RUTHFULLY YOURS

One of Washington’s favorite games is afoot and the rumor mill is running hot with names of potential replacements for FBI Director James Comey.

In hard news, the association representing FBI agents has endorsed former Rep. Mike Rogers for the position. Rogers is a former special agent at the bureau, well liked on the Hill, and considered an expert on terrorism and national security. His name was mentioned prominently in connection with several intelligence agency positions during the Trump transition. If Trump wants a safe pick, Rogers is probably the one.

But, as The Daily Caller points out, the DoJ has apparently narrowed its list of candidates to four—and Rogers isn’t among them.

In a bid fill the empty slot as soon as possible, a source with knowledge of the interview process told Politico that officials will interview acting FBI Director Andrew McCabe, GOP Sen. John Cornyn, former DOJ Criminal Division Chief Alice Fisher and former U.S. Attorney Michael Garcia from Manhattan.

President Donald Trump abruptly fired James Comey from the position Tuesday, a move that surprised Comey. He wasn’t informed of the move in advance and realized what had happened while he was speaking to bureau employees in Los Angeles and news flashed on the screen behind him. He initially thought it was a funny prank. But that prank turned out to be entirely genuine.

The decision was so quiet that White House Chief Strategist Steve Bannon also discovered the news in the same way as Comey, namely from TV. Trump reportedly kept important staff in the dark because he was concerned about the news leaking.

Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein are set to conduct interviews starting in the afternoon on Saturday. These four candidates are not the only people under consideration for the position. More candidates will likely be interviewed at a later date. Around 11 people in total are under consideration.

Sessions and Rosenstein are separately conducting interviews for interim FBI director, a spot currently held by Andrew McCabe.

President Donald Trump told reporters Saturday it’s possible he could nominate someone for the position as early as next Friday before he leaves for a trip abroad. While on Air Force One, Trump said that the candidates for FBI director are “outstanding people” and “very well known.”

‘Jumped the shark” is an overused expression straight out of 1970s situation comedy. It is the most charitable interpretation of the moment President Donald Trump pressed “Tweet” on Friday morning. After nearly four months of the once jaw-dropping novelty of presidential tweeting (the equivalent, in dog years and media exhaustion, of five sit-com seasons), the routine has grown stale, the former reality-TV star apparently out of “don’t touch that dial” ideas.

So, while his staffers fanned out to douse overheated media-Democrat Watergate analogies to his firing of FBI director James Comey, the president was on social media suggesting that he might be recording his conversations in the White House:

Is there a Rosemary Woods for Twitter?

Alas, this was not the only piece of bizarre Trump-Comey news. It was reported by several media outlets that the then-director was summoned to a late-January dinner at the White House, where Trump pressed him for a loyalty pledge. Comey is said to have demurred, promising the president nothing more, or less, than honesty. If it happened, and happened that way, Comey is to be lauded for giving one of the only two appropriate responses. The other would have been to resign.

The story is disputed: Comey’s side of it comes from secondhand sources. For his part, Trump told NBC News that it was Comey who wanted the meeting so he could lobby to keep his job — although Trump became non-committal when asked whether it was he or Comey who initiated the dinner invitation.

Trump further maintains that the dinner was the first of three times that Comey assured him that he was not under investigation. To be clear (as National Review explains in an editorial): Comey has testified that the FBI was conducting a counterintelligence investigation of Russia’s meddling in the election. Though he said the investigation is exploring ties between Trump associates and Russia, a counterintelligence investigation is not a criminal investigation.

There is thus no reason to believe that the president is or has been the subject of a criminal investigation, even though Trump can’t seem to help himself from raising that specter. The president also reloaded and shot himself in the other foot, telling NBC that Comey’s pursuit of the Russian meddling probe did, in fact, influence his decision to fire Comey. Trump made clear that this is because he sees the investigation as baseless, not because he has anything to fear. Still, this new version of events contradicts the White House line from days earlier: viz., Comey’s termination was based on his deviations from law-enforcement protocols and had nothing to do with Russia.

It is the latest in a series of depressing chapters. Most pressingly, it will be more difficult now for the president to recruit a highly respected, instantly credible law-enforcement pro — a Ray Kelly type, to my mind — to replace Comey.

“We know Director Comey was leading an investigation in [sic] whether the Trump campaign colluded with the Russians, a serious offense.” So inveighed Senate minority leader Chuck Schumer (D. N.Y.), according to a report by PJ Media’s Bridget Johnson. Senator Schumer added, “If there was ever a time when circumstances warranted a special prosecutor, it is now.”

No, it’s not.

Readers of these columns will recall that I am a naysayer on the constitutional chimera interchangeably called a “special prosecutor” or an “independent counsel.” I won’t rehash all the arguments yet again. Suffice it to say there is no such thing as a prosecutor who exercises prosecutorial power independent of the executive branch. Were the Trump administration to cave in to media-Democrat pressure and appoint a “special prosecutor,” that lawyer would be chosen by the Trump Justice Department and answer to the president.

As night follows day, the next line of politicized attack would be that President Trump had rigged the investigation by choosing a crony to make the scandal disappear.

Special prosecutors notoriously guarantee a number of headaches for an administration. Unlike other prosecutors’ offices, they do not have to limit the resources devoted to a single case because of other enforcement needs. Their investigations inevitably metastasize far beyond the original inquiry because there is no supervisor to keep them focused on the subject matter and ensure that the investigation is completed in a reasonable time. The arrangement is a perverse assignment of a prosecutor to a single target (or set of targets) with a mandate to make a case against him – whatever case can be made, however long it takes. Because political cases have a high public profile, and the special prosecutor would inevitably be accused of a whitewash if he decides an indictment is not warranted, there is unusually great pressure to file some charge – even if it is a “process crime” (i.e., an offense, such as making false statements to investigators, that relates not to the conduct that was under investigation but to obstruction of the investigation itself).

Just as important, special prosecutors severely degrade an administration’s capacity to govern. They paralyze officials, pitting them against each other when they should be cooperating on the president’s agenda. They divert time, energy, and resources away from the conduct of official responsibilities so that the prosecutor’s investigative demands can be answered.

The only upside an administration supposedly gets in exchange for bearing these debilitating burdens is that appointing a special prosecutor signals to the public that the administration is not afraid of an “independent” investigation. But if the president is going to be accused of rigging the investigation anyway, what’s the point?

Let’s put all that aside for a moment, though. If we’re already talking about a special prosecutor, it means we have ignored what is supposed to be a rudimentary requirement: the crime.

You don’t need a prosecutor unless you first have a crime.

If the point of the exercise is to explore threats posed by Russia, that’s not a job for a prosecutor; it is a job for the president, the intelligence agencies, and Congress. We have prosecutors to prosecute crime; absent crime, there is no place for them. And special prosecutors only come into the picture when the suspects are people (generally, executive branch officials) as to whom the Justice Department has a conflict of interest. But those suspects must be suspects in a crime – not just in some untoward or sleazy form of behavior.

So what is the crime? What is the federal criminal offense that could be proved in a court of law under governing law and evidentiary rules?

“Collusion” – the word so tirelessly invoked – is not a crime. It is used pejoratively, but it is just a word to describe concerted activity. Concerted activity can be (and usually is) completely legal. Lots of unsavory activity in which people jointly participate is legal, even if we frown on it. In order to be illegal, concerted activity must rise to the level of conspiracy.

A conspiracy is an agreement to commit a crime. Not to do something indecorous or slimey; it must be something that is actually against the law, something that violates a penal statute. In the crim-law biz, the crime that conspirators agree to try to accomplish is known as “the object of the conspiracy.” If the object is not against the law, there is no conspiracy – no matter how much “collusion” there is.

So, in the ballyhooed “Russia investigation,” what is the object of the purported conspiracy? Notice that although Senator Schumer casually asserts that “a serious offense” has been committed, he does not tell us what that offense is.

That’s because there isn’t one.

Sorry to be the downer at the pep rally, but it is simply not a federal crime for a foreign country to intrude on an American election by spreading information or misleading propaganda that favors one candidate or damages another. To draw an analogy, it is shameful for the American media systematically to scald Republicans while carrying the Democrats’ water; but there is nothing illegal about it.