Streetwise Professor

July 23, 2017

Robert Mueller: Destroying the Village to Save It

Filed under: Politics,Russia — The Professor @ 7:01 pm

The office of Special Counsel (like its predecessor, the Special Prosecutor) is a Constitutional monstrosity, and hence must be tightly constrained in order that it not run amok, like Frankenstein’s monster.  It must be used in only the most exigent circumstances–circumstances bordering on the existential–because the potential for misuse is so grave.

The dangers of such a position are many.

First, a Special Counsel is likely to be appointed only because deeply political considerations make ordinary prosecutorial and judicial procedures unworkable. Thus, the office is always at risk of becoming intensely politicized, and the instrument of partisan warfare.

Second, even ordinary federal prosecutorial functions are often problematic because of their great power, and the lack of accountability: these problems are even more acute for a Special Prosecutor. The power to prosecute–or even investigate–is the power to destroy: remember Ray Donavan’s lament, “where do I go to get my reputation back?” But prosecutors can–and often do–misuse this power in pursuit of personal agendas including political ambition and an overweening belief in their role as righteous defenders of public integrity (which often leads them to pursue, Javert-like, campaigns against those who offend their sense of justice). This problem is exacerbated by the lack of accountability for overreach. At times even grave misconduct results in little more than a wrist-slap, creating a huge asymmetry: overreach can greatly increase the likelihood of winning a career-advancing victory, but there is very little downside from getting called on it. (Check out how prosecutors behaved in the Ted Stevens case, and how little price they paid for their egregious misconduct.)

This problem is even more acute for a Special Counsel, for which there are virtually no ex ante or ex post accountability measures. The SC is free from any real oversight from the DOJ (like ordinary prosecutors) and runs little legal jeopardy from overreaching. Besides, it’s a temporary job, so getting fired means returning to the sinecure from which one came.

All of the recent uses of this office or its predecessor–Whitewater (something in which I was conscripted into a bit role) and Scooter Libby–give ample evidence of the risks.

Given these fundamental dangers in the office of Special Counsel, if one is to be appointed, his (or her) charge should be drawn extremely narrowly. If during his investigation of that particular matter, the SC finds evidence of other misconduct that is incapable of being addressed by the normal procedures of justice in the US, the burden should be on him to demonstrate a need to expand his authority beyond the originally authorized scope.

Indeed, to mitigate incentive problems, if a SC presents such evidence, unless the new potential offense is extremely closely related to the one in the SC’s original authorization, a new SC should be appointed. This would constrain an SC’s incentive to engage in fishing expeditions with the goal of expanding his power.  By no means should the SC have the ability to determine, by himself, what falls within the scope of his charge.

The early days of the Mueller investigation are providing ample evidence of the dangers of the SC. He was appointed to deal with a matter that is the subject of the most intense partisan controversy in recent memory. His hiring of numerous attorneys who donated to the Democrats does nothing to undercut, and indeed reinforces, fears that he may be partisan. His friendship with a principal player in the controversy who has an axe to grind–Comey–is troubling, and even more so is his refusal to recuse himself from any matter involving Comey. The unending stream of prejudicial leaks also does not speak to investigative integrity, but instead suggests a fundamental unfairness, and a belief that all’s fair in this fight.

But the (leaked!) decision to expand the investigation to matters that have no bearing whatsoever on the supposed subject of the investigation–collusion between the Trump campaign and the Russians to influence the 2016 election–is the true indicator of how perverse Mueller’s inquiry has become. Apparently anything that Trump, or a Trump associate, ever did is fair game. What, exactly, do Trump’s dealings in 2008 have to do with Russian hacking of the 2016 election, or Trump’s possible complicity therein?

Absolutely nothing. Oh, no doubt Mueller will be able to play some Six Degrees–or Ten!–From Vladimir Putin game to establish a “nexus” between Trump dealings in Florida in 2008 and the 2016. But if that’s the standard, there is effectively no limit on investigation at all. And that’s exactly the problem.

Assistant AG Ron Rosenstein did Trump–and the American people–a grave injustice with his already vague and sloppy charge to Mueller. It gave the ex-FBI head plenty of room to run. But Mueller is already going far, far beyond that.

And what’s to stop him? That’s exactly the problem:  Nothing. He is really accountable to no one, so there is nothing to stop him, short of the political equivalent of a nuclear second strike by Trump, such as firing Mueller or perhaps pardoning himself. Yes, those might permit Trump to survive, but they would be catastrophic for his presidency, and for the governing of the country until 2021.

Mueller for all the world is giving an Oscar winning performance of a SC run amok. I don’t see any evidence to reject the hypothesis that he is an agent of the establishment tasked with bringing down the establishment’s bête noire, by any means necessary. There is considerable evidence that confirms that hypothesis, the expansion of the investigation most notably.

And mark well: the fact that Mueller apparently has to expand his investigation strongly indicates that he found nothing whatsoever to support the suspicions that led to his appointment. If he was hot on the trail of Trump-Russia collusion, there would be no need to climb into the Wayback Machine to look into things that bear no relationship, or at best extremely remote relationship, to what he was supposed to be investigating.

No, it looks like Mueller’s motto is “For my friends, anything: for my enemies–the law!”

Maybe I’m wrong. But here appearances are a form of reality. Unless Mueller can show credibly, and indeed, demonstrate beyond challenge, that his actions are not driven by political animus, and a desire to purge DC of an unwelcome invader, if he does take action against Trump it will rip the country apart and inflame all of the divisions that made Trump president in the first place. The 60 plus million Americans who voted for Trump, in large part because they believed that the system was run by self-serving apparatchiks and was inimical to their concerns and interests, will believe that their darkest suspicions were confirmed.

If you think the country is divided now, wait for that. If you think the country is nearly ungovernable now, wait for that.

This represents another category error by the establishment, the elite. They think that Trump qua Trump is the problem, and that if he goes away, life can return to normal for the establishment. As I’ve written since well before the election, that’s complete, utter, bollocks: Trump is a symptom of elite failure and popular alienation caused by elite failure. Destroying Trump will not make it safe for the establishment to go out again. It will intensify the conflict–and crucially, signal that any means fair or foul is acceptable.

In their Trump obsession, and in the appointment of a Special Counsel who appears eager to do their bidding, the establishment is reenacting an infamous moment from Vietnam: they are destroying the village, supposedly to save it.

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  1. This is absolutely the BEST analysis ever!

    Comment by Carol — July 24, 2017 @ 10:59 am

  2. Put more simply, a special counsel who “litigates” behind closed doors may effectively engineer a coup d’etat.

    Comment by Dh — July 24, 2017 @ 7:08 pm

  3. I agree with Carol – excellent analysis.

    From where I sit, this has morphed into satisfying the morbid curiosity of media idiots as to what Trump’s business looked like.

    And it continues the Goebbels line: “we are not striving for truth, but for effect”

    Thus – public radio was breathing heavy recently about a lawsuit that Yulia Tymoshenko (former PM of Ukraine) had filed years ago in New Yawk, related to Manafort activities. The lawsuit was dismissed.

    All part of the “investigation”, however.

    That’s only a part of the heavy breathing/snorting/screeching on the part of public radio and the rest of the lefty media idiots.

    Comment by elmer — July 25, 2017 @ 8:25 am

  4. I believe at some point in the near future you are going to see this in a totally different light. It is just my theory and I may end up being wrong but here is what I think. You are the president. Your biggest supporter (Sessions) announces his recusal from the investigation of the DNC fabricated Russian collusion hoax. Trumps acts outraged and shocked that this happened. They probably talk to each other every day given all of the hubris the Justice Dept has to deal with (Russia hoax/HC crimes/DNC fraud/illegal immigration/pedophile rings/travel ban/Sanctuary cities et al). You really think that Sessions would recuse himself and appoint a special investigator without Trump’s input 1 month into office. Remember, it came out of nowhere. There were no public calls yet for a special investigator at that point. No one folds before being called. Then he appoints someone that the people believe to be anti-Trump. There were stories that put forth the belief that Mueller’s appointment was orchestrated by Comey because they are friends. Why would Sessions and Rosenstein do this to their boss without the boss knowing what they were doing? Doesn’t seem like a good plan to me unless you were really threatened. Yes, Sessions name was getting dragged through the mud but he knew it was complete crap that wouldn’t stick.

    What does Trump do? He tweets that he is aghast that Session would recuse himself and acts like he was sideswiped by this move. Do you find it interesting that he does this publicly? Answer: He is in on it and wants the MSM and the public to believe that the investigator is not his ally and ANYTHING he investigates is not directed by Trump. To add to this narrative, his supporters on Twitter constantly complain that the fix is in and Mueller is hiring Democrat donating lawyers. Leaks constantly appear that among other things that Kushner is being investigated, Deutsche Bank accounts are being looked at, etc. None of these leaks are ever confirmed. In fact, Mueller has said nothing.

    Everyone with a working synapse in DC knows the Russia collusion hoax was concocted by the DNC. It is in the Wikileak emails in plain sight for God’s sake. What high priced lawyer would devote any energy to such a dead end street. They would have to ask themselves if the DNC, FBI, CIA were unable to find anything for a year, why would I bother?

    Fast forward to Trump’s interview last week with the NYT. Out of nowhere, he grants an interview to his sworn enemy and recipient of Comey’s leaked memos. Why on earth would he do that? He hates them. Right out of the gate he recounts how he is SO disappointed in Sessions over the recusal that occurred 6 months ago. Do you really think that issue is at the forefront of his mind right now when NOTHING has come out of this investigation. Why would he complain about this now to the NYT? Why would he do this interview? All of this made no sense to me initially.

    rump then goes on a tweet storm where he laments how his AG is going after HRC’s deleted emails/HRC’s hidden server/ CFI corruption. C’mon people, Session and Trump probably talk to each other every day. If I know how corrupt HRC, the DNC and CFI is, you don’t think that these two haven’t talked about it ad nausea um and discussed how they were going to handle it once they took power. Are you kidding me?

    It is a distraction for the MSM and the Dems. Of course, they took the bait. The Sessions “potential firing” has been front and center in the media. All the while, Sessions has shut down numerous pedophile rings, helped reduce illegal immigration, fought for the travel ban, and strengthened law enforcement. He has carried out every promise Trump made. Do you think that Trump doesn’t know this? BTW, have you notice how Sessions continues to announce new initiatives while all of this “distraction” is going on? He doesn’t seem too beleaguered to me.

    Watch, something bigger is coming down the pipe. Trump’s strategy is always to throw chum at the MSM while he tries to get something he wants something accomplished. I believe Mueller is not investigating Trump. We will see.

    Comment by mike dillon — July 25, 2017 @ 11:55 pm

  5. @Mike: I don’t see Trump being so calculating. A lot of people are willing to ascribe tactical genius to the man, but as far as I can tell he mostly just flies by the seat of his pants and relies on his excellent deal-making instincts to get him the result he wants. The downside is that wider effects (where even considered) are ignored by Trump, while is adversaries have entire departments looking to make gains in the shadows. If only the US had some kind of department to provide this kind of wider analysis to the President…

    @Prof: Investigating past links is hardly confirmation of over-reach. I agree that the US has a big problem with prosecutorial abuse (people going to prison for importing orchids or studying whales – that sort of thing) but:
    A: Transgressions committed in 2008 could easily be used as leverage in 2017
    B: Not investigating the past would lead to accusations of a cover-up and then then it’s back to square one!

    Comment by Hiberno Frog — July 26, 2017 @ 2:36 am

  6. This is two topics behind the tweet du jour, Prof. Forget about Mueller, weak and beleaguered Sessions needs to go. Here today, gone tomorrow.

    Comment by job — July 26, 2017 @ 6:21 pm

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