RUTHFULLY YOURS

Swamp Things in the Russia Investigation

“The Swamp” usually refers to the vast federal bureaucratic machinery of mostly unelected top officials who exercise influence and power without worry about the appearance of conflicts of interest. They are often exempt from the consequences of the laws and regulations that affect others. The chief characteristics of the swamp are the interlocking friendships, business relationships, marriages and partnerships in Washington, and their immune response against anyone who challenges them.

Robert Mueller’s investigation into alleged collusion between Russia and Donald Trump’s presidential campaign has proven the locus classicus of a dysfunctional and highly incestuous Washington culture—so much so that it borders on being a caricature of a Washington investigation.

The Origins of the Robert Mueller Appointment
How did it come about? Mueller’s acquaintance, former FBI Director James Comey (Mueller and Comey were lauded dating back to the Bush Administration as “brothers in arms”), has testified that he was so exasperated with the president that he leaked his own confidential and likely classified memos of presidential meetings to the press via a friend in order that it “might prompt the appointment of a special counsel.” It certainly did that. And mirabile dictu, the special counsel was soon none other than Robert Mueller with whom Comey had had a professional relationship in a variety of contexts for nearly 20 years. At some point, will one of Mueller’s staff have to depose him to ask whether he ever discussed the possibility of a special counsel appointment with Comey prior to Comey’s firing?

Will Mueller need to investigate Comey for leaking what may have been a classified memo and thus a likely felonious act? If the investigation touches upon the strange exemptions granted Hillary Clinton in the Uranium One scandal, will Mueller investigate his own prior investigation—a Mueller v. Mueller special counsel probe? Is the U.S. legal community so impoverished in former federal attorneys that we cannot find special counsels without any prior relationships with those knee-deep in the proposed investigations? Is there one former prosecutor in Washington who is not somehow involved in these scandals?

Lisa Page and Peter Strzok
The two FBI investigators had a long-concealed amorous relationship characterized by an overriding antipathy for Donald Trump and a desire to ensure that he was not elected president or, barring that, did not prove a successful president. Strzok interviewed Michael Flynn, Huma Abedin, and Cheryl Mills. Both Page and Strzok communicated concerning the “insurance” idea that might suggest efforts to stop Trump’s election or thwart his presidency, with deputy director Andrew McCabe.

When the inspector general released evidence of their prejudices and romantic involvement, they were dismissed. But Mueller apparently did not announce exactly why they were taken off his investigation. Their staggered departures were reported in the press as normal reassignments and not as connected, as if to inform the public why they were leaving would somehow not be in the Mueller investigation’s interest.

Will Page at some point be deposed about Strzok’s behavior or vice versa? Would she or he plead paramour privilege?

Andrew McCabe
The former deputy director of the FBI should never have been assigned to the Clinton email scandal and should have had no further assignments into anything tangential to charges of Russian-Trump collusion. His wife was once a candidate for statewide office in Virginia and a recipient of large amounts of money (sometimes reported as $670,000) from a Clinton-related PAC.

Yet from the Page-Strzok archive, McCabe was a likely anti-Trump partisan. His presence in any investigation involving either his wife’s patron Clinton or Clinton’s campaign rival Trump should never have been permitted and should be seen as suspect.

Rod Rosenstein
Rosenstein never should have been allowed to appoint the special counsel Robert Mueller. Barring that, he long ago should have recused himself from all matters relating to the Mueller investigation. Rosenstein while in the Obama Department of Justice was once a supervisor of the highly controversial Uranium One investigation headed by then FBI Director Robert Mueller—an investigation that may be revisited by or is currently connected with efforts to find Russian collusion with American elected or appointed officials.

Rosenstein signed on behalf of the Obama Justice Department at least one of the surveillance requests to a FISA court, an application currently under a cloud for allegedly not disclosing the unverified nature of the Steele dossier, the departure of Steele from FBI associations, or the circular nature of news accounts concerning the dossier. Will Mueller at some point reexamine the nature of the FISA applications and thus the official who appointed him?

The Team
At least four of the Mueller team worked as lawyers at the Washington law firm of WilmerHale. Robert Mueller should never have recruited so many of his former associates. Some of them may be investigating former Trump campaign chairman Paul Manafort, Trump’s daughter Ivanka and Jared Kushner, the president’s son-in-law, who are also supposedly represented by WilmerHale attorneys. Of the initial 15 appointed lawyers, at least seven are known to have contributed money to the Democratic Party or to Hillary Clinton or both.

In such a politicized investigation, would it have been difficult to find greater diversity, either defined by geography, ideology, or former employment? Will a Clinton cash supporter soon be deposing a former Trump campaign official, or will one former WilmerHale attorney be in court facing another former WilmerHale colleague?

Andrew Weissmann
Weissmann should never have been appointed to the Mueller team. He is another former partner at WilmerHale where Mueller worked, and had emailed applause to Obama DOJ holdover Sally Yates, when as an Obama holdover acting attorney general, she tried to block her then boss’s President Trump’s targeted immigration moratorium. Like other Mueller team members, Weissmann was a donor to Democratic causes and a Hillary Clinton partisan. The idea that he can investigate Trump, after donating and patronizing his political opponent and applauding renegade efforts to block his executive orders, is not credible. Sally Yates reportedly cosigned one of the FISA court requests to monitor Trump campaign associates; if the duplicity surrounding those applications becomes an issue, will Weissmann then recalibrate his former high-five for Yates as he investigates her?

Associate Deputy Attorney General Bruce G. Ohr
He may be the most conflicted of all government attorneys associated with past and present investigations. Ohr had met with the architects of the fusion GPS dossier and likely did not disclose that meeting to his superiors. His wife, a Russian expert, was hired by Fusion/GPS to help find damaging information about Donald Trump—a fact Ohr deliberately and likely unlawfully hid on a federal disclosure form. Whom did Bruce Ohr talk to about Fusion/GPS and to what degree did he interact with Rosenstein, Comey, or the authors of the FISA court requests? Almost any interaction with Ohr that pertains to Fusion GPS and the Mueller investigation is now the fruit of a poisoned tree. At some point would Ohr have been consulted about Ohr co-produced research?

Aaron Zebley
He was Mueller’s chief of staff while Mueller was FBI director, and yet another former partner at WilmerHale. In the past, Zebley had represented Justin Cooper, who has testified that he set up Hillary Clinton private server and then destroyed with a hammer some of Clinton’s mobile devices, when there was already investigatory interest in their contents. Indeed, the Clintons’ email server in question—the domain clintonemail.com—used by Hillary Clinton was in fact registered to Cooper himself, not to Bill or Hillary Clinton, while she was secretary of state.

To reiterate: Mueller selected a lawyer to help investigate Trump who had recently defended a former Clinton aide in the midst of the Hillary Clinton scandal. Was the idea that Zebley could always plead attorney-client relationship if his own investigation butted up to matters of the Clinton email scandals? Would Zebley at some point have deposed his former client?

Jeannie Rhee
It might be one thing to have one member of a team investigating Trump who had represented an employee or foundation of the Clintons, but quite another with two incidents. Yet Rhee—another WilmerHale alumna, and another sizable contributor to the Clinton campaign—was yet another attorney who had represented someone deeply involved in a recent Clinton scandal.

She had recently been hired not only by the Clinton Foundation but also by Obama Deputy National Security Adviser Ben Rhodes during the investigation of the 2012 Benghazi terrorist attack and its relationship to the Clinton tenure as secretary of state. If the Mueller investigation turns to the areas involving the misuse of FISA court-approved surveillance and improper unmasking and leaking of the names of American citizens, will Rhee depose her former client Rhodes? Will she advise Mueller about the nature of the Clinton Foundation she defended if the matter of his own past investigations of Uranium One-associated donations to the foundations arises.

Mueller Keeps Feeding the Beast
A special counsel investigation is by nature an object of singular scrutiny. Fairly and not, it is constantly subject to charges of partisanship, and government pressure. It was the duty of Robert Mueller to appoint attorneys who were not just immune from charges of conflict of interest but exempt from the very thought of charges of conflict of interest—as well as recusing himself and his attorneys from any past associations that might have conflicted with his own investigations. He knew from his original directive that he had latitude to pursue any illegality that arose from his collusion investigations; he has just done that in the tangential matters of alleged tax and lobbying crimes. He may likely have to again when he collides with defective FISA court requests, illegal unmasking and leaking of surveilled citizens, past Russian collusion in the Uranium One and Fusion/GPS Steele dossier, and obstruction of justice concerning the Clinton emails.

Instead of preempting these conflicts of interests, he has managed to feed a veritable beltway octopus whose tentacles are so deeply wrapped around the players and financing of the 2016 campaign, the dubious FISA court applications, a Washington blue-chip legal firm on both sides of the current collusion allegations, and the assorted past scandals of Hillary Clinton from Uranium One to the email debacle, that if it had not earned legitimate criticism, it would have had to be invented.

It is the Washington habit to praise Mueller for his unquestionably sober and judicious legal career and long and admirable public service. The giddy media has nonstop fed the public the stunning resumes and often past patriotic sacrifices of his legal team. All that is a fine and noble thing. But local attorneys in Boise, prosecutors in Memphis, and FBI investigators in San Jose know how to avoid the appearance of conflicts of interest.

The Mueller team either does not or believes in its case it simply doesn’t matter.