What’s the legal basis for his special-counsel investigation? We have a right to know.
For precisely what federal crimes is the president of the United States under investigation by a special counsel appointed by the Justice Department?
It is intolerable that, after more than two years of digging — the 16-month Mueller probe having been preceded by the blatantly suspect labors of the Obama Justice Department and FBI — we still do not have an answer to that simple question.
Deputy Attorney General Rod Rosenstein owes us an answer.
To my mind, he has owed us an answer from the beginning, meaning when he appointed Special Counsel Robert Mueller on May 17, 2017. The regulations under which he made the appointment require (a) a factual basis for believing that a federal crime worthy of investigation or prosecution has been committed; (b) a conflict of interest so significant that the Justice Department is unable to investigate this suspected crime in the normal course; and (c) an articulation of the factual basis for the criminal investigation — i.e., the investigation of specified federal crimes — which shapes the boundaries of the special counsel’s jurisdiction.
This last provision is designed to prevent a special counsel’s investigation from becoming a fishing expedition — or what President Trump calls a “witch hunt,” what DAG Rosenstein more diplomatically disclaims as an “unguided missile,” and what Harvard’s Alan Dershowitz, invoking Lavrentiy Beria, Stalin’s secret-police chief, pans as the warped dictum, “Show me the man and I’ll show you the crime.” In our country, the crime triggers the assignment of a prosecutor, not the other way around.
Trump Makes It Hard to Defend Trump
Sound reasons undergird the regulations. If a Democrat were in the White House, we would know them by heart at this point. Republicans once knew them well, too. That was before Donald Trump’s character flaws had them shrugging their shoulders, resigned that he deserves to be investigated whether he committed a crime or not.
Yet, the rationale for the regulations relates to the presidency, not to the man or woman who happens to occupy the office at a particular time. It is too debilitating to the governance of the United States, to the pursuit of America’s interests in the world, for us to permit imposing on the presidency the heavy burdens of defending against a criminal investigation unless there is significant evidence that the president has committed a serious crime.
As illustrated by this week’s hearings on the Supreme Court nomination of Brett Kavanaugh, Democrats are too Trump-deranged in this moment to recognize their interest in avoiding a prosecutor’s cloud over future Democratic administrations. (Of course, they probably calculate that no Democratic attorney general would appoint a special counsel, no matter the evidence, and that the media would compliantly play along.) It is therefore up to Republicans to respond to the damage being done to the office. This can be hard to do.