Mueller proved that almost immediately when he chose his team—a disconcertingly stacked group of Clinton supporters, some of whom had also been central to the FBI and DOJ’s poor decision making in 2016. As even the Washington Post would acknowledge in an article in March 2018, thirteen of the seventeen members of Mueller’s team had previously registered as Democrats. Nine of them had “made political donations to Democrats,” and six had donated directly to Hillary Clinton. Mueller’s deputy, Andrew Weissmann—dubbed his “pit bull”—had attended Clinton’s election night party in 2016. Weissmann, who’d been a top DOJ lawyer, also had clearly been one of those aware of the dossier. Ohr testified that Weissmann was among those he warned in the summer of 2016 of Steele’s bias against Trump.
Most of Mueller’s team was, in fact, made up of Justice Department veterans who lacked the critical distance to conduct a fair probe—Zainab Ahmad, Brandon Van Grack, Greg Andres, Andrew Goldstein, to name a few. Elizabeth Prelogar had clerked for two of the Supreme Court’s more liberal justices—Ruth Bader Ginsburg and Elena Kagan. And Mueller brought in Jeannie Rhee, who’d served in Obama’s Office of Legal Counsel.
The special counsel would also, infamously, hire Peter Strzok, and one of Mueller’s worst decisions was to do nothing more than remove him from the team when he found out about Strzok’s partisan texts. Getting rid of Strzok was not a fix. The revelation of bias by Strzok and others, as the DOJ inspector general would later explain, “cast a cloud over the investigations to which these employees were assigned.” And that cloud transferred to the Mueller probe, injecting into it what the legal world calls the “fruit of the poisonous tree.”
As lawyers David Rivkin and Elizabeth Price Foley would write in the WSJ: “If [the Trump-Russia collusion investigation] was politically motivated, then its culmination, the appointment of a special counsel, inherited the taint. All special-counsel activities—investigations, plea deals, subpoenas, reports, indictment and convictions—are fruit of a poisonous tree, byproducts of a violation of due process. That Mr. Mueller and his staff had nothing to do with [that investigation’s origin] offers no cure.” Due process, they explained, is most certainly violated by any “prosecutorial efforts that appear, under the totality of circumstances, to be motivated by corruption, bias or entrapment.” In short, when Mueller discovered those Strzok texts, the answer wasn’t to fire him; it was to pause the probe until someone analyzed the FBI’s behavior in 2016. He didn’t. Instead, he withheld the information about Strzok’s partisan bias, and his removal, from Congress.
Mueller’s unsuitability grew startlingly clear in October 2017, when Nunes confirmed that the Clinton campaign and DNC had paid for the dossier. The FBI had been caught in the act of pursuing evidence against Trump that had been supplied by his presidential rival. Any fair investigation would obviously need to dig into the FBI’s actions, and as former FBI head, Mueller had a blatant conflict of interest. The WSJ editorial page called for Mueller to resign. Our editorial was met with hysterical condemnation by Democrats and the media, suggesting we’d joined a campaign to cover up Trump’s “crimes.” This was ridiculous, given we’d called for the probe to go on—just under the leadership of someone more suited to step back and look at the totality of 2016’s events. But the haters had placed their own bet on Mueller; they also knew his history and ties, and figured he’d take it to Trump and ignore the FBI’s role. They continued to laud Mueller as a “straight arrow,” but his report would show they’d made a wise bet: Mueller began from the premise that Comey and his FBI could do no wrong.
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From his appointment in May 2017 to October of that year, Mueller’s probe was a locked box, leading to wild press speculation. But this was nothing compared to the media frenzy that accompanied his first indictments.
Mueller’s prosecutions fell into three categories. The first were those charges that had absolutely nothing to do with his remit. The special counsel justified these on the grounds that he had a duty to pursue any crime he came across. Yet as will be noted later, Mueller was more than happy to close his eyes to crimes squarely in front of him. The real goal of these prosecutions was to squeeze his targets, to threaten them with a lifetime in jail if they did not produce “the goods” on the Trump team.
A case study was Mueller’s prosecution of Paul Manafort. Prior to joining the Trump campaign team in the spring of 2016, Manafort spent decades as the classic Beltway bandit—running a lucrative lobbying business. Mueller on October 30 would indict Manafort and his business partner Rick Gates on twelve counts including money laundering, failure to report foreign banking accounts, and conspiracy against the United States. The charges related entirely to work Manafort had done for pro-Russian Ukrainian politicians long before he’d joined the Trump campaign.
Unfortunately for Manafort and Gates, they had no “goods” to give Mueller—as we now know. Yet, to increase the pressure, Mueller in February 2018 filed a further thirty-two financial charges against the two men. Gates crumpled the next day, pleading guilty to conspiracy and lying to investigators. Manafort continued to fight the charges, for which he was punished by Mueller’s team by being kept in solitary confinement for twenty-three hours a day. It was extraordinarily harsh treatment for a man who had been charged with nonviolent offenses.
Mueller’s fervor to get his targets held severe consequences for more than Manafort; it was corrosive to the justice system. Among other things, the special counsel charged Manafort with violating the Foreign Agents Registration Act. FARA is a dusty 1938 statute that requires “agents” of a foreign government or principals to disclose their activities. In fifty years through 2016, the Justice Department brought only seven criminal FARA cases and won three convictions. Two were dismissed and two others pleaded to non-FARA charges. Beltway operators had without doubt been playing fast and loose with the law, but that was in part because the DOJ’s infrequent enforcement had led to confusion about when FARA applied. DOJ had never bothered to explain publicly—either through regulations or guidance—what conduct is or isn’t FARA-compliant. And the entire Washington lobbying world had long operated with the understanding that FARA violations would be dealt with administratively. When the DOJ occasionally called someone out for FARA, the parties sat down to work out a settlement—usually retroactive registration and a fine.
Mueller instead resurrected FARA from the near dead to go after people with the threat of jail time. The willful failure to register as an agent under FARA can result in five years in federal prison. Mueller also threatened to file FARA charges against former National Security Advisor Flynn to pressure him to cooperate—even though, again, Flynn had nothing to tell. Mueller would ultimately bring seven FARA cases, rivaling the total number brought by the DOJ in the prior fifty years. Nearly all of these were done in the context of plea deals, meaning Mueller did not have to test them in court.
Good-government types would laud Mueller for resurrecting a law against “shadowy” lobbying. But justice is never served by arbitrary or surprise shifts in the prosecutorial system. The most unjust law is one that is enforced only when it serves the purpose of catching the unwary. Mueller exploited the unsuspecting for his own ends. And his untoward tactics would end up boomeranging on the very Democrats who’d celebrated him. In an attempt to look more evenhanded, Mueller would at the very end outsource a FARA case against Gregory Craig, a prominent Democrat who’d served as White House counsel for Obama but who’d done Ukrainian lobbying work alongside Manafort.
Mueller razed another bedrock principle of our justice system in his pursuit of Michael Cohen, Trump’s personal lawyer. In April 2018, the FBI raided Cohen’s office, home, and hotel room, searching his files and riding roughshod over attorney-client privilege. That privilege has its roots in sixteenth-century English law, and was designed to encourage full communications between clients and lawyers, without fear that the government would intrude. There is a limit—what’s called the crime-fraud exception—concer
ning communications that are used to further a crime.
But the Cohen case was messy, and his records didn’t necessarily fall into clear crime-fraud exception. What’s worse, the raiders were pushing this envelope in aid of an uncertain “crime.” They were in part searching for evidence about a Cohen payment to adult film star Stormy Daniels, said to have had an affair with Trump. Prosecutors would go on to claim that Cohen, in paying this “hush money,” had criminally broken federal campaign finance law by providing an undisclosed campaign contribution. This was an extraordinary stretch of campaign finance law. About 96 percent of all campaign finance violations are dealt with in civil suits. And prosecutors in the past had failed to advance the legal claim they were now pursuing against Cohen. The DOJ in 2012 lost in court a similar case against Democrat John Edwards for payments made by campaign donors to his mistress.
So yes, the crime-fraud exception has limits. But as former Attorney General Michael Mukasey asked in the WSJ, was it worth “testing” those limits, and undermining that principle, for a “campaign-finance” violation? The press would spend months dredging up legal experts to make the case that New York prosecutors and Mueller had done everything by the book—nothing to see here. But Mueller had sent the message that nothing is sacred—not even your conversations with your lawyer. If a special counsel wants it, he will get it. That has already had a chilling effect in law offices across the country.
Cohen and Gates ultimately succumbed to plea deals. Manafort fought his charges, but after a Virginia jury found him guilty on eight counts in 2018, he agreed to cooperate with Mueller’s probe. It’s important that we respect jury verdicts, and Manafort may never leave prison for the crimes of which he was duly convicted. At the same time, it’s unlikely any of those men would have faced legal peril if not for their simple proximity to the man the haters truly wanted: Trump. How many Americans in the future will blanch from serving under or alongside controversial politicians, for fear they may be ensnared in a politically driven prosecution? Post-Mueller, that’s a legitimate question.
The argument that Mueller was obliged to pursue any crimes he came upon is also undercut by his decision to ignore wrongdoers—when it suited him. The special counsel never brought a single prosecution for leaking, even though the leak of classified Flynn information remains, to this day, the only known “crime” of the time period Mueller was asked to investigate. Congressional Republicans would later send several criminal referrals to the Department of Justice against people it claimed had lied in the course of their investigation—including Steele. Mueller would never touch one of them.
New York prosecutors, working alongside Mueller, brought their dubious campaign finance charges against Cohen. Yet nobody in the Clinton orbit has faced prosecution for hiding from the public who ultimately paid for the dossier. Campaigns are supposed to list their “vendors,” but the Clinton campaign and the DNC never listed Fusion GPS. The payment to Fusion was instead through a law firm cutout, Perkins Coie. Somebody was ignoring the clear language of campaign finance statutes.
Mueller revived FARA but largely used it only against those he wanted to put in a jam. Senator Chuck Grassley has suggested Fusion GPS was required to register under FARA both for its contribution to the lobby effort against a U.S. sanctions law (the Magnitsky Act) and for its work on the dossier. Fusion claims it had no such obligation. It is an untested question, though undoubtedly one Mueller would have brushed aside if he’d been treating Fusion as he treated Flynn or Manafort.
All of this meanwhile followed rival FBI investigations into presidential candidates, in which the bureau treated one side (Clinton) with kid gloves and the other (Trump) with an iron fist. In announcing Cohen’s plea deal, Deputy U.S. Attorney Robert Khuzami waxed lyrical: “His day of reckoning serves as a reminder that we are a nation of laws, with one set of rules that applies equally to everyone.”
The problem is that a significant portion of America no longer believes that.
* * *
A second category of Mueller prosecutions involved process crimes—individuals who were sentenced only because of actions they took while dealing with Mueller or federal officials. These included Papadopoulos, Alex Van der Zwann, and Flynn—all accused of making false statements to federal investigators.
The “false statements” charge has always been the last refuge of prosecutorial scoundrels. Comey used it on more than one occasion, to jail people he could not otherwise find guilty of a crime. And that’s what is notable about Mueller’s “lying” charges: They all came at the point at which it was clear to Mueller that he wasn’t going to find Russian collusion. The “false statements” cases were his consolation prizes, his way of looking as if he had done “something.”
And even many of these “lying” cases were flimsy. The Papadopoulos plea deal, for instance, shows a special counsel team straining to make the case against the former Trump aide. Papadopoulous’s April conversation with Mifsud was supposed to be what inspired this entire FBI probe. But it took the Bureau nine months to formally interview Papadopoulos. The former aide sat willingly and would later testify that he thought he was there to assist the FBI. The FBI would instead turn around and charge him with lying about whether he was officially part of the Trump campaign when he had his conversation with Mifsud. The Mueller team would labor to explain how these “lies” had materially impeded their investigation, in particular their ability to fully question Mifsud when he was in the country in February 2017.
Papadopoulos to this day insists he did not intentionally lie to the FBI—that he simply misremembered dates—and that he was pressured into a plea deal. And the claim that confusion over those dates hurt the FBI’s investigation is nonsensical. The FBI had known since at least July about the Mifsud communication. Mifsud in February talked to the FBI, and according to The Hill columnist John Solomon, then followed up by sending the FBI an e-mail. The FBI was in contact with Mifsud! It could have gone back to clarify issues. Papadopoulos was a minor figure in the Trump campaign, caught up in a sensationalized story that we now know was irrelevant. So why would prosecutors work so, so hard to get jail time? Because they needed a scalp.
More disturbing was Mueller’s takedown of Flynn. The FBI had set up the Trump national security advisor—coaxing him into a meeting, dissuading him from using a lawyer, and then asking him about a conversation for which it already had a direct transcript. The interviewing agents also reported that they did not believe Flynn was lying to them. Mueller had all these documents; he should have been appalled.
Instead, he held out the “lying” charge, as well as a possible FARA prosecution, as he squeezed Flynn for information. And Mueller’s team threatened a FARA charge against Flynn’s son, Michael G. Flynn, who had lobbied with his father. The former lieutenant general had spent most of his adult life defending his country; he was not a rich man. As the investigation dragged on, Flynn’s legal bills reached crippling heights, and he had to sell his home. He could have fought the charges, but with bankruptcy looming and with the FBI threatening a family member, he pleaded guilty to one count of lying. Flynn’s defense team would give the court dozens of testimonials from military associates and from friends that attested to a lifetime of public service and a sterling character. Mueller’s tactics against Flynn represented the worst sort of prosecutorial abuse.
DOJ “false statements” charges are nothing new; Mueller didn’t break ground here. What he did do is pursue highly questionable ones, as part of the biggest-profile investigation in decades. He reminded the entire nation that federal prosecutors are these days bullies, more interested in landing convictions than they are in pursuing their other duty of protecting the innocent. His tactics further undermined trust in the DOJ and the FBI.
* * *
The final group of Mueller charges: the only ones he was actually asked to pursue.
In February 2018, Mueller indicted a Russian troll farm (the Internet Research Agency), two shell companies, and
thirteen Russian nationals on charges that ranged from conspiracy to defraud the United States to wire fraud to identity theft. The indicted are all foreign nationals and all live outside the United States, making it unlikely any will ever face trial. Mueller gets credit for exposing the methods Russians used to try to destabilize the U.S. political system, but this was also work that could have been done by the regular FBI.
When the DOJ announced the indictments, Rosenstein went out of his way to make clear they did not contain any allegation that “any American had any knowledge” of the Russian crimes. Mueller would nonetheless drag his probe out another year before presenting that conclusion in his report.
Throughout that year, Mueller would engage in a further dubious tactic: highly misleading and, at times, partisan court filings. The special counsel couldn’t avoid presenting information as part of his plea deals and indictments. But it’s one thing to present facts and quite another to present innuendo or hyped scenarios. Mueller with each filing fanned the Russia-collusion narrative—even in the absence of any proof of such a scandal.
His Papadopoulos plea deal stressed heavily that the young aide had engaged with “foreign nationals whom he understood to have close connections with senior Russian government officials.” Such engagement is in no way a crime, and it is also totally irrelevant to the actual charge against Papadopoulos: lying to the FBI. The wording was designed to suggest the Russians might have been attempting to supply the Trump campaign with opposition research against Hillary—even though the document provides no proof this ever happened (because there never was any). A footnote in the plea deal similarly said that e-mails showed a Trump campaign official suggested “low level” staff should go to Russia. Mueller failed to include numerous other e-mails showing that the campaign was, in fact, directing people to turn down Russian invitations.
Resistance (At All Costs) Page 13
