President Trump is now in a death struggle with Robert Mueller and James Comey. That’s the conclusion I draw from former Assistant United States Attorney Andrew McCarthy’s gimlet-eyed American Greatness column “Mueller’s empire.” Andy’s column makes several important points on which I have slightly expanded:
• Mueller’s appointment as Special Counsel by Deputy Attorney General Rod Rosenstein fundamentally violates the applicable regulation. The regulation requires that the Attorney General or the Acting Attorney General determine “that criminal investigation of a person or matter is warranted…”
• Rosenstein’s order appointing Mueller is posted online here. In his announcement of Mueller’s appointment Rosenstein stated: “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.”
• Nota bene (this is still Rosenstein speaking): “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.”
• McCarthy explains: “The way this is supposed to work is: the Justice Department first identifies a likely crime, and then assigns a prosecutor to investigate it. Here, by contrast, there are no parameters imposed on the special counsel’s jurisdiction.”
• Therefore: “Mueller’s probe is the functional equivalent of a general warrant: a boundless writ to search for incriminating evidence. It is the very evil the Fourth Amendment was adopted to forbid: a scorch-the-earth investigation in the absence of probable cause that a crime has been committed.”
• Mueller’s team includes 14 lawyers and counting. There are “several more in the pipeline.”
• A funny thing about these lawyers. They “overwhelmingly, are Democrats. Powerline’s Paul Mirengoff and the Daily Caller’s Chuck Ross have been tracking it: Mueller’s staffers contribute to Trump’s political opponents, some heavily. The latest Democratic talking-point about this unseemly appearance is that hiring regulations forbid an inquiry into an applicant’s political affiliation. That’s laughable. These are lawyers Mueller has recruited. They are not ‘applicants.’ We’re talking about top-shelf legal talent, accomplished professionals who have jumped at the chance of a gig they do not need but, clearly, want.”
• Mueller is drawing on a limitless budget to conduct an investigation without boundaries by lawyers hostile to the president.
• McCarthy draws on his own experience prosecuting complex cases to ask two questions: “Why does special counsel Mueller need 14 lawyers (and more coming) for a counterintelligence investigation, as to which the intelligence professionals—agents, not lawyers—have found no ‘collusion with Russia’ evidence after over a year of hard work? What will those lawyers be doing with no limits on their jurisdiction, with nothing but all the time and funding they need to examine one target, Donald Trump?”
One reads McCarthy’s column with a deep sense of foreboding. To understand the legal component of Trump’s ordeal — to understand the nature of the train that is coming down the tracks toward Trump — McCarthy’s column is mandatory reading.