Why the latest line of attack doesn’t hold water.
Deputy Attorney General Rod Rosenstein appointed Robert Mueller III, a former FBI director, to serve as special counsel overseeing the investigation of alleged ties between Russian officials and President Trump’s campaign. Mr. Rosenstein acted Wednesday evening in Attorney General Jeff Sessions’ stead, since Mr. Sessions had recused himself from any involvement in Russian investigation matters. Mr. Sessions did so because of his own contacts with the Russian ambassador to the U.S. while he was advising the Trump campaign. Deputy Attorney General Rosenstein briefed senators in a closed meeting on Thursday. Senator Lindsey Graham, Republican of South Carolina, said his take-away from the meeting was that what had started out as a counter intelligence investigation is “now being considered a criminal investigation.” As for the Trump-hating left and their lackeys in the mainstream media, they have already rendered a guilty verdict against President Trump for obstruction of justice without any credible facts to support it to date.
Mr. Mueller, a well-respected former federal prosecutor whose appointment was widely praised in Congress on both sides of the aisle, will have a broad investigatory mandate. He is authorized to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” as well as other matters that “may arise directly from the investigation.” With such authority, Mr. Mueller could explore such related issues as the circumstances behind the firing of James Comey as FBI director, conversations between Mr. Comey and President Trump, including any perceived efforts on President Trump’s part to influence the direction of any FBI investigation, and the unmasking and leaking of classified information pertaining to former national security adviser Michael T. Flynn.
Mr. Mueller will have free reign to call for a grand jury, issue subpoenas and decide whether to press criminal charges. His requests for all the resources he needs, on top of what the FBI already has in conducting its ongoing investigations, will almost certainly be honored. Moreover, Mr. Mueller, whose tenure as FBI director made him a popular figure with FBI career agents, will trust the FBI enough to piggyback on its findings rather than have to start from scratch.
President Trump’s initial reaction to the special counsel appointment was reportedly restrained. However, he complained in an early morning tweet on Thursday that he was being unfairly singled out for special counsel scrutiny. “With all of the illegal acts that took place in the Clinton campaign & Obama Administration, there was never a special councel (sic) appointed!” he tweeted. “This is the single greatest witch hunt of a politician in American history!” Maybe so, but Mr. Mueller’s appointment, which provides the Democrats and anti-Trump media the independent special counsel they have demanded, will give the Trump administration at least some breathing room to return to its policy agenda. That’s not to say that Democrats, their leftist base and Trump haters in the mainstream media won’t continue to raise the Watergate and impeachment banners, and try to put political pressure on Mr. Mueller to come out with findings that support their pre-determined verdict of guilty. Mr. Mueller’s reputation for integrity, and dispassionate pursuit of all relevant facts upon which to render an unbiased judgment, will be sorely tested.
President Trump’s many enemies calling for his head, in the media and political world, have zeroed in on the charge of obstruction of justice. They obtained ammunition in that regard from the alleged memo that former FBI Director Comey is said to have written following a one-on-one conversation he had with the president, in which Comey claimed President Trump had asked him to let go of the FBI’s investigation of Flynn. No doubt, Mr. Mueller will explore all avenues in gathering and analyzing facts that could possibly make out a credible case of obstruction of justice against the president and/or any of his aides. However, based on what is known publicly to date, nothing President Trump has done comes anywhere close to constituting obstruction of justice.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, wrote that if the Comey memo is “food for obstruction of justice, it is still an awfully thin soup.” The operative statute is Section 1503 of Title 18, United States Code. It forbids, among other things, “corruptly or by threats or force, or by any threatening letter or communication” influencing, obstructing, or impeding, or endeavoring to influence, obstruct, or impede, “the due administration of justice.”
The question is whether President Trump’s alleged request to Comey to let go of the Flynn investigation, or any other negative action or statement by the president with regard to the Russia investigation, constitutes actionable obstruction of justice. That would require proof of the president’s specific wrongful intent to “secure an unlawful benefit for oneself or another,” according to Professor Turley.
It is certainly possible that during the course of Mr. Mueller’s investigation his investigators will turn up tapes, documents or witnesses clearly establishing President Trump’s criminal state of mind. However, his simply asking for leniency, without more, on behalf of someone he likes would not do it. While ill-advised, President Trump’s advocacy on behalf of Flynn, as well as his many public criticisms of the whole Russian collusion conspiracy theory, evidently had no effect on the continuation of the FBI’s Russia investigation. Neither, for that matter, did President Trump’s firing of Comey, which the president linked to his frustration with the amount of time devoted to that investigation, to the exclusion of an investigation into illegal leaks of classified information. Acting FBI Director Andrew G. McCabe, a Democrat himself, testified to a congressional committee last week, after Comey was fired, that the FBI had sufficient resources to continue its investigation. He said that the FBI’s work would continue smoothly with most of the same investigatory team still in place. He added, “there has been no effort to impede our investigation to date.” If taken at his word, McCabe’s testimony is a complete refutation that there was any effort from the Trump White House or Justice Department to obstruct the ongoing FBI investigation into Russia’s role and alleged coordination with the Trump team in trying to influence the presidential election.
Ironically, Comey’s own actions and testimony would bolster President Trump’s defense against a charge of obstruction of justice. If Comey thought that the president was committing obstruction of justice by trying to pressure him into dropping the Flynn investigation for improper reasons, Comey had a legal duty to immediately report his suspicion to the Department of Justice. There is no evidence that Comey did so. Moreover, Comey testified under oath on May 3rd, before the Senate Judiciary Committee on FBI oversight, that he had not experienced political interference with the FBI’s ongoing investigation activities. He said in response to a question from Hawaii Democratic Senator Mazie Hirono, regarding possible interference with the FBI’s work by the Trump Justice Department, that “where we were told to stop something for a political reason, that would be a very big deal. It’s not happened in my experience.”
Now, with the Deputy Attorney General’s appointment of Robert Mueller as special counsel, who has been granted a broad investigatory mandate, reasonable people interested in the truth should allow the special counsel’s investigation to proceed wherever the facts take him. He will coordinate with the FBI as he sees fit, while the congressional committees undertaking their own oversight investigations of alleged Russian interference in last year’s presidential campaign can proceed as well. Don’t expect the left and their friends in the mainstream media to act reasonably, however. Their agenda continues to be to take down President Trump at all cost, no matter what the truth ends up to be.