Responsible And Necessary: The Appointment Of A Special Counsel

The Justice Department appointed Robert S. Mueller III (above), a former F.B.I. director, as special counsel to handle the Russia probe.

I am reading conservative pundits fuming over this development for a number of reasons, some of them valid and troubling. However, there is no good argument to be made that a Special Counsel isn’t necessary now.

Assistant Attorney General Rod Rosenstein explained his decision to make the appointment (remember, he is acting AG in the Russian investigation, because Jeff Sessions was bullied and hectored into recusing himself, also unavoidable):

“In my capacity as acting Attorney General, I determined that it is in the public interest for me to exercise my authority and appoint a Special Counsel to assume responsibility for this matter.My decision is not a finding that crimes have been committed or that any prosecution is warranted. I have made no such determination. What I have determined is that based upon the unique circumstances, the public interest requires me to place this investigation under the authority of a person who exercises a degree of independence from the normal chain of command.”

Exactly. As for the last sentence, President Trump has no one to blame but himself. His own, typical, blundering, blathering ways created this atmosphere—that and “Deep State” leaks calculated to undermine him, and a news media feasting on those leaks like sharks on chum.

It is being argued that you can’t appoint a special prosecutor unless there is a finding that crimes have been committed. Here are the relevant sections of the law:

§ 600.1 Grounds for appointing a Special Counsel.

The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and –

(a) That investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and

(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

§ 600.2 Alternatives available to the Attorney General.

When matters are brought to the attention of the Attorney General that might warrant consideration of appointment of a Special Counsel, the Attorney General may:

(a) Appoint a Special Counsel;

(b) Direct that an initial investigation, consisting of such factual inquiry or legal research as the Attorney General deems appropriate, be conducted in order to better inform the decision; or

(c) Conclude that under the circumstances of the matter, the public interest would not be served by removing the investigation from the normal processes of the Department, and that the appropriate component of the Department should handle the matter. If the Attorney General reaches this conclusion, he or she may direct that appropriate steps be taken to mitigate any conflicts of interest, such as recusal of particular officials.

I don’t read the law so narrowly. The law requires that there be a determination that a criminal investigation is warranted, not that crimes have been committed.

What really upsets the rightish pundits, and what should trouble everyone, is that the development is a victory for the “resistance” and a news media actively trying to force a  President out of office. They created the false “crisis” that in turn trapped the President—he’s not hard to trap— into creating sufficient uncertainty and distrust that the public would not accept on faith that “the Russian interference with the election” and possible involvement of the Trump campaign were being  honestly and independently investigated. Attorney General Sessions should not have had to recuse himself from the matter for having the exact same, open, routine meetings with the Russian ambassador that his Democratic colleagues did, but he also blundered and gave the news media a chance to make him seem suspicious, so he had no other responsible choice. This placed the matter squarely on  Rosenstein’s shoulders, and his integrity was being questioned too.

The Washington Post’s Dana Milbank unconscionably attacked him in a column, calling the career government lawyer a “national joke” because he “destroyed his credibility by giving cover and legitimacy to Trump’s decision to fire FBI Director James B. Comey, the man overseeing the agency’s probe of the Trump campaign’s possible collusion with Russia in tilting the 2016 election Trump’s way.” This was a disgraceful accusation. It was completely proper for the President to ask for a Justice Department memo making the argument for Comey’s dismissal—hardly a difficult one to make—and as a government lawyer, Rosenstein was serving the legitimate needs of his client, the United States Government, by preparing such a memo.

I know Milbank, being a) no lawyer and b) an anti-Trump, anti-Republican hack, thinks that the Sally Yates approach is best: shiv your client for “the greater good.” Yates, however, is an unethical lawyer, and Rosenstein is not.

Milbank also was angry with him for daring to shoot down a Post “anonymous source” who claimed that he had threatened to resign. The journalist’s innuendo: the Post’s mystery source was right about what Rosenstein did, and the man himself was not. (Milbank also posted as fact more fake news, the now debunked news media claim that White House press secretary, Sean Spicer, was hiding in the bushes on the White House north lawn.)

The Democrats want to make the public distrustful of their President, and that’s why a Special Counsel is such a victory for their strategy for undermining democracy. An investigation suggests wrongdoing, and the need for a Special Counsel suggests it even more. The last time one was appointed (the absurd Valerie Plame Affair), also through partisan media agitation, Democratic hyperbole and rumor-mongering, it was eventually determined that no crime had been committed, but a White House staffer went to prison for lying to protect the figure the press was out to get: Vice President Dick Cheney. The investigation shadowed the Bush presidency for more than a year. Mission accomplished.

Here is one conservative pundit, Liz Shield’s, rueful prediction, explaining why the appointment is a “disaster.”

Those who are questioned in connection with the Russia/election influence operation are not going to want to talk. They will not want to talk because they do not want to get Scooter Libby-ed. Someone is going to have to get in trouble for this, the people in the Trump campaign orbit know this and they will, on advice of their attorneys,  be very careful what they say to authorities.

All the Obama folks that are comfortably situated in the DOJ and the IC will leak disinformation. The media will eat it up like candy, and there will be nonstop coverage of various and sundry “scandals.” The Democrats will campaign on the “scandal-plagued” Trump administration and this will go on for years. FOR YEARS.

What evidence do we have that the Trump campaign was involved with Russia to influence the election? There is none.

Still, the Trump Justice Department is doing the right thing, just as the Obama Justice Department did not when it refused to appoint independent investigators for the IRS scandal, Fast and Furious, Benghazi, and the Hillary Clinton e-mail investigation. The news media, however, backed those non-decisions by giving little coverage to them, never calling any of them an “Obama Presidency crisis,” and often dismissing them as “nothingburgers.” It won’t matter if the Trump campaign allegations turn out to be nothingburgers if the sound and fury surrounding them make it impossible for the President to do his job, or better yet, if the constant barrage of hate, suspicion, leaks and half-truths trigger an unstable personality to do something that really is impeachable.

Then it will all be worthwhile!

Addendum: I see that the President has already issued some stupid tweet complaining about the appointment It is astounding  that there is nobody on his staff sufficiently persuasive or brave to explain to him how self-destructive his predictable public tantrums are..

40 Comments

Filed under Ethics Train Wrecks, Government & Politics, Journalism & Media, Law & Law Enforcement

40 responses to “Responsible And Necessary: The Appointment Of A Special Counsel

  1. Trump consistently makes defensible choices look indefensible, and twitter is one of his primary tools in this. Someone needs to do a loyal thing in this case, and steal his smart phone from him…

  2. Glad to see a special counsel appointed. Not like it will matter…just like the demands for Trump’s tax returns were never going to actually assuage the hate-driven Left, a special counsel could determine that Trump is squeaky clean in this and the blindered Left will merely scream “corruption!” and “coverup!” and will launch on 1,000 rumors and engage in tin-foil hat-ism.

    If the special counsel does determine Trump has done wrong, the Left will merely feel justified in their so-far off the rails method of operation.

    Lose-Lose for the Republic.

  3. HEY WAIT A MINUTE!!!!!!!!!!

    I thought Trump firing Comey was going to stop the investigation!

    The hell?

  4. Steve-O-in-NJ

    I think Trump has already lost. Either Mueller finds something and he gets impeached, or he finds nothing and the left says someone got to someone or someone covered his tracks too well. We are going to see just how powerful the media can be when they decide to use all their resources to take down a president. USA Today actually just ran and editorial talking about how the conservative would be baying for blood if Hillary did everything Trump did, and saying think if it was the other way around. I say ha! they would be burying rather than trumpeting the story and they know it. Shameless.

    • A.M. Golden

      I agree. There’s no decision that will stop the Trump Deranged. They are bound and determined to remove a duly-elected President from office by any means necessary.

    • Well, look: it all depends if he has any learning curve at all. I figure that he has to: real estate isn’t that easy to master. IF he does what I recommended months ago and gets a real heavyweight as Chief of Staff; If he learns to stop tweeting; If he gets some instruction on some presidential basics, if he finds a competent press secretary, and if he has some legislative victories, I think he can get through this chaotic stretch. Other polls show that the news media is less popular than Trump is.

      • Chris

        The polls show that when asked about “the media” as a whole, people rate it very low, and in fact beneath Trump. But when asked about specific networks and news organizations, polls find much higher support. This is unsurprising, since “the media” includes everything from CNN to Breitbart.

        https://morningconsult.com/2016/12/07/poll-majority-find-major-media-outlets-credible/

        • That’s not what the result means. It means that left wingers like MSNBC, and conservatives trust Fox, but on the whole they all think that journalists are untrustworthy. Also, that poll was six months ago. The media’s fake news orgy to get Trump has lowered its ratings considerably

          • Chris

            Do you have a link to a more recent poll? How about a suggestion for a better methodology when it comes to evaluating the trustworthiness of individual media sources? Conflating everything in with “the media” is not helpful, because no one gets their information from a generalized “media.” They get and accept information from sources they trust and discount those that they do not. If a majority of Americans put a high level of trust in sources like the New York Times or Fox News, then that tells us more about what messages Americans are accepting than any poll about whether they trust “the media” as a nebulous entity, regardless of what political ideology that majority identifies with.

            • Junkmailfolder

              Eh, it’s the same results with polls about congressmen. Congress has a dismal approval rating, but people often rate their own delegate much higher than what they rate Congress as a whole.

    • Steve-O-in-NJ wrote, “We are going to see just how powerful the media can be when they decide to use all their resources to take down a president.”

      Speaking of the power of the media…

      “The media’s the most powerful entity on earth. They have the power to make the innocent guilty and to make the guilty innocent, and that’s power. Because they control the minds of the masses.” Malcolm X

      This quote from Malcolm X has taken a while for it to totally sink into the minds of media outlets, but they now fully understand their power and they are wielding that power irresponsibly in ways that the authors of the Constitution could have never imagined possible.

      Since the Presidential election in November 2016 the public has been unequivocally inundated with negative propaganda regarding anything President Trump says or does or is remotely connected to, this propaganda blanket is choking out the light of rational thinking and replacing it absurdly unethical rationalized thinking and the propaganda is coming directly from the media. The rights granted in the 1st Amendment are now being used directly against We the People as a tool to brainwash the masses with the propaganda hammer of the anti-Trump resistance. This in-your-face seditious propaganda that is layered full of assumptions, innuendo and outright fallacious accusations that are not supported by real facts, as an old Army buddy of mine says “they’re extrapolating into utter bull shit”. The media is taking a smidgen of fact and extrapolating that to absurd levels of theories, it’s as if the anti-Trump resistance has started to use the same tactics as wacko wing-nut conspiracy theorists hiding in their basements wearing aluminum foil hats. We have entered an intense era of truth be damned seditious propaganda and it’s causing those that succumb to the propaganda to be irretrievably broken from reality, they are seeing blazing conspiracy conflagrations when in most cases there isn’t even the remote spark of actual truth.

      The anti-Trump resistance media has completely flushed all ethics regardless of historical journalistic norms.

  5. Inquiring Mind

    Maybe, but suppose Kurt Schlichter is right… what then, Jack? What then?

    https://townhall.com/columnists/kurtschlichter/2017/05/18/this-is-a-coup-against-our-right-to-govern-ourselves-n2328059

    At some point, we’re gonna have to pick sides.

    • I have never suggested that he wasn’t right. He is. That’s exactly what the Left is doing, and the scary thing is, I think they know it.

      • Steve-O-in-NJ

        Of course they know it, but they also believe they know best, and that last November was just the child jumping out of the playpen, who needs to be returned ASAP before he hurts himself or someone else.

    • Inquiring Mind,
      What does sedition look like? It looks exactly like what the anti-Trump resistance is doing. The anti-Trump resistance is conducting a seditious propaganda civil war! Those on the ideological left side of the political aisle that are not an active part of the resistance are not speaking out against this intentional sedition, they’re keeping their traps shut and by doing so they are condoning sedition; they are equally culpable for the consequences.

      I wonder what the resistance battle flag will look like.

  6. Chris

    Exactly. As for the last sentence, President Trump has no one to blame but himself. His own, typical, blundering, blathering ways created this atmosphere—that and “Deep State” leaks calculated to undermine him, and a news media feasting on those leaks like sharks on chum.

    It seems like what you’re really saying here is “President Trump has no one to blame but himself…and also intelligence agencies and the media.” It’s kind of like Hillary saying she takes full responsibility for failing to win the elections, but also it’s the Russians’ and Comey’s fault.

    You make this shift a lot in this post.

    What really upsets the rightish pundits, and what should trouble everyone, is that the development is a victory for the “resistance” and a news media actively trying to force a President out of office. They created the false “crisis” that in turn trapped the President—he’s not hard to trap— into creating sufficient uncertainty and distrust that the public would not accept on faith that “the Russian interference with the election” and possible involvement of the Trump campaign were being honestly and independently investigated.

    No, Trump and his staff created this uncertainty and distrust. The media merely reported on it. As they should have.

    Attorney General Sessions should not have had to recuse himself from the matter for having the exact same, open, routine meetings with the Russian ambassador that his Democratic colleagues did, but he also blundered and gave the news media a chance to make him seem suspicious, so he had no other responsible choice. This placed the matter squarely on Rosenstein’s shoulders, and his integrity was being questioned too.

    He didn’t have to recuse himself for having the exact same open routine meetings with the Russian ambassador that his Democratic colleagues did. He had to recuse himself for not telling the truth about those meetings, after several of Trump’s other staff members had already been let go for not telling the truth about their meetings with Russian officials. That’s not the media’s fault. The blame lies squarely on Sessions here.

    (Milbank also posted as fact more fake news, the now debunked news media claim that White House press secretary, Sean Spicer, was hiding in the bushes on the White House north lawn.)

    Can you link to where this was debunk? I did see the WaPo correction that he was “among” the bushes rather than in them, but that hardly seems like a debunking to me.

    The Democrats want to make the public distrustful of their President, and that’s why a Special Counsel is such a victory for their strategy for undermining democracy.

    Of course we want the public distrustful of the president. He is untrustworthy, as you know. Why on earth would you want people to trust someone who is untrustworthy? How does making the president’s lack of trustworthiness known and clear “undermine democracy?” An informed public is crucial to democracy. If Hillary–someone you also view as untrustworthy–had won, would you argue that Republicans promoting distrust of her undermined democracy?

    I think I agree with your take on Rosenstein; he did what he had to do, and no more. (Note that he did not actually recommend Comey be fired.)

    • Isaac

      “Note that he did not actually recommend Comey be fired.”

      Just because the exact words weren’t used…it’s 1000% obvious that this was his recommendation. It was everyone’s recommendation. You couldn’t read that report and possibly walk away assuming anything else.

      • To be fair, this is what is called an advocacy memo. Lawyers are asked, “I want to do this, so please prepare a memo making the argument for why it is justifiable.” It doesn’t have to be a personal recommendation, and the writer need not agree withe decision the memo supports. The torture memos are infamous examples.

    • No, he has no one to blame but himself, because his foolish and inept handling of the situation made it impossible to argue that there weren’t factors that would make the results of any investigation subject to attack.

      The fact is that he is enduring an unprecedented, disgusting, dangerous and unfair effort to make it impossible for him to govern. It would lose steam faster, however, if he wasn’t constantly shooting himself in the head and feet. If he acted Presidential, the attacks would be much harder to sustain.

      • Chris

        But (most of) the attacks are fair and ethical precisely because he does not act presidential.

        No, this does not mean every single attack is fair or ethical; but the concern over Russia is entirely a natural result of Trump and his team’s own actions and behavior regarding Russia.

  7. E2 (nee Elizabeth I)

    I welcome a special prosecutor. Even if he finds nothing to attribute to Trump, is still won’t shut the F*** up by the the Trump haters. They will never stop until another Democratic-machine robot is back in the White House. Ever. They are just plain nuts, and liars, and determined to regain power by any — and I mean any — means available to them. Jackboots and brownshirts he we come.

    • Spot on!! Except that I don’t welcome the special prosecutor. Nothing good will come of it for either side. It’s a freaking waste of time and money and takes away from the attention that should be directed to the real problems of the country.

  8. Neil Dorr

    Jack,

    You wrote a piece in 2007 regarding the Mueller/Ashcroft/Gonzaelez hospital affair, but it appears the Scoreboard has now gone completely kaput. I know some articles are archived here, but could’t find that one through searching. Any thoughts?

    • Check the “way back machine” along with other sites, they’ve been taking internet “snap shots” since the 90s… great way to go back and review text from old web pages… you may lose images and video and audio though.

  9. Under the current conditions, this appointment was definitely Responsible And Necessary.

  10. I disagree with your premise of necessity. “My decision is not a finding that crimes have been committed or that any prosecution is warranted” says it all. It will eventually be proven that no matter what the findings, which won’t come about for maybe 3-4 years or longer, the progressive left will not be dissuaded from their hatred and loathing of this President. This investigation will do absolutely nothing to bring them around to reality.

  11. I see this appointment as just playing into the corrupt hands of the Democrat Party for electioneering purposes. I am not against the appointment, but I am predisposed to be against its certain consequences. (Does that make me guilty of unethical “pre-consequentalism?”)

  12. Paul Compton

    I wonder if the Big T’s twitter thumb is as big a problem as it’s made out to be. There would be two types of people following his feed, those who are out to get him and those who want him to ‘drain the swamp’.

    The former already believe Big T is Satan incarnate anyway so nothing he says or does will improve his standing with them, or make him hate him more, and they will just become part of the background noise of the resistance to any gator hunters.

    Perhaps the fact that his tweets represent an uncensored un-spun access to the POTUS is a far bigger positive than even his most outrageous shoot from the thumb tweets. Surely most twit(erer)s must regret some of their own cringe-worthy efforts and so supporters probably give him a pass on his. Meanwhile, they actually get a direct insight into what he’s thinking, rather than what he and his spin team think will buy votes.

    It’s kind of refreshing and empowering in that sense.

  13. Alan Dershowitz disagrees that a special prosecutor is the appropriate means to discover the ‘truth’ about Russian influence in the 2016 election. He states, rather bluntly,

    “Consider the worst-case scenario that the Trump campaign worked closely with the Russians to ensure his election. It probably didn’t happen, but even if it had, there would be nothing criminal about it. It would be wrong and voters would be right to consider this and make them pay a political price. But it is not the role of the special counsel to expose wrongdoings — only to investigate and prosecute crime. And not all wrongdoing is criminal: coordination with the Russians is simply not a crime.”

    He argues for an independent Congressional inquiry.

    jvb

    Here is the link:

    http://thehill.com/blogs/pundits-blog/the-administration/334100-opinion-a-special-counsel-is-the-wrong-way-to-uncover

    • Chris

      “Consider the worst-case scenario that the Trump campaign worked closely with the Russians to ensure his election. It probably didn’t happen, but even if it had, there would be nothing criminal about it. It would be wrong and voters would be right to consider this and make them pay a political price. But it is not the role of the special counsel to expose wrongdoings — only to investigate and prosecute crime. And not all wrongdoing is criminal: coordination with the Russians is simply not a crime.”

      That’s…an interesting claim, one that Dershowitz doesn’t really support. I won’t say he’s wrong, as I jumped the gun on a claim by Michael earlier, and I don’t want to embarrass myself like that again. But can anyone explain how coordinating with a foreign power to influence an election would not be against the law?

  14. Sue Dunim

    In my naivity I welcome an independant and not obviously biased inquiry, so we can ascertain the reality. Let the cards fall as they may.

    There should certainly have been one on Fast and Furious, and it’s not too late for that even now.

  15. Chris

    Does Trump’s admission to Russian officials that he fired Comey at least in part to “take off the pressure” of the Russian investigation constitute obstruction of justice?

    I am asking in the spirit of honest inquiry; I genuinely don’t know, and will accept a “no” if accompanied with a solid argument.

    But any such argument would have to start from the premise that Trump did indeed fire Comey at least in part to take the pressure of the Russian investigation. Since that is now a fact, not just the hysterical assumption of deranged liberals.

    • No. I think the obstruction of justice statutes have been re-printed here, no? “Take the pressure off” is hopelessly ambiguous. Since the investigation will naturally go on, as Justice officials have said, what does it mean? I honestly have no idea. Trump’s communications skills are so sloppy, his filters so flawed, it could mean anything. He regards the investigation as political harassment (as do I.) Maybe the pressure is “off” because someone he doesn’t trust and thinks is inept will “take the pressure off. ” Who knows? I regard Trump’s tweets and statements like thos random sentence generators. Was this something Trump actually said, or another report from an anonymous would be saboteur? Not that it matters…

      • gosh

        If one regards Trump’s statements as random sentence generators, then there is literally nothing he could say that would rise (or sink) to the level of obstruction of justice.

        If one regards the statements of unnamed sources as those of would be saboteurs, then no other statement regarding his behavior can have anything to do with building a case for obstruction of justice, either.

        Therefore, the only acceptable evidence would be physical evidence – a signed agreement, say, between Trump and the Russian government – which of course is not going to turn up, and even if it did, if one regards the investigation as political harassment, it would be as suspect as the statements of Trump or anyone else who might know.

        The fact that this line of reasoning reaches identical conclusions as one produced by a hopelessly biased Trump defender is, of course, a startling coincidence.

        • No, as has been detailed here before, and recently explained by unbiased legal authorities, a mere statement of a desire, a component of a complex decision, or a characterization of a legal act is not sufficient evidence to support a valid charge of obstruction. And since you enter my blog falsely accusing me of being “hopelessly biased” because nothing else in your argument holds water or demonstrates any understanding of the law or the issue, either your next post begins with ‘I apologize”, or it gets spammed as soon as I see it, and you never get a comment here again.

          See, to obstruct justice (like engineering a cover-up, having someone hide a blue dress, lying to a grand jury, dictating a letter to get a damaging witness to sign, lying to a grand jury—Bill Clinton can explain what it entails—you actually have to do something that obstructs justice or that possibly could.

          Saying something that might mean that you wanted to obstruct justice with an act that couldn’t possibly accomplish that is called “being stupid,”which is NOT a crime, which you should understand, or you would be in jail. Nor is it an impeachable offense.

          But by all means continue making assertive insulting ignorant interpretations of what you know nothing about. You just can’t do it here. Try the Daily Kos.

      • Chris

        Thanks for the response.

        You’re right that the investigation will of course go on–did Trump know that, though? A straightforward reading of that Trump quote would indicate he did not. But as you say, many things that Trump says do not make sense.

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