Trump's tweets against Mueller investigation might hit the mark

President TrumpDonald John TrumpImpeachment? Not so fast without missing element of criminal intent Feds say marijuana ties could prevent immigrants from getting US citizenship Trump approval drops to 2019 low after Mueller report's release: poll MORE’s latest tweet against Special Counsel Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE attracted universal condemnation from the pundits (even though it secured more than 95,000 likes at this writing): “The Mueller probe should never have been started in that there was no collusion and there was no crime. It was based on fraudulent activities and a Fake Dossier paid for by Crooked Hillary and the DNC, and improperly used in FISA COURT for surveillance of my campaign. WITCH HUNT!”

What if Trump is right in attacking a meandering and directionless investigation that has turned into a massive distraction and waste of taxpayer money? Sure, people on the left will shudder and recoil, but if we consider this position in the cold light of day, we might reasonably conclude that Trump’s concerns about the work of the special counsel have some merit.

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I am no apologist for Trump, but let me explain.

 

The special counsel was appointed “to ensure a full and thorough investigation of the Russian government’s efforts to interfere in the 2016 presidential election.” The letter of appointment is rather awkwardly worded and does not lend itself to easy interpretation. It is issued on the letterhead of Deputy Attorney General Rod RosensteinRod Jay RosensteinImpeachment? Not so fast without missing element of criminal intent Collins: Mueller report includes 'an unflattering portrayal' of Trump Holder: Any 'competent' prosecutor could win obstruction case against Trump MORE with a heading that states the purpose is to “investigate Russian interference with the 2016 presidential election and related matters.” Specifically, this appointment authorizes Mueller “to conduct the investigation confirmed” by James ComeyJames Brien ComeyImpeachment? Not so fast without missing element of criminal intent Dem lawmaker: 'Quite clear' Trump committed impeachable offenses The Memo: Mueller's depictions will fuel Trump angst MORE “in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017.”

This investigation is supposed to include three aspects:

  • Any links and/or coordination between Russia and the Trump campaign;
  • Any matters that arose or may arise directly from the investigation; and
  • Any other matters within the scope of 28 C.F.R. § 600.4(a).

The referenced section, § 600.4(a), governs the jurisdiction of the special counsel. It requires “a specific factual statement of the matter to be investigated.” The special counsel also is authorized to investigate and prosecute federal crimes “committed in the course of, and with intent to interfere with, the investigation.” Hence, the talk about obstruction of justice and perjury.

Thus far, we have seen little evidence of coordination between the Russian government and the Trump campaign. There is also little evidence of matters that arose directly from the investigation that have anything to do with related federal crimes.

The Mueller indictments to date have been damp squibs for those expecting a devastating smoking gun with the fingerprints of Trump and the Russian government. To recall, the first indictments against 13 Russian individuals and troll farms issued on Feb. 19, 2018, allege that they knowingly and intentionally conspired “to defraud the United States by impairing, obstructing and defeating the lawful functions of the government through fraud and deceit for the purpose of interfering with the U.S. political and electoral processes, including the presidential election of 2016.”

Crucially, the indictment does not allege any link to, or coordination between, the Russian government and the Trump campaign. Although the Russian troll farms may have created fake personas and organized events aimed at disrupting the campaign of Hillary ClintonHillary Diane Rodham ClintonImpeachment? Not so fast without missing element of criminal intent Former Bush assistant: Mueller report makes Obama look 'just plain bad' Seth Rich's brother calls for those pushing conspiracy to 'take responsibility' MORE and aiding that of Donald Trump, these actions were not coordinated by the president’s campaign and were not at his direction. In any event, they likely were of trivial significance.

The Feb. 22, 2018, indictments against Paul ManafortPaul John ManafortEx-Obama White House counsel's trial set for August House Dem calls on lawmakers to 'insulate' election process following Mueller report New normal: A president can freely interfere with investigations without going to jail MORE and Robert Gates allege that from 2006, they “engaged in a scheme to hide income from United States”; “failed to pay taxes on this income by disguising it as alleged ‘loans’ from nominee offshore corporate entities and by making millions of dollars in unreported payments from foreign accounts to bank accounts they controlled”; and “used the offshore accounts to purchase United States real estate.”

Between 2015 and 2017, Manafort and Gates are alleged to have “extracted money from Manafort’s United States real estate ... using those properties as collateral to obtain loans from multiple financial institutions.” They are also alleged to have “fraudulently secured” more than $20 million in loans by falsely inflating their financial positions, then funneling money to bank accounts in countries such as the Seychelles and Cyprus, and not disclosing those accounts.

The charges against Manafort and Gates are serious, but what do they have to do with the mandate of the special counsel to investigate links/coordination between Russia and the Trump campaign?

The Mueller investigation seems to be spending too much time on matters unrelated to it raison d'etre — perhaps an admission that there isn't much substance under its core purpose: the link between Russia and Trump. Does this mean that Trump should attack Mueller, or that Mueller should be fired? Not quite.

First, attacks by the president are unseemly and likely to boomerang. Second, § 600.7(d) provides that the special counsel is subject to disciplinary action or removal solely by the attorney general. Third, removal can occur only “for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of departmental policies.”

Based on facts currently available, it would stretch credulity to fire Mueller for “good cause.” His firing likely would be political suicide for Trump and would turn Mueller into a martyr. Instead, the sensible course of action would be for the deputy attorney general to be more precise in his instruction to the special counsel and limit Mueller’s investigation to any federal crimes related directly to Russia’s interference in the 2016 election.

Multi-year fishing expeditions about Trump’s business dealings, unrelated tax filings of people peripherally involved with the Trump campaign, and other such matters are a waste of taxpayer money. In addition, they are a distraction that the country can ill-afford when there are serious challenges that need to be confronted.

Trump-haters might revel in schadenfreude at the discomfort caused by Mueller's probe but the price is too high for such petty emotions. While the administration continues to be distracted by this vague investigation, the rogue state of Russia is paralyzing the international community and enabling its dubious clients to massacre tens of thousands of people. That and other problems are more important than a bygone election.

Sandeep Gopalan is the pro vice chancellor for academic innovation and a professor of law at Deakin University, Melbourne, Australia.