Why Mueller should not be special counsel

I believe any reasonable observer, if he considers the matter independently of whose ox is being gored, would agree that it is problematic to have a special counsel with a broad mandate to investigate, unbound by some of the normal constraints of a prosecutor, a campaign and a presidency. Reasonable observers will disagree about the extent of the danger, and about the countervailing value of having such a prosecutor in certain circumstances.

However, it seems undeniable that even a non-conflicted, non-partisan, non-abusive special counsel can severely hamper the ability of the president to perform the job the American people elected him to do. In an extreme case, such a prosecutor can destroy a presidency for no good reason.

That’s why, if we are to have a special counsel, we must be satisfied that he is non-conflicted, non-partisan, and non-abusive.

Does Robert Mueller satisfy all three of these criteria? Does he satisfy any of them?

Given his friendship and ties with James Comey, there is a good case that Mueller is conflicted. Comey is at the center of key aspects of the investigation — alleged collusion and, especially, alleged obstruction of justice. And it was Comey whose manipulation and leaking resulted, as intended, in the appointment of a special counsel.

Mueller has a reputation (deserved or not, I don’t know) for being non-partisan. But the same was true of Mueller’s friend and admirer James Comey. And we all understand that being a Republican is not inconsistent with hating Donald Trump.

It would, of course, be unfair to suggest on this basis alone that Mueller is anti-Trump. But if we examine the people Mueller has hired to work on this investigation, concerns of partisanship come to the fore. It is well-documented that Mueller has assembled a staff full of partisan Democrats, many of whom contributed money to Trump’s opponent in the very election that gave rise to the investigation.

If, as I believe, Mueller and his team fail the non-conficted and non-partisan tests, then he ought not have the power that has been invested in him. I should also note that when Mueller was given this power, it wasn’t known that he would staff up with anti-Trump Democrats; nor was the full extent of his conflict understood.

Accordingly, I think Mueller deserves to be sacked whether or not he acted abusively so far. Has he? I don’t know enough facts or enough about criminal prosecutions to answer.

I do know that leaking news of an impending grand jury indictment is abusive and, as I understand it, illegal. But I don’t know whether Mueller’s team is responsible for the leaking that has occurred so far, including this weekend’s leak that an indictment was about to come down.

Trey Gowdy, a Republican and former prosecutor, has encouraged Republicans to “give [Mueller] a chance to do his job.” He says, “the result will be known by the facts.”

I respect Gowdy, but there are problems with his statement. So far Mueller has had not just a chance, but free rein to do his job. We already know some of the results — (1) a free-wheeling investigation that appears to go well beyond the issue of Russian interference in the 2016 election and alleged collusion by the Trump campaign and (2) a staff full of partisan Democrats.

By the time Mueller and his team of anti-Trumpers reach their “result,” they may have severely impaired this presidency for no good reason.

What can be done to counter Mueller? The first step is to criticize his investigation. Trump did so this weekend in a series of tweets. Other Republicans went on the Sunday shows to raise questions about Team Mueller.

I doubt these efforts will be effective except, perhaps, for the purpose of laying the groundwork for measures that will actually block Mueller, if things come to that. These measures aren’t hard to identify, but discussing them is beyond the scope of this post.


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