Donald Trump

Good and Bad Critiques of the Mueller Investigation

Robert Mueller's handling of his investigation is not above criticism, but many critiques miss the mark.

|The Volokh Conspiracy |

Republican officeholders, pro-Trump partisans and anti-anti-Trump commentators have become increasingly shrill in their critiques of special counsel Robert Mueller and his investigation into whether the Trump campaign colluded with Russia to influence the U.S. election. Some concerns raised about the investigation are reasonable, but the overall thrust of the attacks—that there is something improper or illegitimate about the investigation—miss the mark.

Over at the Washington Post, former federal prosecutor and National Review contributing editor Andrew McCarthy offers a useful and sober critique of Mueller's investigation thus far and the anti-Mueller claims. His bottom line: "while there is cause for concern, the results Mueller has produced so far appear free of political taint." Further, as McCarthy notes, in the case of an FBI agent who sent texts suggesting potential bias, "Mueller was scrupulous about removing what was, at the least, the appearance of impropriety."

McCarthy's piece stresses an important point: The expression of political opinions by investigators or prosecutors is not enough, by itself, to create the appearance of impropriety. He writes:

That appearance is not established by mere expression of political opinion or activism. I was a federal prosecutor in New York for many years, and I was not shy about sharing my conservative political views. Nor were my colleagues — my best friends in the office were liberal Democrats. But it was understood that our politics were checked at the door.

It is required, though, that they remain ever-mindful that the appearance of fairness is as important as the reality. That doesn't mean opinionated investigators must bow out of politically fraught cases. But they should grasp what makes a case so fraught and remove themselves if particular views they hold could undermine an investigation.

As McCarthy notes further, Mueller's appointment was heralded when it was made because of his sterling reputation. While Mueller may not have been as quick as McCarthy might like to address misperceptions of how his office has acted—particularly with regard to one of his deputies who praised then-acting Attorney General Sally Yates' political posturing on the Trump Adminsitration immigration Executive Order—there is no reason to believe the investigation is tainted or that it has become a political witchhunt.

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  1. The investigation is based on a fairy tale.

    It should not exist.

    1. If by “fairy tale” you mean legitimate attacks on our elections by an outside party than you would be correct. Why are you afraid of that being investigated comrade?

      1. We already have legitimate attacks on our elections by outside parties, namely the broadcast and print network media.

        1. @MichaelEjercito ? I thought someone who reads Reason would understand the merits of a free press. You can’t complain against one outlet without inviting challenges against every other network.

      2. This is not an investigation of “attacks on our elections by an outside party”

        It’s an investigation of Americans. and after all this time, they still don’t have a shred of evidence.

        1. No evidence, but convictions and likely some flips.

          Conservatives sure are fond of believing in fairy tales.

          1. Guilty pleas, rather than convictions, but let’s ignore that. Manafort is in trouble for actions he took before the Trump campaign, and Flynn for a process crime that doesn’t involve any underlying crime. That latter is the sort of thing you can nail anybody on, if you ambush interview them, and they’re stupid enough to not ask for their lawyer and clam up. Like maybe if you’ve given them the impression that your agents came over to talk about transition details, rather than to interrogate you.

            So far nobody has been nailed on anything that indicates the matter Mueller is supposed to be investigating is real.

            1. I hope that, some day, you’ll be able to look at the way you carried water for Trump’s corrupt gang and recognize your complicity in the whole affair.

              Flynn pleaded guilty to a “process crime,” lying to the FBI. But what did he lie about? Look at the charging document. He lied about his interactions with the Russian government prior to the inauguration. Logan Act violations, in other words. So, yes – criminal activity. You can wave that away as something no one ever gets charged with, but you can’t then come here and pretend that there’s no “underlying crime.” That’s having your cake and eating it too.

              That’s what we spectators know, in as incontrovertible a way as we can hope to know it. And where there’s smoke, there’s fire. What’s the fire? Is it Trump’s attempts to obstruct justice in its investigation of Flynn’s interactions with Russia? Is it Trump and/or Sessions’ involvement in directing Flynn to reach out to the Russian government in order to undermine Obama’s foreign policy? Is it some quid paid for the pro of sanctions relief, arranged by Trump’s advisers with Wikileaks and the Russian government during the campaign? We don’t yet know. But none of that is good for the country.

              1. Yeah, concerning LEGAL interactions with the Russian government. National security advisor for the President elect, he was expected to have such communications.

                So they ambush him by making him think they’re there to talk to him about the transition, so that he won’t be on his guard, and question him about communications they already know are legal, and catch him in a mistake. Classic example of why you never talk to the FBI without a lawyer present.

                Just mentioning the Logan act is enough to identify you as unserious: It was enacted by the same Congress as the Alien and Sedition acts, and in over 200 years, nobody has EVER been prosecuted under it. Because everybody understands it’s unconstitutional!

                It’s unconstitutional even in regards to everyday citizens. Presidents elect? They’re entitled to undermine the foreign policy of the outgoing President.

                1. You’re not a lawyer, are you? Something doesn’t become “legal” just because the law forbidding it is old; activity doesn’t fail to be “criminal” just because no one’s been convicted of it. Here’s a question, genius: why did he lie to the FBI about it, if it was “legal?”

                  Here’s another question: even if everything you say about the Logan Act were true, wouldn’t it still be inaccurate to say that he pleaded to a “process crime” where there was no underlying criminal activity? Wouldn’t that leave out an awful lot of apologetic reasoning? (That is, that an incoming security advisor could actively undermine American foreign policy, despite laws forbidding just this kind of thing, just because the law is old, possibly but not demonstrably unconstitional, and people would expect him to violate that law anyway?)

                  1. “wouldn’t it still be inaccurate to say that he pleaded to a “process crime” where there was no underlying criminal activity?”

                    No, it wouldn’t because if everything he said, including that the Logan Act does not apply to a President Elect’s transition team, is true, then there is not Logan Act violation.

                    Consider this, if Mueller and his FBI team believe that Flynn violated the Logan Act, why wasn’t he charged with violating the Logan Act in addition to being charged with lying to the FBI?

                    1. It’s called a “plea deal.” Flynn pleaded guilty and agrees to cooperate in the investigation, in return for a degree of lenience.

                  2. “You’re not a lawyer, are you? Something doesn’t become “legal” just because the law forbidding it is old; activity doesn’t fail to be “criminal” just because no one’s been convicted of it.”

                    No, I’m not a lawyer, and obviously neither are you, but at least I’m acquainted with the concept of “desuetude”. Yes, actually: if a law was passed over 200 years ago, and never enforced, it’s dead, Jim.

                    1. if you were familiar with the concept of desuetude, you would understand how its requirements are not met here.

                    2. I’m subscribing to the theory that an illegal order is an order you don’t have the authority to issue. The President, just as he can pardon, can order that a prosecution be dropped. Prosecutorial discretion, and he’s the boss prosecutor. There ARE orders it’s illegal for the President to issue; “Persuade her to lie under oath.” “Don’t hand over those billing records we’ve been subpoenaed for.”

                      If he issues an illegal order of that nature, year, obstruction of justice. But, “He’s a good guy, go easy on him.”?

                      Not remotely illegal.

                    3. It’s a law that was enacted over 200 years ago, and has never, repeat, NEVER been the basis for a prosecution, let alone a conviction. If the requirements of desuetude are not met in the case of the Logan act, they are never met.

                      I suspect Trump has violated the Alien and Sedition acts, of similar vintage. You figure he should be prosecuted under them, too?

                    4. Yeah, google “desuetude” and then get back to me. It’s a concept with limited application in American law, and it has some specific requirements even where it is observed. And even when it’s observed and applied, it would have very little effect beyond barring a specific prosecution.

                      Anyway – again the point is that you’re wrong to say that there’s no underlying crime involved with Flynn’s plea deal, to say nothing of other crimes he could be charged with but won’t by virtue of his plea deal. (You and others seem to seriously believe that Flynn and Manafort were charged with the worst possible and most relevant crimes they could be charged with by the Mueller team, on the evidence they have. That’s so ridiculously fantastical I wonder how you could possibly think that.)

              2. Complicity! Resist! Feelings do a lot of work where we should demand facts.

                The Logan Act has not been invoked in a century or more and has never been the basis of a successful prosecution — don’t you think a transition team member’s meeting with an ambassador shortly before the inauguration would be a bizarre first-ever conviction?

                To date there is not a shred of evidence of any criminal conduct during the election, and so far the most substantial Russian collusion story is the Clinton-funded Steele dossier of misninformation from Russian officials, which stoked everything. Read Lee Smith’s work at tabletmag.com — he praises Glenn Greenwald, but Smith has been incisive throughout this year.

              3. Are you seriously this stupid or being obtuse on purpose?

                You can’t violate the Logan act if you are part of a president-elect’s transition team – and Flynn was. God! how dumb!

                Flynn was ambush interviewed by one Peter Stzrok of said “we need an insurance plan” fame. They asked him about what he said to the Russian ambassador when they had the transcripts of the exact conversation. When he couldn’t recite verbatim the transcript, BAM! lying to an FBI agent. Scooter Libby and Martha Stewart were unavailable for comment.

            2. Just mentioning the Logan act is enough to identify you as unserious:

              This seems an apt point at which to invite Mr. Bellmore to describe his statements and beliefs with respect to birtherism.

              Did your claim to be a libertarian make the move to Reason, Mr. Bellmore?

              1. Sure, if you wish: I expressed the belief that it was extremely unlikely Obama was born anywhere but Hawaii, though not categorically impossible. While it *could* have conceivably been faked, why would anybody at the time have bothered?

                And I stated that the actual birthers were entitled to be proven wrong in a court of law, with the best available evidence. Since the natural born citizen clause actually was a constitutional requirement.

                As soon as an actual hearing on the merits was scheduled, Obama stopped obstructing release of his birth certificate, and they were proven wrong.

                In your fevered imagination, thinking somebody is entitled to lose in court is the same as thinking they’re right.

                1. Let’s let a little more rope play out before providing the quotations.

                  1. Isn’t the “quotation” something along the lines of Brett asserting a lack of personal knowledge about Obama’s place of birth?

                    1. It’s good to see the Volokh Conspiracy’s movement conservatives sticking together. Now that they and their right-wing authoritarianism are among genuine libertarians, they will need every bit of solidarity they can get.

                    2. “Isn’t the “quotation” something along the lines of Brett asserting a lack of personal knowledge about Obama’s place of birth?”

                      Yes, apparently I was supposed to recite “Obama was born in Hawaii” like it was the Nicene creed. Failure to do so rendered me a “birther”.

                    3. I hope Bellmore and Ejercito are not representing any criminal defendants.

                    4. I assure you that, as lawyers go, I am a quite competent mechanical engineer. If you need a stamping die represented in court, I’m your man.

                      And I maintain that you don’t need to be a lawyer to realize that the special counsel isn’t going to try to take down a sitting President on the basis of a 200 year old law that nobody has ever, EVER been prosecuted under. It doesn’t matter how much he wants Trump’s scalp, he doesn’t want to become a laughing stock.

                    5. He’s probably not going to try to take down the President on the basis of the Logan Act, but that’s not what prompted discussion of the Logan Act?it was instead your insistence that Michael Flynn committed no underlying crime related to his plea.

                    6. He’s probably not going to try to take down the President on the basis of the Logan Act, but that’s not what prompted discussion of the Logan Act?it was instead your insistence that Michael Flynn committed no underlying crime related to his plea.

        2. You know how I know that they have evidence? Because we have evidence. Between the interactions between Trump and Comey, Trump’s comments, the email exchanges in summer 2016, the “dossier,” the meetings, the lies about meetings, we’re WELL past “shreds,” here, Careless.

          You may not think it’s conclusive, but, holy cow, how the hell do you argue that there’s no *evidence* with a straight face?

      3. Usually investigations center around a crime to investigate. From the current indictments, the initial crime of Russian interference is still not found. So then we get to the argument of it being a counter intelligence investigation… What intelligence was supposed to have been lost by Trump. So then we get into the coordination of Russian during an election. So far the only documented coordination was Hillary’s campaign paying a lawyer to pay FusionGPS, to pay Steele, to pay Russian contacts for opposition research… Yet this seems to be out of scope of the investigation based on the know investigation paths.

        So what “legitimate” facts for an investigation do you believe required this SP?

        1. So then we get to the argument of it being a counter intelligence investigation… What intelligence was supposed to have been lost by Trump.

          That’s not? okay, look. A counterintelligence investigation isn’t solely about addressing “lost” intelligence. It’s about identifying faults in the system, as they relate to foreign influence and access. To the extent that the faults in the system revolve around a single person, the investigation might involve (or evolve into) a criminal investigation. Such a fault in the system wouldn’t only pertain to “lost intelligence”?a funny phrase to be using in any context with Donald Trump, as I’m not sure he’s that much dumber today than he’s always been.

          So then we get into the coordination of Russian during an election. So far the only documented coordination was Hillary’s campaign paying a lawyer to pay FusionGPS, to pay Steele, to pay Russian contacts for opposition research…

          Wow. First, that’s not the only documented “coordination;” I refer you to Donald Trump Jr.’s emails. Second, what you describe isn’t coordination. That’s fee for service. If your argument is that whatever Donald Trump did, it was analogous to paying a foreigner to share knowledge, then OK. But I’ll want evidence, because the publicly-available evidence isn’t that Donald Trump wanted to trade cash for election assistance, it’s that he wanted to trade foreign policy for election assistance.

    2. Sorry, comrade:

      “Fairy tales can come true
      It can happen to you if you’re young at heart
      For it’s hard, you will find
      To be narrow of mind if you’re young at heart

      You can go to extremes with impossible schemes
      You can laugh when your dreams fall apart at the seams
      And life gets more exciting with each passing day
      And love is either in your heart or on it’s way

      Don’t you know that it’s worth
      Every treasure on earth to be young at heart
      For as rich as you are
      It’s much better by far to be young at heart

      And if you should survive to a hundred and five
      Look at all you’ll derive out of bein’ alive
      And here is the best part, you have a head start
      If you are among the very young at heart”

  2. “The overall thrust of the attacks — that there is something improper or illegitimate about the investigation — miss the mark.”

    What exactly is the factual basis for this investigation?

    How come the people who criticize those skeptical of the investigation refuse to tell us what the facts are that warrant the investigation?

    1. I assume that you are a reasonably intelligent and slightly informed person. When is the last time you heard the Department of Justice announce why they were opening a criminal investigation not connected to an act of violence? I can’t remember when that was. The reasons behind this are plenty. Here are just two: [1] they do have a duty to protect the reputation of people they don’t charge and [2] announcing the reasons does tip off suspects to the government’s game plan. But, rest assured that the specific facts are known at Main Justice. At the end of the investigation, Deputy Attorney General Rod Rosenstein may or may not elect to release the Special Counsel’s files. Hopefully, you’ll learn what you want then.

    2. 1) Russia spied on a major US political party, breaking US laws in the process, and used that information to launch a major propaganda campaign against that party.

      2) There are several instances of members of the Trump campaign having inappropriate ties to Russia and Russian intelligence. In fact, there are several instances of members of the Trump campaign attempting to work with members of the Russian government as well as failing to report meetings with representatives of the Russian government in sworn documents or while under oath.

      3) The President instructed the head of the FBI to stop an investigation of a subordinate, potentially having known that the subordinate was guilty of lying to the FBI. That is very much an obstruction of justice.

      Certainly 2 & 3 seem like valid grounds for the investigation of the Trump campaign.

      1. Before the hair on fire crowd hits, i point out that Trump didn’t “direct” Comey to drop the case against Flynn. He just, you know, wished Comey could [wink] let it go. Though no reports have confirmed, I’ve always assumed Trump then tucked a five dollar bill in Comey’s jacket pocket, patted him on the back, and said “That’s a good boy.”

        1. Didn’t “instruct,” I meant.

        2. The irony here being that it was within Trump’s authority to simply order Comey to let it go. Or just preemptively pardon Flynn and then laugh maniacally in Comey’s face.

          Making a case for obstruction on the basis of somebody who has the pardon authority, and authority to simply order the investigation ended, merely expressing a desire for mercy, is a bit of a stretch.

          1. “Why would I rob a bank when I already have a checking account?”

            1. Why would I rob my checking account when it is my account?

              1. You couldn’t.

          2. Having the authority to do X does not necessarily mean X is legal.

            1. Unclear about the meaning of “authority to do X”, are we?

              1. Not at all. Illegal orders are an actual thing, unless you’re subscribing to the theory that anything the President does is legal.

                1. “unless you’re subscribing to the theory that anything the President does is legal.”

                  There is a difference between Nixon’s infamous “when the president does it, it’s not illegal” and admitting that a criminal law can’t constrain a constitutional power that can be exercised at will. It’s bad governance to do so, but it isn’t illegal or unconstitutional.

          3. “Merely expressing a desire for mercy,” then merely firing the FBI director for failing to do so, then merely declaring to Russian diplomats that firing the FBI director removed pressure off of him, then merely declaring to the world on television that firing the FBI director was related to the investigation into Russian interference in the 2016 election.

            Christ, Brett, with stretches like that, one would think you were warming up for an olympic competition.

      2. You seem to forget that it was the HRC campaign and DNC that paid FSB agents for “dirt” on Trump. You also seem to forget it was the HRC campaign and DNC that was colluding with several foreign governments including Ukraine. You also seem to forget that the HRC campaign and DNC had numerous contacts with members of the Russian government which they failed to report. Not to mention HRC staffers lying to the FBI about the illegal server, which was hacked by several foreign entities. Lest we forget, Comey violated several federal laws including leaks to media and his close association with Mueller. But please don’t let facts get in the way of a good whine.

        1. The HRC, the DNC, and the FBI all paid for “dirt” on Trump, with cash. When Donald Trump Jr. met with the Russians in June 2016, they were discussing? the Russian bank details, right? No? Not that? Oh, right. They were discussing the Magnitsky Act.

      3. Putting aside whether these 3 points overstate the case against the Trump circle (him, his family, his associates and his campaign members), let’s say arguendo you are correct (particularly on points 1 and 2),** to wit:

        We have documented contacts between members of a political campaign and people affiliated with a foreign government that has spied on, and sought to influence, the U.S. political establishment . . .

        How is this not the case in virtually every single political campaign in our lifetimes?? Whether it’s Israel, China, Saudi Arabia, Iran, or even our allies at NATO — we all spy on each other; we all seek to influence each other’s domestic politics; and there are always contacts between people in those government and the members of national political campaigns.

        So maybe Russia’s attempts at interference were unprecedented. We have not seen actual evidence of this, but let us assume that Russia has mounted the greatest spying and propaganda operation in the history of domestic U.S. politics. Fine. Let’s assume this arguendo as well.

        ** On point 3, I would simply note that the information the subordinate lied about had nothing whatever to do with Russian involvement in campaign activities, and the FBI well knew this, because they had wiretapped the underlying communications. So I’m not sure how point 3 has anything to do with an investigation into “collusion” which would have affected the election.

        (MORE)

        1. We still don’t have factual allegations connecting those activities with anyone involved in the Trump campaign. What do we have? Well, we have a meeting between Don Jr. and a Kremlin-connected lawyer whose job is to overturn the Magnitsky Act — which deals with the entry of Russian businessmen into the U.S; an FBI-paid stenographer attended that meeting. We have an unpaid 29-year-old intern, with a connection to a Kremlin-connected Maltese lawyer living in London, who apparently sent 7 emails to other campaign members about Putin; none of which garnered much of a positive response. We have a businessman loosely connected to the campaign who traveled to Russia in the summer of 2016, who met with a Russian government official and several businessmen, but whose domestic policy communications during that trip were at most about the Magnitsky Act. We have a campaign manager, fired in August, who had prior connections with the Kremlin, but who apparently never discussed the 2016 election with Russians. And, finally, we have a U.S. Senator on the Armed Services Committee, who took a meeting (where his staff was present) with the Russian Ambassador. That’s it.

          (MORE)

          1. So . . .

            Other than a single email from a campaign official encouraging the unpaid intern to follow up on Russians claiming to have “dirt” on Clinton (follow up which never happened), there is not a single factual allegation connecting any Russian activity involving the campaign with anyone connected this Trump. Ironically, this is far from the case with the other presidential campaign, which actually funneled money to Kremlin and other Russian sources to pay for “dirt” on Trump.

            Point being, we have a whole lot of nothing (or even that out of the ordinary) . . . EXCEPT FOR STEELE’S DOSSIER. And, that’s where things get interesting, because it seems as though the only predicate for the scope of this investigation are the allegations made in that dossier — a dossier which is in reality opposition research paid for by the opposing political party.

            Perhaps I am not old enough, or not informed enough; but I cannot remember any other case where an investigation of this scope/length/importance was based, almost entirely, on opposition research from the campaign of a losing candidate for office.

            1. Opposition research is a bad enough source — opposition research that pays Russian sources for dirt is even worse.

            2. Perhaps I am not old enough, or not informed enough; but I cannot remember any other case where an investigation of this scope/length/importance was based, almost entirely, on opposition research from the campaign of a losing candidate for office.

              “Nobody thought the circumstances around any OTHER election were shady enough to launch an investigation” might not be as strong a defense as you imagine.

        2. “We have documented contacts between members of a political campaign and people affiliated with a foreign government that has spied on, and sought to influence, the U.S. political establishment . . .”

          So what? The US spies on and has sought to influence the political establishments of many other nations.

          I might be more concerned if you could point to anything the Russian government did in violation of US law.

          Social media add campaign? Not illegal.

          Hacking the DMC email servers? Where is the evidence that the Russian government was behind it?

          The hacking of a company that provides voter registration systems to state governments and to use it’s servers as a platform to phish state election officials? The NSA supposedly (according to their own report) knew about this six months before the election. They made no attempt to either stop the scheme or to warn either federal or state election officials about it. And while the report sates that the NSA believes that the Russian government was behind this, it contains no actual evidence to back that up.

          1. Buying ads in support of Trump is an in-kind political contribution, which the Russian government is prohibited from making.

            Even if you want to claim that Citizens United would protect the ads were they run by a U.S. “person,” CU doesn’t extend to the Russian government, and I rather doubt it extends to whatever Russian-dominated proxy bought the ads.

            1. “Buying ads in support of Trump is an in-kind political contribution”

              Except the social media ads being attributed to the Russians were mostly issue adds, not supporting any candidate and they were all over the political spectrum, supporting both far-right and far-left causes.

          2. So what? The US spies on and has sought to influence the political establishments of many other nations.

            And in those nations, if a candidate for high office were to promise the US policy concessions in exchange for favorable influence, that’d rightly be a scandal there, right? And something worthy of ferreting out?

  3. ” there is no reason to believe the investigation is tainted or that it has become a political witchhunt.”

    There certainly is! Have you read the recently released text messages form members of this team?

    Holy Cow, you are in deep denial!

    1. Which was promptly dealt with by removal of the individual. What’s your point?

      1. Removing one individual does not incise the anti-Trump cancer that permeates the bureau. And, he wasn’t removed when this became know internally, he was removed when it was politically necessary to do so. Why did it take so long?

        1. “Removing one individual does not incise the anti-Trump cancer that permeates the bureau.”
          Would you rather the FBI have a pro-Trump cancer? Agents are people just like you and me. They have opinions. Are they not allowed to share them? They have political affiliations. Are they not allowed attend rallies? The question has always been if employees let their biases influence their work, not if they are pro- or anti-administration. Can you prove that this happened? (I am saying this with ten years of experience in the Defense Intelligence Agency. We were treated just like the FBI under the Hatch Act. I think I know what I’m talking about.)

          “And, he wasn’t removed when this became know internally, he was removed when it was politically necessary to do so. Why did it take so long?”
          Are you really going to complain about less than seven days? The OIG got the phone records from 05/16-11/16 on 7/20/17. He requested the records from 11/16-7/17 and got them a few days later. He told Mueller on 7/27/17, and Strzok was removed the same day.

          1. So why did it take them so long to request those phone records?

            1. @MatthewSlyfield “So why did it take them so long to request those phone records?”
              Enlighten me: when should those records have been requested? The IG’s investigation was initiated in January 2017, and the phone records were obtained on 20 July 2017. Since the final report is expected to come out next spring at the earliest, I’d consider the timing to be well ahead of schedule. That’s a win for the government. http://thehill.com/policy/nati…..nton-probe

          2. So, no problem with a Klan member holding a high-level position in the DOJ Civil Rights Division?

            1. Who’s the “Klan member holding a high-level position in the DOJ Civil Rights Division”?

          3. Joe,
            The proof is already there. The FBI agent removed from Mueller’s team, was also the one that oversaw the HRC email server investigation and did nothing about the lying to FBI by HRC staffers and didn’t place HRC under oath. He also happened to be the one that changed HRC gross negligence to extreme carelessness which gives the appearance of covering up a violation of US law. Not to mention that he was having an affair with another that was not only on Mueller’s team but came from Mueller’s civilian office to the team. Then we have McCabe’s close association with HRC and DNC through his wife and her campaign. Not to mention Mueller’s top aide is a 9-0 loser at SCOTUS because of his illegal actions during Enron.

            1. The agent also sent text messages critical of HRC, but why let that get in the way of the narrative, right?

            2. “The proof is already there.”
              News reports aren’t “proof” until someone “in the know” goes on the record.

              “The FBI agent removed from Mueller’s team was also the one that oversaw the HRC email server investigation…”
              Strzok didn’t oversee anything.

              “and did nothing about the lying to FBI by HRC staffers…”
              Where is your proof that the they lied?

              “…and didn’t place HRC under oath”
              That’s standard procedure. It’s a crime to lie to the FBI even if you are not under oath. Just ask Michael Flynn.

              “He also happened to be the one that changed HRC gross negligence to extreme carelessness which gives the appearance of covering up a violation of US law.”
              Have you never edited a document?

              “Not to mention that he was having an affair with another that was not only on Mueller’s team but came from Mueller’s civilian office to the team.”
              Your point?

              “Then we have McCabe’s close association with HRC and DNC through his wife and her campaign.”
              The information was shared with the ethics office and they determined that it wasn’t required. As Sarah Huckabee Sanders once wrote: “When you’re attacking FBI agents because you’re under criminal investigation, you’re losing.” goo.gl/GwSefJ

              “Not to mention Mueller’s top aide is a 9-0 loser at SCOTUS because of his illegal actions during Enron.”
              The case was about if the judge gave proper instructions to the jury not, Weissmann’s actions. Read up: goo.gl/3AEzNg.

        2. Removing one individual does not incise the anti-Trump cancer that permeates the bureau.

          The FBI doesn’t have an anti-Trump cancer. Or, at least it didn’t before he took office.

          And, he wasn’t removed when this became know internally, he was removed when it was politically necessary to do so. Why did it take so long?

          Wasn’t he removed this past summer? And didn’t the news of his removal only come out in, like, the last week or so?

    2. Adler? Unlikely. Post, Baker, and Lindgren are nutsy partisans, and Somin is an insane open borders backer, but Adler, E. Volokh, and Kerr aren’t like that

      1. (Somin only being nutty when he writes about immigration. Which is, unfortunately, almost every post since Trump)

        1. Somin at least redeems himself on the issue of political ignorance.

    3. Are FBI agents not allowed to share their personal thoughts in private with their significant others? That’s what happened.

      1. Lisa Page likely wasn’t Peter Strzok’s significant other. Several reports have characterized their relationship at the time the text messages were sent as an extra-marital affair.

        1. @MatthewSlyfield “Lisa Page likely wasn’t Peter Strzok’s significant other. Several reports have characterized their relationship at the time the text messages were sent as an extra-marital affair.”
          [1] Does that invalidate what I said about FBI agents being able to share their personal thoughts?
          [2] What’s the difference between “significant other” and “intimate partner” (as the person he was sleeping with)? You can certainly have more than one of each. Strzok was married to Melissa Hodgman, but I think they may hay been separated because her biography from October 2016 didn’t include a reference to Strzok which many married people include.

          1. 1. Lisa Page was also involved with both the HRC email server investigation and Mueller’s team.

            2. The thoughts shared are not just private thoughts, but directly related to investigations that both parties were involved in.

      2. Are they allowed to share their personal thoughts concerning work and the target of investigations, using untraceable burner phones to avoid leaving a trail?

        In one of the published text messages, they make reference to using burner phones when talking about Clinton. I’m pretty sure burner phones aren’t normal for interdepartmental communications.

        1. The texts were sent on government issued phones. That’s how the government has access to them.

          You’re just making shit up.

          1. No, idiot: One of the texts sent on the government phone referred to using burner phones.

            http://www.zerohedge.com/news/…..eveal-burn

            “So look, you say we text on that phone when we talk about hillary because it can’t be traced, you were just venting bc you feel bad that you’re gone so much but it can’t be helped right now.”

            She’s talking about a “burner” phone: A pre-paid phone you buy with cash under a fake name, so that somebody who might be tapping your phone won’t intercept the calls.

            It’s a rookie mistake, mentioning your use of a burner phone on your regular phone. I’m guessing here, but this is probably why Strzok is in FBI Siberia now, instead of just transferred to a different investigation.

      3. If the FBI doesn’t have a rule prohibiting the head of counter-intelligence from sending easily accessible texts and emails to his paramour in adultery, thereby exposing himself to potential blackmail by foreign governments, I suggest that they promulgate one post haste.

      4. The chief of counterintelligence …. who himself initiated the investigation?

        I guess he’s just any ol’ FBI agent.

      5. Sure they can. But when those conversations allude to a meeting with the FBI’s number two man about setting up an “insurance plan” to stop Trump from becoming president it crosses a very, very scary and very likely criminal line.

        1. Jesus Fucking Christ, the FBI Director sent a letter to Congress, which was essentially withdrawn later, that almost certainly cost Clinton the election, but the truly frightening thing is that a career FBI agent made some arguably inappropriate comments about Trump to a career FBI attorney in private?!

        2. Really? Really, dude?

  4. “While Mueller may not have been as quick as McCarthy might like to address misperceptions of how his office has acted — particularly with regard to one of his deputies who praised then-acting Attorney General Sally Yates’ political posturing on the Trump Administration immigration Executive Order — there is no reason to believe the investigation is tainted or that it has become a political witchhunt.”

    There was nothing improper about emailing Yates. It didn’t show an anti-Trump bias. The only thing that a reasonably competent person can draw from that message is that he’s proud of his colleague for not attempting to defend a law which the majority of scholars and a few courts said was blatantly unconstitutional. (The White House withdrew this order because of the legal issues.)

    1. So he was proud of his colleague for failing to do her job? Just as he failed to do his job in Enron?

      1. How did he fail in the Enron investigation? The government got over 25 convictions and only 10 acquittals. Contrary to what pro-Trump right-wing conspiracy theorists tell you, the one case that was overturned at the Supreme Court had nothing to do with Weissmann. It was about the judge giving improper instructions to the jury.

    2. Did you take a survey on that? I thought the overwhelming majority of commentary was that the challenges were poorly grounded, more political than legal.

      Do you have a link to the best argument you saw for the “blatant unconstitutionality” of the order?

      1. “Did you take a survey on that? I thought the overwhelming majority of commentary was that the challenges were poorly grounded, more political than legal.”
        I take it that you don’t read professional, legal literature very much.

        “Do you have a link to the best argument you saw for the “blatant unconstitutionality” of the order?”
        Are you asking me to link the court cases that DOJ lost because they tried to defend that turd (the first ban)?

      2. I don’t agree with the position Yates took, as I think there was a *colorable* argument that the order was constitutional. But the challenges were sustained by every court that heard them, up to, and including, the U.S. Supreme Court. So she was clearly correct that the order was most likely illegal.

        1. The order that she wouldn’t defend was rescinded because it was blatantly pro-Christian/anti-Muslim in violation of the First Amendment. Every court that heard it said that.

  5. I’m open minded about whether Mueller himself is handling the investigation fairly. But there are a couple things that give me pause. Did his team threaten Flynn with sending his son to jail for wholly unrelated conduct in order to put pressure on Flynn? I know most prosecutors wouldn’t blink an eye at that but it seems unseemly to go to those lengths to get a guilty plea for a process crime.

    Second, did Mueller’s team inform Flynn about the Strzok texting problem before Flynn made his guilty plea? It’s seems like disclosure of a major credibility problem for the most senior FBI agent in the room during Flynn’s problematic interview would be the ethical thing to do.

    I don’t have any problem with the Manafort indictment, he’s definitely wearing a short skirt and has it coming. But I’m wondering about why there hasn’t been any indictment of John Podesta too.

    I’m also wondering why there isn’t any noise about Mueller investigating the only proven collusion that has surfaced so far which there are readily apparent criminal ramifications: Hillary and the DNC laundering money through their law firm to pay Fusion GPS to commission British and Russian nationals with ties to foreign intelligence services to manufacture scandalous allegations against Trump to use in the campaign.

    1. What I find interesting is that while Mueller was appointed to look into collusion between the Trump campaign and the Russian government during the election, neither of the two people against whom charges were filed were charged with anything related to the election.

      From what I understand, it would be normal practice to have a cooperating co-conspirator plea guilty to the conspiracy that the remaining conspirators will be charged with to establish the conspiracy.

      Yet, of two persons from the Trump campaign charged so far, one was charged for something that happened more than a decade before and the other for lying to the FBI about something that happened after the election and likely wasn’t illegal anyway.

      1. You evidently aren’t familiar with many prosecutors.

        1. Especially a dirtbag like Wiesmann (sp), who destroyed thousands of people’s lives and then lost at SCOTUS 9-0.

          1. I enjoy watching movement conservatives ditch their authoritarian ‘law and order’ positions whenever a right-wing defendant emerges. It demonstrates vividly the hollow nature of their ostensible principles.

    2. Did his team threaten Flynn with sending his son to jail for wholly unrelated conduct in order to put pressure on Flynn? I know most prosecutors wouldn’t blink an eye at that but it seems unseemly to go to those lengths to get a guilty plea for a process crime.

      In this case I suspect Flynn’s son got away with one because his father had was able to cut a deal.

      Second, did Mueller’s team inform Flynn about the Strzok texting problem before Flynn made his guilty plea? It’s seems like disclosure of a major credibility problem for the most senior FBI agent in the room during Flynn’s problematic interview would be the ethical thing to do.

      Maybe, maybe not, either way it didn’t matter. Mueller dumped Strzok not because he was biased or tainting the investigation, he dump Strzok because it’s a politically sensitive investigation and he wanted to minimize the political ammunition.

      But I’m wondering about why there hasn’t been any indictment of John Podesta too.

      Because he had nothing to do with the investigation. His brother was the one wrapped up in Manafort’s deal.

      Hillary and the DNC laundering money through their law firm to pay Fusion GPS to commission British and Russian nationals with ties to foreign intelligence services to manufacture scandalous allegations against Trump to use in the campaign.

      Because a political campaign hiring a opposition research firm is entirely normal and legal.

      1. Yet op research is the exact reason you claim the Trump campaign colluded with the Russians yet all the evidence points to HRC campaign and DNC including using campaign funds to pay foreign nationals for material.

  6. At present, we don’t know enough to say whether the Mueller team is doing a good, and honest, job or not. In particular, we don’t know whether they have arranged their own investigation of DNC communications and if and how they were hacked. Press reports imply that the FBI and Mueller have been relying on a third party report commissioned by the DNC itself. If so, that would be pretty good evidence that they are not actually investigating Russian attempts to interfere with the election, but are just huntin’ witches in the Trump administration. But press reports are known to be unreliable things, so they may have done a real investigation of the DNC server and we just don’t know about it yet. Presumably we’ll find out eventually.

  7. There are multiple reasons to be suspicious of the investigation’s impartiality.

    1. Charging process crimes. When the very same people investigated Hillary’s illegal use of a private server, (The server itself wasn’t illegal, but the *way* it was used was.) many of the principles interviewed clearly lied to the investigators, in entirely material ways. [i]Not one of them got charged for it.[/i] No effort was made to “flip” them. And it’s quite easy to see how multiple charges could have been brought by an investigator who meant to apply pressure.

    Clearly this investigation is being run in a much more aggressive way. Why?

    2. It’s been determined by looking at public records that Mueller’s staff have donated in excess of 20 times as much to Democratic candidates as Republican. That’s a pretty impressive ratio of Democrats to Republicans to have achieved by accident. Was Mueller deliberately stacking the deck?

    3. Stzok wasn’t demoted/transferred when his bias was discovered, but only when it would have become publicly discover-able.

    4. Refusal to comply with Congressional subpoenas. Whether Mueller likes it or not, Congress actually does have authority to issue binding subpoenas.

    5. There’s at least superficial evidence that the investigation is tainted by FISA warrant abuse and reliance on a known suspect dossier to obtain warrants.

    The investigation could, in the end, turn out to be legit. But facial reasons to suspect bias combined with obstruction is not promising.

    1. I agree that the conduct of the Clinton email investigation looks very different from the conduct of the Trump / Russia investigation, as regards charging decisions and immunities. But though the same FBI officer seems to have been heavily involved in both investigations he was booted out before any charges were made in the Trump / Russia thing.

      The charging decisions have been made by different people. Clinton happened in Comey-Lynch world. The charges in Trump / Russia have happened in Mueller-Rosenstein world.

      1. It’s not clear to me that Strzok is the only commonality between the Clinton and Trump investigations. But I’m sure that Mueller would like him to get blamed for every last bit of bias, leaving everybody else looking clean as the driven snow.

        It doesn’t appear to me that’s likely, given my other points.

    2. Nah, that’s horse shit

    3. 1. Could be that it’s a different prosecuting team. It could be that as-yet undisclosed activity is markedly more serious than classification leakage?maybe they didn’t pursue any process charges in the Clinton investigation because there was scant else to get. The cards aren’t all on the table, here, Brett; you don’t know what Mueller’s team is looking at just by reading the plea agreements.

      2. Do you think the Republicans won’t keep the Democrats honest?

      3. He was fired last summer, immediately after Mueller was informed.

      4. Which subpoenas hasn’t Mueller complied with?

      5. No there isn’t “superficial evidence.” Nor is the dossier “known suspect,” whatever that means.

  8. Where are the examples of “good critiques?” Adler proclaims some are “reasonable” but I am very curious as to what he would regard as a reasonable argument against the manner of the investigation.

  9. Somewhere in the murky mists of several federal agencies that are (apparently) only pretending to be under the control of the new (one year now) presidential administration, exist all of Hillary’s emails. Probably in the form of original NSA recordings or recoveries from her wiped and destroyed devices. Once those cats are out of the bag the real show will begin.

    1. This could be great.

      Raw recordings of Hillary Clinton could emerge, perhaps from Assange, perhaps from Russia.

      The response could demonstrate that Republican FBI agents circulated brutally racist e-mails, or chanted “lock ‘er up” at Trump rallies, before or while working on one investigation or the other.

      Jeff Sessions could bring back the Starr gang and conduct a line-by-line investigation of every Clinton Foundation document that exists.

      Perhaps some torture videotapes or reports will find their way to the Washington Post or New York Times newsroom. (With a federal judge or two involved?).

      Could a painstaking investigation of Melania Trump’s immigration adventures be on our horizon?

      Maybe we’ll get to see a dodgeball game between Clinton’s female accusers and Trump’s female accusers.

      (Bonus for Democrats: Bill and Hillary appear to be finished politically, but the Trumps have at least a bit of time left on the current stage.)

      Anyone who wishes to destroy public confidence in American institutions, such as the FBI, must enjoy this.

  10. Wow, way to ignore the smoking gun people. If a judge is removed for having a conflict of interest, do they go on to judge other cases? Of course they do. In fact, if having a conflict of interest or an appearance of bias in just a particular case happens anywhere and the person is otherwise good, they just get removed from that conflict and continue on with their job.

    What was Strzok’s job? FBI counterintelligence expert. Where is Strzok checking in to work today? According to ABC, since last summer, he’s been working in FBI HR. Do you have to launch fireworks to make it even more clear that this is not a simple case of an appearance of conflict of interest?

    Peter Strzok, if he’s clean but was caught being a little too enthusiastic for Hillary, should today be protecting the nation against terrorists. He’s not. Something stinks.

    1. Is there any scenario involving Strzok that would have led you to believe that nothing stinks?

      Consider the alternatives. Strzok stays on the investigation. Something stinks. Strzok is moved to another role within his expertise but off the investigation. Why is he being treated with kid gloves? Why remove him if he could still do his job? What are they hiding? Something stinks. Strzok is moved to HR. Something stinks. Strzok is fried outright. Something stinks.

      You idiots are being played by a selfish idiot and a team of propagandists who know that your idiocy makes you eminently manipulable in a broader plan to tear down American institutions, expand power, and enrich themselves. The very same FBI that cast a cloud over the Hillary campaign is now being described by the fascists-in-waiting as corrupt to its core, with no evidence besides A SERIES OF TEXTS FROM ONE GUY and political contributions to a candidate WHO WON THE POPULAR VOTE. This is simply insane.

      1. Up is down. Black is white. Only the most cynically partisan political party is non-partisan enough to conduct political investigations. These things are known.

  11. I think most if not all of the concerns that millions of people have about the fairness of the Mueller investigation would be assuaged if it were made clear somehow that 1) the dossier was not used to secure the warrants for Trump or anyone on his team, and/or as a vehicle – dare I say a set-up- to open a Federal investigation of then candidate Trump and 2) who made the call to let Hillary and her various assistants talk to the FBI but not under oath? I think answering these two questions would convince many people the FBI is at least attempting to clear the pipelines of misinformation and bad decisions

    1. Mostly, these are the same folks who were dead-enders on Benghazi and Obama’s birth certificate. I see little reason to expect a different trajectory here regardless of evidence.

    2. What if the dossier was used?

      Many bits of it have been verified

      1. Standard propaganda technique: Mix innocent true bits with guilty false bits, and expect people to say, “Aha, they were serving tomato soup as the soup of the day that Tuesday, he must be guilty of murder after all!”

        And ignore that no evidence was put forward concerning the murder.

        1. It’s being independently investigated.

          Surely you don’t believe that if the original police complaint alleging that you murdered someone had no foundation, you’re immune from prosecution, even if, unbeknownst to the complainant, you did, in fact, kill the victim.

          1. It’s the “did, in fact, kill the victim” bit that’s lacking evidence here.

            1. That’s? why we have an investigation.

  12. I miss the like button

    1. I miss the ignore Arthur button.

      1. I think Arthur is going to find it different at free-thinking Reason versus the trained parrots at the WaPo

        1. How do you expect the (non-Somin) Conspiracy’s faux libertarianism, and the right-wing authoritarianism of the Conspiracy’s movement conservative fans, to fare at Reason.com?

          Thank you.

          (So far, the main change appears to be the proprietor’s censorship of comments.)

  13. Except the insurance being discussed was NOT charging and exonerating Hillary Clinton when she had undoubtrdly violated criminal law in the handling of classified information. The insurance policy was bought by Comey clearing her. If she were indicted, then Trump surely wins.

    They thought thus would make sure she won. They almost made it work. But they were too clever by half.

    1. If she were indicted, then Trump surely wins.

      And when she wins, she surely owes them.

  14. “Mueller’s appointment was heralded when it was made”

    Ah the passive voice. Who were the people doing the heralding? Same ones who don’t see any problem now. Herr Mueller has a perception problem because the people outside the swamp have a different perspective than those inside it about the people he chose to surround himself with.

    All together now: Hark the herald angels sing . . .

    1. Republicans, Asshole. Bunch of them

      https://twitter.com/RepRubenGallego/
      status/941340463017201664

      1. Nice citation, moron. Gallego, D-Swamp

        1. The quotes, you douche. They are all verifiable

  15. This is the equivalent of saying

    While Adler is capable of being a racist, people miss the point.
    Yes, it is possible that Spencer and he might have been in Virginia at the same time, but that usually is insufficient

    Having a Tiki torch is not white supremacy. so far. there is no evidence that Adler has been a racist

  16. Mueller’s appointment may have been “heralded” at the time, but it was done by the same swamp creatures we’re trying to eliminate. Now, nearly a year later, as we’re seeing the politicization of the FBI & DoJ that took place under Mueller and Comey, the star doesn’t shine quite as brightly.

    1. There had been very little turnover at the (historically right-leaning) FBI in the past year. The idea that it’s gone from a fundamentally conservative, and strongly pro-government, institution to a subversive, liberal one in 10 months is delusional.

      1. How about in eight years?

  17. The corruption is proven by the FBI senior leader’s refusal to revise himself. HE knew what was in the texts all along.

    It’s clearly a conflict he hid from his superiors and from Congress.

    1. He *was* removed. His superiors almost certainly reviewed everything he did, and everyone will be able to check their ultimate conclusions for bias.

      The idea that if even a hint of bias is discovered, the entire investigation must be halted, burnt to the ground, and then reconstituted from scratch would make it impossible for government to function. Even if an investigator doesn’t care for the person he’s investigating (and, BTW, the same investigator also sent texts critical of Hillary), he can still investigate impartially.

      Or are you incapable of imagining honestly reaching a conclusion that you’d prefer not to reach?

      1. He was removed months after he should have recused himself. This means he hid his misconduct for months until he was caught, by the IG.

        Then the fact of his removal was not disclosed for four more months.

        These are both unethical acts.

        Unethical acts by law enforcement used to bother lefties.

  18. Recuse.

    1. While on the topic of recusing oneself, does anyone besides me think it’s odd that Judge Contreras recused himself after, but not before he accepted Flynn’s plea?

      1. Would another judge have refused Flynn’s plea?

  19. Moving to Reason has resulted in the comments section being overrun by right-wing cranks who are intravenously attached to Fox News and seem free of the need to cite facts. Why can’t you go back to having your independent blog?

  20. The test I want to apply is this: would a fair and reasonable person conclude that FBI agents and Justice Department lawyers treated Hillary Clinton, her associates, and all involved Democrats with the same vigor, zeal, and thoroughness that they subsequently treated the Trump team. Did those “professional” investigators probe the convoluted and in places fantastic email story with true due diligence, or was there a hurry to offer immunity to critical insiders and to ignore leads and questions that begged to be asked?

    A reasonable person might well conclude that anecdotal evidence galore exists to indicate that the questioning and looking into matters when it involved Hillary was intrinsically reluctant, even apologetic in nature. The prosecutorial zeal for going after the Trump people is more like a well organized and planned determination to burn them at the stake.

    We know that the same FBI agents and lawyers who kept the heat off Hillary went after Trump allies with blowtorches.

    Nothing new about this, either. Ask Scooter Libby and Dinesh D’Souza how lefty prosecutors with major media and political support can ruin anyone in any sufficiently thorough investigation, given the plethora of laws and interpretations of regulations anymore. They can also cover up, ignore, and excuse the most blatant transgressions of their ideological pals.

    1. I guess it’s natural that movement conservatives are such whiners . . . the only Americans persecuted more than right-wingers are the white, straight evangelicals.

    2. Clinton almost certainly lost because of a letter the Director of the FBI sent to Congress, which he essentially withdrew a week later (Clinton lost 3 points in the polls, almost overnight, and there’s otherwise no reasonable explanation for such an abrupt, dramatic swing). To claim that the FBI was in the bag for Clinton is just bizarre; the FBI cost her the presidency.

  21. The investigation is tainted more by what it chooses to investigate, and chooses not to investigate. Manafort’s lobbying and money crimes from many years ago, unassociated with anything relevant to the 2016 election? That’s investigated. Numerous illegalities on the production and use of the “Trump Dossier” to lie to the FISA court and obtain wiretaps on the GOP campaign? Not investigated. Flynn “lying” to the FBI? Prosecuted. Conspiracy to pervert the course of justice re: the Hillary E-mail scandal, including “special procedures” never used before, to interview Hillary with no transcript, no recording, and not under oath, and exonerate her even prior to the interview: Not investigated. Mueller can go wherever he wants (as the Manafort case shows). He is choosing not to go anywhere that might implicate a Democrat principal, or for that matter, one of his team. It’s the same as for newspapers: bias is often more effectively deployed in choosing what NOT to report, than in slanting the coverage of what IS reported.

    1. The best right-wing whining is uninformed right-wing whining.

  22. “there is no reason to believe the investigation is tainted or that it has become a political witchhunt.”

    This whole charade BEGAN as a political witchhunt! Name me hust ONE other instance in which a Special Prosecutor was appointed to investigate conduct – “collusion between the Trump Campaign and Russia” – for which: (a) there was not a scintilla of credible evidence, and (b) which did not violate any criminal statute? The Mueller Investigation was begun as simply a political sop to the idiot Resisters, when they SHOULD have been told to STFU and grow up.

  23. I hadn’t read that Alabama amicus brief before. I wish all elected officials were as forthright about situations where they agree with the policy, but dagnabbit it’s still unconsitutional.

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