Wednesday, June 26, 2019

10 Reasons Why Appointing Mueller Made Sense


Trying to decipher Rod Rosenstein is a hobby of mine (and a few others), and it's not easy to be honest. How did Rod go from (allegedly) discussing a wiretap of the President to effusively praising him? The first order of business seems to be understanding the circumstances of the May 17th, 2017 appointment of Robert Mueller as Special Counsel. For that decision alone, Rod Rosenstein became a MAGA-punching bag. Hell, I have been guilty of it too. But maybe some of that hate was and is misguided.

Here are 10 reasons why the decision to appoint Mueller actually made some sense:

1-Shutting down the "Trump-Russia" investigation on May 16th, 2017 was untenable
Shutting it down seems like the right move in a vacuum. Trump-Russia was a hoax, we now know that definitively with the release of the Mueller report. But at the time, there were "Russia" questions from Americans of all stripes. Trump was an outsider candidate with worldwide business dealings, and Mike Flynn had been fired for something, who knows maybe there is something there, they thought. All of these doubts were billowed by the echo chamber media but regardless, that perception was out there. Shutting it down would make Trump look guilty, like he had something to hide.

Making it worse, it seems likely that some at the top levels of the FBI and DOJ would mass quit if Rosenstein decided to shut down the investigation. I'm sure McCabe would. A mass quit event would be portrayed in Watergate terms, maxing out the political damage to Trump. 

2-Mueller was effectively a "put up or shut up" moment for the investigation
Trump-Russia began as a counterintelligence investigation. The world of counterintelligence is spy-vs-spy and full of shadows. The targets are often never charged with anything. They never find out they were being watched and are not afforded the ability to defend themselves in a court of law, as the constitution provides. The US intelligence community has vast powers to surveil. This is what Trump was up against, the IC collecting "dirt" and passing it around.

The regulations governing the appointment of a Special Counsel are focused on crimes. Provable, prosecutable crimes. Moving the Trump-Russia investigation from the realm of counterintelligence to the realm of crimes sounds bad for Trump at first glance, but it ended up working in his favor. It's very risky, to be sure, but it meant that there was no more Comey sneaking around, making surreptitious memos and slipping them to confidants. It meant the people charged could ask for discovery of underlying documents and defend themselves. In this situation where Trump knew he wasn't guilty of collusion, that worked in his favor.

3-No one wanted to take FBI Director job with Trump-Russia hanging in the balance
After firing Comey, Jeff Sessions and Rod Rosenstein had to nominate someone for the now vacant FBI Director position. Given the media uproar over firing of Comey, doing it quickly was important. Trump talked about the importance of filling the slot quickly many times in the days following the firing. And Sessions and Rosenstein tried hard to facilitate the tight timeline. Sessions was calling potential Director candidates the very next day, and eight in-person interviews were conducted two days after that (on a Saturday no less).

Yet, Gowdy and Cornyn turned down the opportunity. None of the other candidates seemed to work out either. The stakes were so high and stepping into this job was like stepping into a firefight. The person taking over this Trump-Russia investigation was going to be accused of being a stooge of Trump by the left and accused of running a witch hunt by Trump. Shifting Trump-Russia to a Special Counsel meant the job requirements for the next FBI Director were more "normal."

4-The President was about to leave for his first trip abroad
Trump's big trip to the middle east began around 2pm EST on May 19th 2017, when he boarded Air Force One at Joint Base Andrews. That is less than 10 days after Comey was fired. And really, trips like this are planned months in advance. But this trip abroad was really important to his presidency, and full of traps. The swing included Saudi Arabia, Israel, the Vatican, plus G7 tacked on at to the end.

Domestically, the media was pumping Trump-Russia non-stop in these days before departure. This is not a great look abroad where you are trying to project strength. Something, anything had to be done to quiet the jackals. Democrats had been explicitly calling for a Special Counsel, so that would at least quiet them for a time.

5-There were essentially no confirmed US Attorneys at the time
Dana Boente was the only confirmed US Attorney at the time, all the others had been fired by Trump. And even Boente was detailed to Main Justice so he wasn't even running things day-to-day at EDVA. As a result, Rosenstein did not have a stable of known, reliable prosecutors to rely on for potentially helping with the sensitive Trump-Russia case. He had scrubs and holdovers.

Bringing in a Special Counsel meant bringing in reinforcements, and likely ones from the private sector with shiny resumes and used to long work hours. If Rosenstein wanted things to get done, and fast, relying on the existing cast at DOJ was less than ideal.

6-An excuse to stonewall congress
Even though they talk nicely about complying with oversight, the executive branch hates having congress all up in their business. I'm sure Rosenstein is no different. The FBI and DOJ had just produced an unprecedented amount of documents to congress as part of the Hillary Clinton email case, I'm sure most institutional DOJers hated that. And FBI/DOJ was already being asked for testimony and documents be made available to congressional committees related to Trump-Russia.

A Special Counsel is like a force field going up. Production to congress stops because all of that is now part of an ongoing criminal proceeding. If nothing else, it buys time.

7-Rosenstein truly was conflicted in a case of obstruction of justice
A Special Counsel is intended to only occur when there is a conflict of interest within the DOJ which requires an outside lawyer to handle an issue. When Trump-Russia was about contacts with Russians, Rosenstein had no conflicts. He was not involved with the Trump campaign, he never met with Kislyak, etc. That all changed when McCabe opened the obstruction of justice case. Rod would have to give an interview in that case because he was a key player in the whole thing. Rod couldn't be a witness and in charge of the investigation. Thus, there is a conflict and now Special Counsel is justified per regulations.

How Rod managed to stay "the boss" of Mueller given his conflicts seems less clear cut, but he managed to do it.

8-Trump likes Mano-a-Mano situations 
It's a function of his personality that Trump likes a him-against-someone-else confrontation, each party trying to win. There is no subtlety, he is a fighter and who ever is put in front of him as "the opposition" is going to get pummeled. I bet Rod understood this. Statutorily, FBI Directors are appointed to a 10 year term. If the Trump-Russia investigation was assigned to an incoming FBI Director, whoever is coming in is going to get ripped and almost certainly not last the full term.

In essence, a special counsel can act as a "sacrificial" director. Taking all that political heat and leaving the actual office of the FBI director somewhat unscathed. And Trump likes it too, because rather than fighting the nebulous "deep state", he has a target with a face. It's him against Mueller, mano-a-mano.

9-Mueller knew all these people and groups so could get interviews
Mueller was FBI director for 12 years and was integral to the shifts inside the intelligence community after 9/11. Mueller promoted Shawn Henry up the ranks of the FBI. Mueller picked Andrew Weissman as his General Counsel at the FBI. Mueller probably also knew a lot of the sensitive sources that were used in this case (Halper? Mifsud? Sater? Kilimnik?). He had been working on the Shadow Brokers case along with Rosenstein in the months before becoming Special Counsel. His law office had a long term relationship with the Kushners.

Mueller knew so many of the players in this case, so he could just open up his rolodex and start talking to people, and cut through some of the chaff. Trust between Mueller and some of these sources meant the case could move faster. For example, Mueller was able to secure an interview with the head of Alfa bank, Petr Aven, a Russian who had no legal responsibility to talk to Mueller. Yet he still did, presumably because he felt Mueller would treat him fairly.

10-Can be used to freeze out McCabe
I think this one gets too much run sometimes because McCabe was still involved with the investigation even after Mueller. But there is no doubt that Mueller's appointment meant McCabe took a step back. In fact, most the institutional elements of FBI and DOJ took a step back (except Weissman). It became the Mueller, Weissman and their high priced private sector lawyers (Rhee, Zebley, Quarles) show.

I have no doubt that Rosenstein and McCabe had hard feelings against each other. Rosenstein was put in a horrible situation and he seems to have a temper as well. I imagine some choice words were exchanged. So, freezing out McCabe would certainly be a positive development for Rosenstein.

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