2016 victory stands as a major logical obstacle to the "anti-Trump conspiracy" storyline.
As I referenced in the above tweet, I still have concerns and questions about how, when, and why the "collusion" investigation began -- and at whose direction; the timetable we've been given doesn't quite seem right, based on the still-evolving facts. Also, the precise role of the FBI's CIA-linked informant/spy within Trumpworld, along with why he was engaged, and what he relayed, is a vein worthy of legitimate scrutiny. And I've also expressed concerns about how FISA warrants were secured and renewed, and would certainly like to know if there was any misconduct emanating from the intelligence and national security apparatus in targeting the Trump campaign. That's why, despite cringing at certain presidential tweets and strongly opposing the firing of Mueller, I do agree with Andrew McCarthy that Rod Rosenstein's (reportedly pre-emptive) decision to expand the already-existing Inspector General examination of potential anti-Trump misconduct or abuse of power was the right move. Michael Horowitz was appointed by Barack Obama and confirmed by a Democratic Senate -- and he's already shown himself to be a dogged investigator who's willing to go after senior people under his purview as a watchdog. Let him dig into this matter, too.
I'll leave you with this: As some polls indicate that the public increasingly views Mueller's work as politically motivated, is it true that the special counsel's office told Rudy Giuliani that they want to have the obstruction of justice portion of their findings wrapped up and published by September, contingent on a presidential interview? One one hand, there's plenty of evidence that they've been talking about closing out that part of their probe for some time. On the other, this is a pretty strident denial -- from, perhaps appropriately, an unnamed source:
A source familiar with the probe called the Sept. 1 deadline (asserted by Giuliani) “entirely made-up" and "another apparent effort to pressure the special counsel to hasten the end of his work." https://t.co/uy9kkgfoGV— Jonathan Landay (@JonathanLanday) May 20, 2018
We may have a long, wild week ahead of us.