As special counsel Robert Mueller's investigation moves closer to Donald Trump, there is a concerted effort by the president's apologists to shut it down. Commentators on Fox News and Republican Congress members are attacking Mueller, causing speculation that the special counsel's days are numbered.
Since his investigation began in May, Mueller has already obtained two indictments and two guilty pleas. Most recently, former Trump national security adviser Michael Flynn pleaded guilty to one count of lying to the FBI. Although he could have been charged with more serious crimes, Flynn secured the deal by promising to cooperate with prosecutors and provide evidence against other, as yet unnamed, individuals. Flynn's guilty plea brings Mueller's investigation into the White House.
The president himself has cause for concern, particularly since Mueller subpoenaed financial records from Deutsche Bank, one of the largest lenders to Trump companies. "Since 1998, the bank has led or participated in loans of at least $2.5 billion to companies affiliated with Mr. Trump," the Wall Street Journal reported. That figure doesn't count "at least another $1 billion more in loan commitments that Deutsche Bank made to Trump-affiliated entities."
Mueller was appointed by Deputy Attorney General (AG) Rod Rosenstein after AG Jeff Sessions recused himself from the Russia investigation. Rosenstein authorized Mueller to investigate "any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump" as well as "any matters that arose or may arise directly from the investigation."
In testimony before the House Judiciary Committee last week, Rosenstein expressed confidence in Mueller, saying there was no good cause to fire the special counsel. Rosenstein testified:
“Based on what I know, I believe Director Mueller is appropriately remaining in his scope and conducting himself appropriately, and in the event there is any credible allegation of misconduct by anybody on his staff, that he is taking appropriate action.”
Rosenstein was alluding to a recent GOP complaint against Mueller. FBI agent Peter Strzok, a former member of Mueller's team, sent anti-Trump messages to his girlfriend during the presidential campaign. When the messages were discovered, Mueller removed Strzok from the investigation. Nevertheless, Trump adviser Kellyanne Conway declared that Strzok's inclusion on the Mueller team was evidence that "the fix was in against Donald Trump from the beginning."
Mueller is also being attacked for obtaining "many tens of thousands" of emails, including messages from Trump adviser and son-in-law Jared Kushner, from the General Services Administration (GSA), a government agency that hosted the email system for the presidential transition. Kory Langhofer, counsel for the transition team, wrote a letter to congressional committees complaining that the provision and use of the emails may violate privilege rules and the Fourth Amendment.
But Peter Carr, a spokesperson for Mueller's office, told The Hill, "When we have obtained emails in the course of our ongoing criminal investigation, we have secured either the account owner's consent or appropriate criminal process."
GSA deputy counsel Lenny Lowentritt said in an interview with BuzzFeed that the Trump transition team was told that any material "would not be held back in any law enforcement" situation. "Therefore," he said, "no expectation of privacy can be assumed." Norman Eisen, deputy general counsel for Obama's transition team, agrees. He tweeted, "I warned everyone: there is NO expectation of privacy in your transition emails."
In order to run afoul of the Fourth Amendment, there must be a reasonable expectation of privacy in the documents obtained.
Indeed, if Langhofer felt his legal arguments had merit, he would appeal to a judge, instead of simply writing to Congress.
The talking heads at Fox News are also fanning the anti-Mueller flames. This is particularly disturbing because Trump, whose favorite television show is "Fox & Friends," parrots much of what he sees and hears during his reported four to eight hours of daily TV watching. (Trump denied he watches that much television, also tweeting that he seldom watches CNN or MSNBC.)
Sean Hannity called the special counsel "the head of the snake" and "a disgrace to the American justice system." Greg Jarrett stated, "I think we now know that the Mueller investigation is illegitimate and corrupt." Laura Ingraham declared, "What a total travesty, they should all step aside ... including Bob Mueller." Jeanine Pirro said, "[The FBI and the Justice Department need] to be cleansed of individuals who should not just be fired, but who need to be taken out in handcuffs."
"The House Judiciary Committee's grilling of Rod Rosenstein this week also revealed a near-universal Republican consensus that the investigation is rigged," Andrew Sullivan wrote in New York Magazine.
Two Florida GOP congressmen, who flew with Trump on Air Force One to a Roy Moore rally, are gunning for Mueller. Rep. Matt Gaetz said the United States is "at risk of a coup d'état" by Mueller. Gaetz introduced a resolution calling for Mueller's firing. And Rep. Ron DeSantis is sponsoring legislation to terminate Mueller's funding.
In response to a Washington Post tweet asking whether he would accept Mueller's findings as legitimate, Senate Majority Whip John Cornyn (R-Texas) responded, "Makes sense to see what they are first." Cornyn, who sang Mueller's praises when the latter was appointed special counsel, is now suggesting Mueller's findings would be "legitimate" only if Republicans liked them.
"Mueller poses an existential threat to the Trump presidency," said Chris Ruddy, CEO of Newsmax Media and a friend of the president. The editorial board of the Wall Street Journal concluded, "Mr. Mueller is too conflicted to investigate the FBI and should step down in favor of someone more credible."
The GOP effort to discredit Mueller seems to be a preemptive strike to provide political cover for his firing. Republicans apparently wish to neutralize negative fallout from Mueller's dismissal before the 2018 midterm elections.
In the words of Sullivan,
“Republican tribalism demands that the Mueller investigation be aggressively smeared in advance, its findings preemptively discredited, and its lawyers smeared for political loyalties, even when there is no evidence that this is affecting the special counsel's work.”
Benjamin Wittes at the blog Lawfare is concerned that House Republicans "are braying for actions inimical to the very idea of independent law enforcement," adding, "They are doing it about someone, Mueller, with whom they have long experience and about whom they know their essential claims to be false."
The assault on Mueller is "unprecedented," according to Randall D. Eliason, a Democrat who worked in the US Attorney's Office during the Clinton administration and participated in the successful corruption prosecution of Illinois Democratic Rep. Dan Rostenkowski.
Eliason wrote in The Washington Post, "for the most part, the attacks are not based on anything Mueller has actually done. His investigation and the criminal charges he has brought so far appear solid and do not suggest any partisan bias." Eliason explained, "critics have seized on issues such as an FBI official who sent anti-Trump text messages, even though the official was booted off the Mueller team this past summer once the texts were revealed."
Rep. Jerrold Nadler (D-New York), ranking member of the Judiciary Committee, said, "I understand the instinct to want to give cover to the president," but, "I am fearful that the majority's effort to turn the tables on the special counsel will get louder and more frantic as the walls continue to close in around the president."
The GOP is moving toward ending Mueller's investigation "aggressively and soon," Rep. Adam Schiff (D-California) tweeted. "I'm increasingly worried Republicans will shut down the House Intelligence Committee investigation at the end of [December]." He pointed to the refusal of the committee's GOP leadership to contact witnesses and request documents the Democrats have proposed. "It appears Republicans want to conduct just enough interviews to give the impression of a serious investigation," he tweeted. Schiff also noted that Republicans have scheduled no witnesses to testify in 2018.
In another tweet, Schiff wrote, "By shutting down the congressional investigations when they continue to discover new and important evidence, the White House can exert tremendous pressure to end or curtail Mueller's investigation or cast doubt on it. We cannot let that happen."
CNN reports that White House counsel Ty Cobb promised Trump that Mueller's investigation will wrap up early next year. Trump is convinced that Mueller will write a letter exonerating him. That is highly unlikely. Trump's attorneys are scheduled to meet with Mueller this week, which should provide more clarity about the investigation.
On Sunday, Trump denied he intended to fire Mueller, stating, "No -- no, I'm not," when reporters asked him if he was thinking of dismissing the special counsel. Yet, as it becomes clear to Trump that he will likely not be exonerated any time soon, he will probably order Rosenstein to fire Mueller. If Rosenstein refuses, Trump can fire him. It would then fall to Assistant AG Rachel Brand, whom Trump appointed in May, to dismiss Mueller. That would reprise the "Saturday Night Massacre" during the Watergate scandal, when Richard Nixon fired AG Elliot Richardson who refused to fire special prosecutor Archibald Cox.
It is unlikely that Trump will allow Mueller to proceed as the investigation moves inexorably in the direction of the president.
Copyright, Truthout. Reprinted with permission.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers, and a member of Jewish Voice for Peace. The second, updated edition of her book, Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues, was published in November.