National Review Online
Thursday, May 18, 2017
The Trump-Russia saga has entered its special-counsel
phase.
This is strange, given that a special prosecutor is
typically reserved for when a crime has been alleged, and not only has no
serious penal-law violation been credibly alleged against Donald Trump or any
of his associates, but, as we have repeatedly noted, the FBI was engaged in a
counterintelligence, not a criminal, investigation as it relates to Russia. A
more suitable approach would have been an independent commission, like the one established
to investigate the September 11 attacks.
But Trump’s ham-handed firing of FBI director James
Comey, the White House’s misleading account of how and why Comey was ousted,
and news that Trump personally asked Comey to drop the Flynn probe created
enough of a cloud around the FBI investigation that deputy attorney general Rod
Rosenstein felt compelled to act. If Trump had intended to create the
conditions for the appointment of a special counsel, he wouldn’t have acted any
differently.
The appointment of Mueller may create, for now, greater
public confidence in the investigation, but there are significant downsides.
Special prosecutors have a tendency to begin in one place and end up somewhere
wildly different — Whitewater turned into the Lewinsky scandal — and they also
have a tendency, lo and behold, to want to prosecute. This was most recently
demonstrated by Patrick Fitzgerald, who in the mid-2000s used his role as
special prosecutor in the Valerie Plame affair to go hammer and tongs after
Bush confidant Karl Rove and, failing that, to railroad Lewis “Scooter” Libby
into prison.
Whether the new investigation spirals out of control will
depend entirely on the discipline and rectitude of the special counsel. To his
credit, Rosenstein has appointed Robert Mueller, James Comey’s predecessor at
the FBI. The second-longest-serving FBI director (behind J. Edgar Hoover),
Mueller garnered respect from Republicans and Democrats during his tenure
leading the Bureau; his ten-year term, which began in 2001 under George W.
Bush, was renewed by President Obama in 2011. Mueller, who retired in 2013, is
known for sober leadership and for a distaste for partisan games, and several
Democrats have praised Rosenstein’s choice.
It’s important to note that Mueller is not an independent
counsel of yore. Since 1999, when both parties allowed the Ethics in Government
Act to expire — after the Clinton years, Democrats were less enamored of the
special-prosecutor concept — special prosecutors have been subordinates of the
executive branch, as they should be.
It’s anyone’s guess where this goes from here. Mueller
has a wide investigative brief, and we will no doubt be hearing more about
Messrs. Flynn, Manafort, and Page, the Trump associates with known ties to the
Kremlin, and Roger Stone, the outlandish gadfly who worked with Trump for
years. So far, despite the Democratic hysteria, we haven’t seen anything that
suggests anything worse than that these figures are shady operators who never
should have been close to a presidential nominee or a president. But we want to
see where the facts lead.
Ideally, Mueller will be able to conclude his
investigation expeditiously, but it’s possible this could drag out: The special
counsel appointed to investigate Whitewater in 1994 outlasted the Clinton
administration. For this reason, among others, no administration ever wants a
special counsel. Trump has no one to blame but himself that he now has one.
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