Blog No. 164. The Reckless Attacks on Robert Mueller

On Sunday, President Trump denied that he intended to fire Special Counsel Robert Mueller. His denial came in the wake of reports by several media outlets, the day before, of a “rumor” on Capitol Hill, that Trump would fire Mueller after Congress had left town but before Christmas. A rumor is just a rumor and this one may, like many, prove to have had no basis in reality. On the other hand, given Trump’s extensive history of flip-flops on matters of policy and personnel, Mr. Mueller can hardly feel secure. What is not rumor but observable fact, is the growing enthusiasm among many Republicans for attempting to besmirch Mueller and the investigation he is leading. This enthusiasm was most recently on shameless display during the testimony last week of Deputy Attorney General Rod Rosenstein before the House Judiciary Committee. It is not clear whether the attacks on Mueller are intended to pave the way for a dismissal of Mueller or merely to provide grounds for discrediting any findings that are adverse to Trump. Either way, they are seriously misguided.

The general complaint of Republicans is that various members of Mueller’s staff are biased against Trump. For example, Rep. Steve Chabot (R-Ohio) asked:

“How with a straight face can you say this group of Democratic partisans is unbiased and will give President Trump a fair shake?”

Rosenstein replied:

Congressman, I think it’s important to recognize that when we talk about political affiliation…. The issue of bias is something different.  “I have discussed this with Director Mueller. … We recognize we have employees with political opinions. And it’s our responsibility to make sure those opinions do not influence their actions. And so, I believe that Director Mueller understands that and he is running that office appropriately.”

It is neither surprising nor unusual for an independent prosecutor or special counsel to have a staff that includes many lawyers whose politics are unsympathetic to the subjects of investigation and potential prosecution. Indeed, the appointment of an independent prosecutor or special counsel identified with an opposing party is often seen as assurance that he will carry out his duties in a robust manner. In the Watergate investigation, for example, Attorney General Elliott Richardson appointed as Special Prosecutor, Archibald Cox, who had been Solicitor General in the Kennedy Administration. In his memoir, Nixon later wrote “If Richardson searched specifically for the man whom I least trusted, he could hardly have done better.” Richardson, on the other hand, believed that if Cox cleared Nixon, his finding would be thoroughly credible. In the White House Counsel’s office, there was little doubt that the affiliations and sympathies of the staff Cox assembled lay with the Democratic Party. (The only notable exception was Republican Phillip Lacovara who, ironically enough, would later argue that a sitting president could be not only  impeached but indicted.)

Kenneth Starr, the court-appointed Independent Counsel who headed the investigation of President Clinton, had been Solicitor General in the administration of President George H.W. Bush. He replaced Robert Fiske, a distinguished Republican lawyer in private practice who was said to have a conflict simply because he had been appointed by Clinton’s Attorney General, Janet Reno. While I am not aware of any survey of the political affiliations of Starr’s staff, it is unlikely that it included many who had voted for Clinton.

In the present case, President Trump has been spared the discomfort of an investigation headed by a Special Counsel identified with the opposing political party. Although Robert Mueller has served both Democratic and Republican Presidents, he is a long-standing and current Republican. Moreover, he was appointed, and is supervised by, the Deputy Attorney General, Rod Rosenstein, also an identifiable Republican. Moreover, Rosenstein was not only appointed by Trump but personally assisted the President by providing a memorandum that that was used to justify Trump’s firing of the FBI Director, James Comey. What then is there to complain about?

Mueller’s critics have focused the greatest amount of attention on text messages exchanged between Peter Strzok, a senior FBI investigator and his mistress, Lisa Page, a senior Justice Department lawyer. The messages were sent during the 2016 campaign and contained passages that were bluntly disparaging of Trump and favorable to Clinton. As soon as Mueller became aware of the messages in August of 2017, Strzok was dismissed from his staff. Page had also served on Mueller’s staff but had left before the messages became an issue. There is no basis for concluding that the political views of Strzok and Page had any impact on Mueller’s investigation during their brief tenure on his team.  Indeed, Mueller’s prompt action  should have been reassuring to his critics. The messages may raise legitimate questions about Strzok’s role in the investigation of Clinton’s emails, and in particular his contribution to the drafting of the statement by James Comey that announced the conclusion of the FBI’s investigation, but that is another matter. In terms of Mueller’s investigation, the to-do over l’affaire Strzok is clearly, in Harry Truman’s memorable term, a red herring, intended to distract from the serious work of the investigation.

Criticism has also been directed at another staff member, Andrew Weissmann, whose “sins” consist of having attended Hillary Clinton’s election night party and having written to congratulate Sally Yates when, as acting attorney general, she refused to carry out Trump’s initial travel ban. Neither activity was improper and Weissmann’s critics might pause to note that Yates’s position was vindicated by the courts. It has also been complained that six of the fifteen lawyers on Mueller’s staff had made political contributions to Hillary Clinton. Should Mueller have barred their employment on his staff on that basis? To do so would have violated Justice Department regulations that prohibit taking political affiliation or political contributions into account in hiring decisions.

Senator John Cornyn tweeted on Saturday that “Mueller needs to clean house of partisans,” and the following day he asserted on ABC that Mueller should “eliminat[e] agents who have taken positions either in text messages or through their political activity that undermine the integrity of the results of the investigation.” When the interviewer, George Stephanopolous, pointed out that the authors of questionable text messages were no longer on Mueller’s staff, Cornyn made a vague reference to “others” and insisted that Mueller “needs to make sure he vets that team.” The kind of vetting that Cornyn has in mind, a search for political eunuchs, is not only uncalled for but would clearly conflict with Justice Department regulations. Cornyn did say that he respected Mueller and that firing Mueller would be a mistake, but he had to know that he had added a bit of fuel to the fire.

The most recent complaint against Mueller came not from the White House or the President’s counsel, but from the Presidential Transition Team (PTT). The complaint concerns PTT emails provided to the Special Counsel by the General Services Administration (GSA). The emails were on computers and other devices owned by the GSA that had been made available to the PTT and were subsequently returned to the GSA. The PTT’s complaint was not directed to the GSA, Mueller, Deputy Attorney General Rosenstein or any court, but set out in a letter by PTT’s lawyer, Kory Langhofer, to two congressional committees.

When asked about the complaint, Trump appeared to criticize Mueller, telling reporters that the situation was “not looking good,” and adding, “It’s quite sad to see that. My people were very upset about it.” However, the Special Counsel’s office has rejected the claim that emails were obtained improperly, the GSA itself, an agency of the Trump administration, has denied that the PTT has any grounds for complaint, and the New York Times cited unidentified legal experts as saying that “there was no indication that Mr. Mueller, who has wide power to obtain documents through written requests, subpoenas and search warrants, improperly obtained the transition emails.”  While there may be further developments, it seems unlikely that this dispute will become a legally significant ingredient in the portfolio of grievances against Mueller.

Overall, Republican criticism of Mueller and the Mueller investigation is unlikely to have much impact unless it convinces Trump that he could fire Mueller and get away with it. Whether he could get away with it is a matter of speculation. Such an action would no doubt give rise to widespread outrage and calls for impeachment, but if the Trump base remained impervious to reason, it might not matter, at least in the short run. In the longer run, it might prove to have signaled the beginning of the end of the Republican Party as a major political institution, if that milestone has not already been passed.