From the first, the Trump-Russia investigation has been a political controversy masquerading as a set of legal problems. This has never changed, so it should never be forgotten.
It is the dynamic driving the latest dust-up over whether special counsel Robert MuellerRobert (Bob) MuellerAn unquestioning press promotes Rep. Adam Schiff's book based on Russia fiction Senate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG MORE should be summoned to testify before Congress. As with most everything else in Russiagate, politics makes Mueller’s testimony inevitable, so arguing over whether it should happen as a matter of law is pointless. Politics is driving this train, and always has.
When Mueller was appointed special counsel in May 2017, there was neither a factual predicate for a criminal investigation nor a conflict of interest that would have prevented the Justice Department from conducting the investigation without calling in an outside lawyer. Under the special counsel regulations, those are the two legal prerequisites for the appointment of a special counsel.
Yet, Mueller was appointed anyway because Deputy Attorney General Rod Rosenstein gave in to the political demands for a special counsel — demands that had been stoked at the time by former FBI Director James ComeyJames Brien ComeyCountering the ongoing Republican delusion How Biden should sell his infrastructure bill 'Finally, infrastructure week!': White House celebrates T bill MORE’s leak to the New York Times of a government memo (which he had written), alleging that President TrumpDonald TrumpBaldwin calls Trump criticism following 'Rust' shooting 'surreal' Haley hits the stump in South Carolina Mary Trump files to dismiss Trump's lawsuit over NYT tax story MORE pressured the FBI to drop any investigation of fired national security adviser Michael Flynn.
The leak of a confidential government report was improper — regardless of whether it contains classified information or of the fact that Comey no longer was a government official. Was it also illegal? I hope not, but that question currently is under inspector-general review. For present purposes, my point is that what was plainly inappropriate was, in the politics of the moment, celebrated because of politics. It gave Democrats and the media the outcome they desired — a special counsel — notwithstanding the absence of a legal basis for one.
To add the cherry on top, the probe code-named “Crossfire Hurricane” was a foreign-counterintelligence investigation. Such cases do not get a prosecutor assigned in the Justice Department because they are intelligence-analyst work, not lawyer work. Their purpose is not to build a courtroom prosecution but to gather information to help the president fulfill his constitutional national-security duties. But the politics demanded a special counsel, so we got a special counsel.
At the end of the investigation, Mueller filed his report. Under the law, the special counsel’s report is supposed to be confidential — that is explicit in the regs. Yet there never was any chance that the law would be honored. Politics dictated that the report would be publicized.
There are extraordinarily good reasons why the public should not be informed about internal law-enforcement deliberations over the worthiness of cases for prosecution. Under the Constitution, every American is presumed innocent and the government has the burden of proof to establish guilt. Consequently, the Justice Department does not disclose its evidence until it is prepared formally to charge a person with a crime. That is the point: The accused is vested with all the protections the Constitution provides to challenge the charge — it’s a fair fight, and the onus is on the government to prove its allegations.
That is why the government should speak only in court — which was the rule of the road during my nearly 20 years at the Justice Department. If a prosecutor has sufficient evidence, he indicts; then the allegations can be tested the way due process mandates that they be tested.
By contrast, if prosecutors are permitted to publicize their allegations outside the confines of a formal judicial proceeding, the accused person has no capacity to force the government to its lawful burden of proof. The person is smeared in the “court of public opinion” — precisely what the Constitution guarantees against.
But in Russiagate, politics have made this a parchment promise, not worth the paper it’s written on.
In the politics of Russiagate, there was never any possibility that the confidentiality regulation would be honored. Attorney General William BarrBill BarrJan. 6 panel recommends contempt charges for Trump DOJ official Appeals court questions Biden DOJ stance on Trump obstruction memo Michael Cohen officially released from prison sentence MORE would not have been confirmed if he had said he would follow the regulations. Moreover, special counsel Mueller’s report is patently written for public consumption, even though he did not recommend prosecution. And from an early point, once it was publicly known that he had not recommended charges, he and his staff were clamoring for their “narrative” to be released.
Prosecutors are not supposed to be in the narrative business.
In a better world, the law would be followed, the report would not have been made public, and there would be no need for Mueller to testify since the report — a carefully crafted legal document — presumably reflects his best-considered articulation of what he wanted to say. There is as much chance that testimony by the special counsel will muddle things that the report clearly states, as that it will edify us regarding what is arguably ambiguous.
But, look: Lawyers do oral argument on their legal briefs all the time. It is not unusual for a prosecutor to be asked to defend his or her work, even if those questions usually are put by a judge, rather than by lawmakers.
And there is no point debating the matter because Mueller will testify … that is dictated by the politics, just as were the publication of the report, Mueller’s appointment, and the commencement of an investigation in the absence of a crime.
Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. Follow him on Twitter @AndrewCMcCarthy.