Mueller’s real challenge

Bob Mueller is getting banged on like a boarding house bathroom door.  For a man who has never uttered a public word about his current thankless job, his motivations apparently are an open book to hyper-partisan opinion merchants eager to cast him as Satan or Savior.  

There is a sense that Mueller may be wrapping up his special counsel investigation and so the pace of political spin in anticipation of his findings has quickened. The politics are especially thick right now. Who needs the boring final season of “House of Cards”?  Real D.C. has cynical manipulation enough for any binge-watcher.

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Does any of this worry Mr. Mueller? Likely not. I was one of his assistant directors in the FBI and can vouch for the common parenthetical aside used to describe him even in critical articles:  “straight arrow, war hero, dedicated public servant," etc. A recent weak attempt to smear him as a sex harasser was coffee-spewing hilarious to those who know him. Off-color to Bob Mueller is a taut necktie other than red or navy blue.

No, Mueller will not be intimidated by the political whining that will crescendo no matter what his ultimate findings are. However, he has a bigger challenge to be concerned with and one, we can only hope, he is adequately tuned in to.  

His real challenge lies with the American people and our right to expect that justice in the United States is, always and everywhere, delivered with sterile impartiality. Ours is a nation, nearly singular in history, founded on a set of values and rights, not bloodlines and conquest. And, while politics is necessary for governance in a country such as ours, a supreme value is that the justice system will not be manipulated and used by one political party against another to gain political advantage.

Yet, out in Normaltown, USA, that is exactly what things look like right now. Robert MuellerRobert (Bob) Swan MuellerGraham: Mueller investigation a 'political rectal exam' House progressive: Pelosi 'has it right' on impeachment Democrats talk subpoena for Mueller MORE, former FBI director, was asked to be a special counsel and handed a steaming pile of weak fact patterns that, under normal circumstances, would have been handled quite differently.

The poorly written memo authored in May 2017 by Deputy Attorney General Rod RosensteinRod RosensteinJake Tapper fact-checks poster Trump admin created describing Mueller investigation Jeffrey Rosen officially sworn in as deputy attorney general Democrats talk subpoena for Mueller MORE authorizing the special counsel could be called a joke if it weren’t so irresponsible and dangerous. In it, the special counsel is asked to do three things.

The first is legitimate and adequately predicated since it simply asks for an investigation into Russian efforts to interfere with the 2016 presidential election.  Investigations can be automatically launched against Russians operating on behalf of the Russian government.

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The second request is problematic and, as written, is a violation of the attorney general’s own guidelines for the initiation of a counterintelligence investigation. Guidelines, by the way, that even a special counsel is bound to follow (see 28 C.F.R. § 600.4(a).) The president ruffles feathers when he characterizes the special counsel’s efforts as a “witch hunt” but, in reality, request number two under paragraph b(i) reads like a witch hunt (if you’re sensitive to offending witches, try “fishing expedition” instead):

“(Investigate) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald TrumpDonald John TrumpNASA exec leading moon mission quits weeks after appointment The Hill's Morning Report — After contentious week, Trump heads for Japan Frustration boils over with Senate's 'legislative graveyard' MORE.”  

There is not a counterintelligence squad supervisor in the FBI who would be allowed to initiate a case based on that statement alone. The memo does instruct the special counsel to take over the FBI counterintelligence case publicly announced by former FBI director James ComeyJames Brien ComeyTrump orders intel agencies to cooperate with Barr probe into 'spying' on 2016 campaign Attorney General Barr puts former intel bosses on notice Christopher Steele's nugget of fool's gold was easily disproven — but FBI didn't blink an eye MORE in congressional testimony on March 20, 2017.  

But we now know that Comey and his deputy, Andrew McCabeAndrew George McCabeTrump accuses Hillary Clinton of 'destroying the lives' of his campaign staffers The Mueller report concludes it was not needed Ten post-Mueller questions that could turn the tables on Russia collusion investigators MORE, unilaterally initiated that case largely based on, in Comey’s own words, a “salacious and unverified” dossier paid for by Trump’s opponent’s campaign. Hardly sufficient predication to open an FBI case. In other words, the special counsel was charged with examining “links and/or coordination” between the Russian government and the Trump campaign based on the links and coordination engineered by the Clinton campaign with Russian intelligence operatives to get dirt on Donald Trump.  

But the poorly written memo did not specifically authorize Mueller to examine the Clinton campaign’s own “links and/or coordination” with Russian operatives. Mueller can use that as an excuse if his final report appears one-sided — but that will likely not allay suspicions of most Americans that the special counsel’s investigation was politically driven and not blind delivery of justice.

The memo’s third request authorizes Mueller to “prosecute federal crimes arising from the investigation of these matters.” Mueller definitely knows how to prosecute but, again, he’s fighting some perception headwinds, particularly with his prosecutive actions to date that are directed against American citizens.  

Some charges don’t appear to have “arisen” from the authorized investigation into Russian interference.  

All charges might be at risk of being called into question as a kind of “fruit of the poisonous tree” if they were enabled by the overly broad and insufficiently predicated section b(i) of the memo.

And finally, much of the criminal charge leverage seems to rest on violations of complex process regulations and lying to investigators. These kind of charges are not commonly pursued in counterintelligence cases. The irony is that Comey went to great lengths in July 2016 to explain that “no reasonable prosecutor” would indict Hillary ClintonHillary Diane Rodham ClintonFrustration boils over with Senate's 'legislative graveyard' Poll: Nearly half of Clinton's former supporters back Biden Harris readies a Phase 2 as she seeks to rejuvenate campaign MORE on charges not normally applied to individuals of lesser stature. In other words, she should not be singled out because she is high-profile and involved in a presidential campaign. And yet, it appears that high-profile individuals tied to the Trump campaign have been vigorously pursued with criminal charges not normally leveraged in lesser counterintelligence investigations.  

A crime is a crime and these individuals appear exposed and judicial process should unfold. But when it is pursued against one campaign and not the other, the American public cannot be blamed for entertaining thoughts of political manipulation of the justice system. Mueller needs to be sensitive to that.

The value of blind and impartial justice is fundamental to the survival of our nation. It is not guaranteed; it must be protected in each generation. To paraphrase Sir Thomas More in “A Man For All Seasons,” we hold this sacred value in our hands, like water, and if we were to open our fingers, well, then we shouldn’t hope to find ourselves again.

It has been a difficult two years between actions of the irresponsible and biased former leadership of the FBI and the wobbly mandate of the special counsel. The faith of the American people in justice free from strong-arm politics has been shaken. Frankly, we’ve handed the Russians a destabilization victory far greater than they could have ever hoped to achieve with the weak “collusion” efforts being investigated.

Hopefully the special counsel investigation will begin to rebalance our rightful expectation of equal justice under the law.

Kevin R. Brock, former assistant director of intelligence for the FBI, was an FBI special agent for 24 years and principal deputy director of the National Counterterrorism Center (NCTC). He is a founder and principal of NewStreet Global Solutions, which consults with private companies and public-safety agencies on strategic mission technologies.