https://www.nationalreview.com/politics-policy/The special counsel is going to keep digging until Trump stops this.
I t’s a new year with a new Congress, but it’s the same question: When is Special Counsel Robert Mueller going to file his much-anticipated final report?
My 2018 answer was: When he’s good and ready.
I have a caveat for 2019, though: Maybe when President Trump stops giving him additional reasons to keep digging.
Don’t get me wrong. I am reasonably confident that the bottom line will be that there is no criminal collusion case. That is, the original rationale for the investigation that the FBI commenced during the 2016 presidential campaign and that Mueller inherited in 2017 — pretextually opened as a counterintelligence investigation but conducted as a criminal investigation in search of a crime — is a dry hole: There was no conspiracy between the Trump campaign and the Kremlin to commit cyber-espionage against Democratic email accounts. Putin did not “hack the election.” If there had been a collusion conspiracy, the indictments Mueller has filed would look very different; the potential witnesses would have pleaded guilty to a collusion conspiracy — and they’d be preparing to testify against the president, not being sentenced for lying to the FBI.
Unjustified Appointment
It also remains true that there was no justification for Mueller’s appointment. The FBI was formally conducting a counterintelligence investigation. In the Justice Department, counterintelligence investigations do not have a prosecutor assigned; the point is not to prosecute but to collect information about a foreign power. In counterintelligence, if the FBI needs assistance in getting surveillance warrants from the FISA court, lawyers in the Justice Department’s National Security Division handle that. There is no need for a prosecutor — not just for a special counsel but for any prosecutor at all — unless concrete evidence emerges that gives rise to good-faith suspicion that a crime has been committed.
Moreover, there is no need for a special counsel (a creature of federal regulation) in the absence of a conflict of interest with respect to the suspected crime — a conflict so profound that DOJ is ethically incapable of investigating the matter. Here, there was no crime and no conflict. The FBI, aided by DOJ’s National Security Division, could easily have conducted an aggressive investigation of Russia’s interference in the 2016 election — and were doing so before Mueller’s appointment, even after Attorney General Jeff Sessions recused himself.