RUTHFULLY YOURS

President Trump now has real legal peril. The potential jeopardy stems from the investigation that came to light this week when the FBI conducted raids on the office and residences of his lawyer and self-professed “fixer,” Michael Cohen.

I’ve never thought “collusion with Russia” posed jeopardy. If there had been anything criminal to that storyline, the politicized anti-Trump factions in the intelligence and law-enforcement agencies would have leaked it. And, notwithstanding Trump’s nauseating nods to Putin, the administration has taken enough aggressive steps against Russia that it is past time for the Kremlin to broadcast the big kompromat file if it exists.

I’ve also never thought Special Counsel Robert Mueller’s other known angle, obstruction, posed a great risk. There is a line between foolishness and crime. For important policy reasons, a president should not weigh in with the FBI director on the merits of investigating a friend and political ally; and it would be better if he did not make personnel moves that could be perceived as efforts to influence witnesses or affect the course of an investigation. But as long as a president’s actions — e.g., firing the FBI director, discussing the possibility of pardons — are on their face legal and within his legitimate constitutional authority, I do not believe they can validly predicate an obstruction prosecution. (In theory, they could be grist for impeachment, which involves a political inquiry into abuse of power, not a legal proceeding to establish the essential elements of a statutory crime.)

The matter now under investigation by the FBI and federal prosecutors in the Southern District of New York (SDNY), however, is a very live criminal investigation. Anyone potentially connected to it should be worried.

Much of the commentary about the SDNY investigation puts the cart before the horse. When Cohen’s law office, hotel residence, and home were searched pursuant to court-approved warrants this week, there were howls about a purportedly unconscionable violation of the attorney–client privilege. As I pointed out in the aftermath, however, whether this was an egregious constitutional affront or textbook investigative rigor depends on (a) exactly what was under investigation and (b) whether the materials sought from Cohen were, in fact, privileged attorney–client communications.

Apparently Jim Comey’s FBI had in its leadership an official even more self-serving than the director. His name is Andrew McCabe, and a report released Friday from the Justice Department’s inspector general confirms that Mr. McCabe was fired for leaking to a Wall Street Journal reporter to “advance his personal reputation at the expense of Department leadership”—and then lying about it.

The IG report contradicts the accounts put forward by Mr. McCabe and his wife, Jill, at the time he was sacked on March 16. In separate op-eds for the Washington Post, Andrew McCabe and Jill McCabe each played the Trump victim card. Mr. McCabe said that “divisive politics and partisan attacks” played a role in his firing. Dr. McCabe blamed “the president’s wrath.”

The IG report makes clear that Mr. McCabe was fired for good reason: because he leaked information to the press, and then he denied it to investigators. The IG concludes he was guilty of “lack of candor” multiple times, sometimes with a lawyer present, and at least three times under oath. And though he would later change his story, he did so only when he knew the IG was closing in on the truth.

The IG says Mr. McCabe even lied to and about Mr. Comey, who was then FBI director. He lied to him when he denied knowing who had leaked the information about an investigation into the Clinton Foundation the director had refused to confirm even to Congress. And Mr. McCabe lied when he told investigators he had told Mr. Comey what he had done.

For a man who claims to be all about the bureau, perhaps the IG’s most damning line is the one noting that “no other senior FBI official corroborated McCabe’s testimony that, among FBI executive leadership, ‘people knew that generally’ he had authorized the disclosure.”

On April 7, 2015, these columns said the next Republican President should pardon I. Lewis “Scooter” Libby “in his first week in office.” President Trump waited a little longer, but in pardoning the former chief of staff to Dick Cheney on Friday Mr. Trump rectified a legal injustice and corrected one of George W. Bush’s worst decisions.

Above all, Mr. Trump pardoned an innocent man. In an op-ed nearby, David Rivkin and Lee Casey recount the story of Mr. Libby’s unjust prosecution amid the political uproar over the leak of the name of CIA employee Valerie Plame. Special counsel Patrick Fitzgerald never did prosecute the leaker, who was Deputy Secretary of State Richard Armitage. But in his zealous pursuit of Mr. Cheney, Mr. Fitzgerald railroaded Mr. Libby for lying to the FBI based in large part on the testimony of former New York Times reporter Judith Miller.

Ms. Miller says she testified truthfully at the time, but she later concluded based on new information that she had been led into false testimony by Mr. Fitzgerald. As the White House press secretary said Friday in a pardon statement: “In 2015, one of the key witnesses against Mr. Libby recanted her testimony, stating publicly that she believes the prosecutor withheld relevant information from her during interviews that would have altered significantly what she said.”

Mr. Fitzgerald had called her testimony “critical” to the case in his summation for the jury, and Ms. Miller says that the prosecutor twice said that he would drop all charges against Mr. Libby if he offered evidence against Mr. Cheney. Mr. Libby had no evidence to trade, and Mr. Fitzgerald then set out to ruin Mr. Libby for supposedly lying about a non-crime.

Andrew McCabe, onetime acting FBI director, leaked a self-serving story to the press and later lied about it to his boss and federal investigators, prompting a stunning fall from grace that ended in his firing last month, says a bombshell report released Friday by the Justice Department’s internal watchdog.

Inspector General Michael Horowitz, appointed by President Barack Obama, had been reviewing FBI and DOJ actions leading up to the 2016 presidential election.

The report, handed over to Congress on Friday and obtained by Fox News, looked at a leak to The Wall Street Journal about an FBI probe of the Clinton Foundation.

The report says that McCabe authorized the leak and then misled investigators about it, leaking in a way that did not fall under a “public interest” exception.

“[W]e concluded that McCabe’s decision to confirm the existence of the CF investigation through an anonymously sourced quote, recounting the content of a phone call with a senior department official in a manner designed to advance his personal interests at the expense of department leadership, was clearly not within the public interest exception,” the report says.

McCabe was fired from his role as FBI deputy director last month by Attorney General Jeff Sessions just days before he would have been eligible for a lifetime pension after it was determined that he misled investigators reviewing the bureau’s probe of Hillary Clinton’s email server.

Fire Mueller. Pass a law so Trump can’t fire Mueller. Meanwhile, let’s impeach Rosenstein and Wray.

There’s a lot of dingbattery going around.

Elementary Constitutional Principles
In our system, we have a unitary executive. All executive power is vested in a single official, the president of the United States. That means subordinate executive officers do not have their own power; they are delegated to exercise the president’s power. When they act, they are, in effect, the president acting.

Let’s say you are exercising your own power, and you do something that I disagree with but that is within the bounds of reason. I have no choice but to respect the exercise of your discretion. But if you are exercising my power, which means that I am accountable for your actions, it is my way or the highway. And I don’t need a reason to dismiss you; I get to do it simply because I’d rather have somebody else exercising my power. I don’t need cause, and I don’t need to explain myself.

That is how it is with the president. It’s his power. On this, the Constitution imposes only one notable limitation: The chief executive is not permitted to hire top executive officers at will; they must be confirmed by the Senate. Once they are confirmed, though, he may fire them at will.

Prosecutorial power is executive in nature. Federal prosecutors therefore exercise the president’s power. Deputy Attorney General Rod Rosenstein and Special Counsel Robert Mueller have no power of their own; they exercise President Trump’s prosecutorial power for as long as that arrangement suits President Trump. The president does not need cause to fire them. He does not need to explain any dismissal to Congress — “Gee, it’s Thursday and I feel like firing someone” is good enough.

If lawmakers believe the president is abusing his power by firing good public servants arbitrarily, they can impeach the president. Or they can try to bend the president into better behavior by cutting off funding, refusing to confirm nominees, or holding oversight hearings that embarrass the administration. Congress has these powerful political tools. But it does not have legal means to usurp the president’s constitutional power. Those powers do not come from Congress. They come from Article II. The Constitution cannot be amended by a mere statute or a regulation. Congress may not enact a law that purports to place conditions on the president’s power to dismiss subordinates who exercise his powers.

Among the many occasions of unintended comedy that the election of Donald Trump has vouchsafed a grateful world, perhaps none is more comic than that huddled mass of garrulous disappointment calling itself “The Resistance™.” Hillary Clinton had hardly got outside her last goblet of Chardonnay in the wee hours of November 9, 2016 before “the resistance party,” a “grassroots movement fighting against the hateful and authoritarian agenda of Donald Trump and the radical right,” was infesting the internet. Mrs. Clinton herself waited until May 2017 to announce her new political organisation aimed at funding “resistance” groups that are “standing up to President Donald Trump.” Media pundits across the country warned their audiences against “normalising” the President. “Trump is not a legitimate President,” screamed one typical member of the fourth estate, “Normalising fascism, the marriage of authoritarianism and nationalism with a business controlled government, is wrong.”

You can understand their anguish. Someone they did not favor was elected president of the United States in a free, open, democratic election. Can you believe it? Their candidate lost. Even worse, the opposing candidate was elected without their permission, over their strenuous objections, unremitting ridicule, and against their hermetically sealed certitude that such a thing was impossible, impossible! O tempora, O mores! The 2016 presidential election worked the way the Constitution said it was supposed to work, not the way Hollywood millionaires, Ivy-educated pundits, angry feminists, or partisan opponents wanted it to work. Clearly, end times are nigh.

No wonder the Resistance™ is so voluble and tenacious. Just a couple of days ago the comedy site Vox, reporting on the many rallies against President Trump that continue to provide free entertainment at college campuses and other redoubts of privilege across the country, noted that “While the rallies people are attending may not always be Trump-specific, they are certainly Trump-related.” Indeed they are.

In the early seventies, political operatives disguised as delivery men broke into a Washington D.C. office. These efforts to spy on the political opposition would culminate in what we know as Watergate.

In the late teens, political operatives disguised as FBI agents, NSA personnel and other employees of the Federal government eavesdropped, harassed and raided the offices of the political opposition.

The raids of Michael Cohen’s hotel room, home and office are just this week’s Watergate.

Political operatives have now seized privileged communications between the President of the United States and his lawyer. Despite fairy tales about a clean process, these communications will be harvested by the counterparts of Peter Strzok, who unlike him are still on the case at the FBI, some of it will appear in the Washington Post and the New York Times, and some will be passed along to other political allies.

That’s what happened at every juncture of Watergate 2.0. And it only follows that it will happen again.

Just like the eavesdropping, the process will be compartmentalized for maximum plausible deniability. The leakers will be protected by their superiors. The media will shrilly focus the public’s attention on the revelations in the documents rather than on the more serious crimes committed in obtaining them.

Nixon couldn’t have even dreamed of doing this in his wildest fantasies. But Obama could and did. Now his operatives throughout the government are continuing the work that they began during his regime.

Following the FBI’s shocking raid Monday at the home, office, and hotel room of President Trump’s personal lawyer, Michael Cohen, Republican lawmakers are rallying behind the still-unjustified investigation into whether Trump’s campaign colluded with the Russian government to influence the 2016 presidential election. (Like just about everything else the probe has produced so far, the Cohen matter appears unrelated to anything Russian.)

Senators Thom Tillis (R-N.C.) and Lindsey Graham (R-S.C.) will partner with Senators Chris Coons (D-Del.) and Cory Booker (D-N.J.) to introduce legislation that would protect Special Counsel Robert Mueller if Trump fires him. The bill would give Mueller a 10-day window to “seek expedited judicial review of a firing.”

GOP leaders offered their verbal support: Senate Judiciary Committee Chairman Charles Grassley (R-Iowa)—whose committee is investigating possible misconduct into how the Obama Justice Department obtained a FISA warrant to spy on the Trump campaign—said it would be “suicide for the president to want, to talk about firing Mueller.” Senator John Cornyn (R-Texas) warned “the consequences of [firing Mueller] are some that not even the president can anticipate. And I think it would be a mistake.”

NeverTrumpers, who fantasize about Mueller hauling the president out of the White House in handcuffs, have formed yet another group to solidify congressional support for the special counsel. On Wednesday, “Republicans for the Rule of Law” aired an ad during “Fox and Friends”—Trump’s must-watch morning program—that touted Mueller’s credentials and urged viewers to call their representatives to demand they “protect the Mueller investigation.” (The ad conspicuously did not mention Trump-Russia election collusion, the crime Mueller was hired to investigate in May 2017.)

Republicans for the Rule of Law is led by Bill Kristol, editor-at-large of The Weekly Standard, and NeverTrump’s de facto leader. Kristol has the opposite of the political Midas Touch: Everything and everyone he promotes—from the Iraq War to Sarah Palin to Evan McMullin—are losers. So it’s unsurprising that Kristol’s latest effort again misses the mark.

Robert Mueller was appointed special counsel in May 2017 in reaction to a media still gripped by near hysteria over the inexplicable defeat of Hillary Clinton in the 2016 presidential election.

For nearly a year before Mueller’s appointment, leaks had spread about collusion between Russia and the Donald Trump campaign that supposedly cost Clinton a sure victory.

Most of these collusion stories, as we now know, originated with Christopher Steele and his now-discredited anti-Trump opposition file.

After almost a year, Mueller has offered no evidence that Trump colluded with the Russians. Aside from former Trump campaign chairman Paul Manafort, a few minor and transitory campaign officials have been indicted or have pleaded guilty to a variety of transgressions other than collusion.

Ironically, the United States has often interfered in foreign elections to massage the result. Recently, Bill Clinton joked about his own efforts as president to collude in the 1996 Israeli election to ensure the defeat of Benjamin Netanyahu. “I tried to do it in a way that didn’t overtly involve me,” Clinton said.

The Obama Administration did the same in 2015, when it used State Department funds to support an anti-Netanyahu political action group.

Since Mueller’s investigation began, a number of top FBI and Department of Justice officials have either retired, or were reassigned or fired.

With the exception of former FBI Director James Comey, all left their jobs due to investigations of improper conduct that took place during the 2016 election cycle. Most were under a cloud of suspicion for lying, having conflicts of interest or misleading investigators.

Mueller is reaching the crossroads of his investigation and faces at least four critical decisions.

Senator Thom Tillis (R., N.C.) criticized Mark Zuckerberg Tuesday for omitting information related to the Obama reelection campaign’s exploitation of user data in a statement the Facebook CEO prepared prior to his Congressional testimony.

The two-day hearing was prompted by reports that the Trump-linked data firm Cambridge Analytica improperly obtained 87 million Facebook users’ data. As a result, Zuckerberg’s prepared statement, which doesn’t include any information about data breaches between 2007 and 2013, focused primarily on that recent breach, as did the questions he faced in Congress.

Breaking from the pack, Tillis recommended that Zuckerberg “expand” his “timeline” while addressing the issue of data protection to include the 2012 Obama campaign’s similar data-exploitation scheme, which officials openly bragged about to widespread adulation in the press.

“When you do your research on Cambridge Analytica, I would appreciate it if you would start back from the first high-profile national campaign that exploited Facebook data,” Tillis said.

The North Carolina lawmaker then cited a former Obama campaign staffer’s tweet, which was sent after the Cambridge Analytica scandal broke, and recounted how Facebook employees were surprised by the breadth of user data the campaign was able to scrape, but let them continue to do so because of their shared political leanings.

“I also believe that that person who may have looked the other way when the whole social graph was extracted for the Obama campaign, if they are still working for you, they probably should not,” Tillis scolded. “At least there should be a business code of conduct that says that you do not play favorites. You are trying to create a fair place for people to share ideas.”