//  7/13/17  //  Commentary

It is increasingly obvious that Special Counsel Robert Mueller’s investigation poses a real threat to Donald Trump, his family, and his presidency.  There is accumulating evidence that the Trump campaign colluded with Russia and then lied about it.  There is a serious argument that facts already in the public domain show obstruction of justice by the President himself.  And Mueller has assembled an all-star team of experienced, well-respected prosecutors.

So the President’s minions have been laying the groundwork for Mueller’s dismissal, loudly complaining about the fairness of his investigation.  It is important to be clear about the utter frivolity of the arguments they are raising.  It’s also important to be clear that we are in new territory here.  Special prosecutors and independent counsels have been criticized in the past, based on how they conducted their investigations.  But the attacks on Mueller and his team are pure smears, unconnected to anysteps they have taken as prosecutors.

Trump’s loyalists are making four claims.  First, Mueller and his team are “bad people.”  Second, the investigation is “out of control.”  And third, the investigation cannot be objective and evenhanded, because Mueller has hired too many prosecutors who are Democrats, or who contributed to the Clinton campaign, or who donated to other Democratic candidates.  Fourth, the investigation cannot be impartial, because Mueller is friendly with James Comey, the fired FBI director.  Let’s take these in order.

First, “These are bad people.”  This last month from former House Speaker and longtime moral exemplar Newt Gingrich—who had lauded Mueller at the time of his appointment as a “superb choice” with an “impeccable” reputation for “honesty and integrity.”  Three days after Gingrich changed his mind, Trump himself tweeted that the investigation into ties between Russia and his campaign was being “led by some very bad and conflicted people.”

You might think that if you were going to call career public servants “bad people,” you would be prepared to back up the charge with, you know, evidence.  Or at least with specifics.  But Gingrich and Trump have nothing.  They only concrete accusation Gingrich could come up with was that Mueller was hiring too many Democrats.  I’ll get back shortly to the remarkable suggestion that line prosecutors should be assessed based on their party affiliations or political contributions.  But just think for a moment about where we are when the President of the United States and one of his surrogates feel fine sliming government lawyers—who they know won’t defend themselves in the press—as “bad people,” without a shred of explanation, aside from their membership in the country’s largest political party.

Next allegation:  Mueller’s investigation is “out of control.”  This from Sean Hannity and from Tom Fitton, the head of the anti-Clinton group Judicial Watch.  It’s an amazing charge, since virtually nothing is known about any steps that Mueller has taken since his appointment, aside from hiring experienced, well-respected prosecutors.  Nothing is known because it shouldn’t be:  Mueller is conducting his operation confidentially, as prosecutors are supposed to do.  He isn’t talking to the press, and neither are any other members of his team, as far as we know.  Some Trump loyalists have charged that Mueller’s team is leaking information to reporters, but there is zero evidence to support that claim.  There is zero evidence that Mueller and his team have taken any investigative step for which they could be faulted.  So the business about being “out of control” is based entirely on Mueller’s hiring decisions.

About those hiring decisions:  Seven of the first 15 prosecutors Mueller has hired have donated to Democratic candidates, five of them to Hillary Clinton.  The one who made the largest donations is James Quarles, who worked as an assistant special prosecutor on the Watergate investigation, and who has also donated to Republic candidates.  Mueller himself is apparently a Republican.

None of this matters.  Federal prosecutors are allowed to belong to political parties and allowed to donate to political campaigns, and federal law prohibits hiring or promoting career prosecutors based on their political affiliation.  Federal prosecutors are not allowed, of course, to base their prosecutorial decisions on their politics.  There is no evidence—zero—that Mueller or anyone on his team has ever done so.

All major investigative decisions will be made by Mueller, and the suggestion that Mueller will make those decisions with an eye to politics is particularly puerile.  This is a guy with a long track record.  There is a reason that Senators of both parties voted unanimously to confirm his appointment as FBI director under President George W. Bush—and both of his reappointments, first by President Bush and then by President Obama.  It is the same reason that Mueller’s appointment as Special Counsel this past May received virtually unanimous, bipartisan praise.

It was only later, when the investigation commenced, that complaints were made that Mueller and Comey are “best friends.”  They’re not.  They’ve worked together in the past, and they apparently like and respect each other.  That wouldn’t disqualify Mueller even if Comey was a likely target of the investigation, which he isn’t.  Trump’s private conversations with Comey, and his later firing of Comey, may be obstruction of justice, but that makes Comey a witness, not a potential defendant.

Trump and his allies aren’t really worried that Mueller’s investigation will biased.  They’re really worried that it won’t be biased: that it will be independent, objective, and out of their control.  Fitton came close to admitting this, complaining that Mueller should be “answerable in a more direct way” to a presidential appointee in the Justice Department.  Mueller is answerable to Deputy Attorney General Rod Rosenstein, who appointed him.  Rosenstein can fire Mueller, Rosenstein can ask Mueller to explain any actions he takes, and Rosenstein can reverse any actions by Mueller that Rosenstein thinks are “inappropriate or unwarranted.”  Apparently this is too long a leash in Fitton’s judgment.  Two years ago, by the way, Fitton was incensed by the failure to appoint a special prosecutor to investigate Hillary Clinton’s handling of email, because he thought it was obvious that “the Justice Department, under President Obama and his appointee, Loretta Lynch” was not “independent enough” to conduct a credible investigation.

There have been suggestions in some news reports that the criticisms of Mueller are part of a tradition.  Democrats, after all, “famously put Independent Counsel Kenneth W. Starr in the crosshairs during his examination of President Bill Clinton.”  But this is a false equivalence.  Starr and his staff were criticized for their decisions as prosecutors.  They were faulted for turning an investigation of real estate transactions into a probe of sexual misconduct, for improperly pressuring witnesses to provide incriminating information, for serving a subpoena on a 16-year-old at his high school to testify against his father.  They weren’t attacked for who they were, for their political affiliations, for campaign contributions they had made, or for who they had worked with.  They weren’t smeared as “bad people.”  We’ve had decades of special prosecutors and independent counsels, investigating Democratic and Republican administrations, and we’ve never seen these kinds of sleazy attacks on federal prosecutors—certainly not from a sitting President.  In this, as in so much else, Trump and his apologists are taking American politics to new depths of demagoguery.


Versus Trump: Updates, Y'all!

11/9/17  //  Commentary

You want updates, so we've got updates! On this week’s episode of Versus Trump, Jason and Easha revisit several important cases and news items that we've previously mentioned so that you have the latest information on them. Listen now!

Jason Harrow

Equal Citizens

Easha Anand

San Francisco

Versus Trump: The First Shoe (with guest David Sklansky)

11/2/17  //  Uncategorized

On this week’s episode of Versus Trump, Jason, Charlie, and special guest David Sklansky discuss the first shoe to drop from the Mueller investigation: the indictment of Paul Manafort and Rick Gates, and the guilty plea of George Papadopoulos. Listen now!

Jason Harrow

Equal Citizens

Charlie Gerstein

Civil Rights Corps

Easha Anand

San Francisco

The Pardon Power is a Bug, Not a Feature

11/1/17  //  Commentary

The pardon power is a kind of booby trap that threatens to explode our system of constitutional accountability.

Michael C. Dorf

Cornell Law School