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Robert Mueller casts a Stone — but he can't erase larger concerns

Robert Mueller casts a Stone — but he can't erase larger concerns
© Greg Nash

Over the weekend, former FBI director and Russia collusion special counsel Robert MuellerRobert (Bob) MuellerWhy a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel CNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump MORE penned an op-ed hot on the heels of the president’s Friday night commutation of Roger StoneRoger Jason StoneThe Hill's 12:30 Report - Presented by ExxonMobil - Third approved vaccine distributed to Americans DOJ investigating whether Alex Jones, Roger Stone played role in Jan. 6 riots: WaPo Nearly a quarter of Trump's Facebook posts in 2020 included misinformation: analysis MORE’s prison sentence. In the article, Mr. Mueller pointed out that Roger Stone remains a convicted felon. Yes, roger that. Roger lied.  

But that’s really not the main point Robert Mueller apparently wanted to make. Most of Mueller’s article focused on his self-described compulsion to respond to claims that the special counsel’s Russia collusion investigation was “illegitimate.” He defended his team’s efforts by pointing to indictments, convictions, pleadings and Stone’s lies. But in our system of justice, the ends don’t automatically justify the legitimacy of the means.

In full transparency, I was one of several assistant directors to Mueller over his 12-year term as FBI director. He earned my respect then and retains it today. His service to this country remains unequalled by most, and the controversies that attach to his role as special counsel should not inordinately detract from his formidable contributions that stretch back to injurious combat in Vietnam.

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In hindsight, however, it would have been more appropriate to name a special counsel who had no prior connection to the FBI and, thus, no potential conflicts of interest. This is because the FBI counterintelligence investigation of the Trump campaign — from which the special counsel investigation largely sprang — was not a legitimate investigation. In other words, there was no legal basis for the FBI to investigate Trump campaign members in the first place. We know this from now-released FBI documents authored by former agent Peter Strzok.

Make no mistake, the marching orders given to special counsel Mueller by Acting Attorney General Rod RosensteinRod RosensteinRosenstein: Zero tolerance immigration policy 'never should have been proposed or implemented' Comey argues Trump shouldn't be prosecuted after leaving Oval Office Trump turns his ire toward Cabinet members MORE did have one legitimate angle — namely, to investigate Russian efforts to interfere with the 2016 presidential election. Unfortunately, despite an environment rich with indicators of Russian bad acts, the special counsel’s findings on this main point seemed meager and narrowly focused.

Mr. Mueller was questioned why his investigation did not also include an examination of Russian intelligence influence on the Steele dossier as a means to interfere in the elections. His unsatisfactory answer was that he did not believe the dossier fell within the purview of his investigative obligations. Well, if you read Rosenstein’s memo authorizing the special counsel, it certainly did. That Mueller chose to ignore it as an example of Russian interference opened him up to perceptions that the special counsel investigation was one-sided, politically driven, and possibly overly protective of the FBI. It was a self-inflicted wound that raised questions of legitimacy.

In his op-ed, Robert Mueller accurately recites Rosenstein’s infamous phrase directing him to examine any “links or coordination” between the Russian government and the Trump campaign.  It is disheartening that a former FBI director and an acting attorney general did not recognize that “links or coordination” is not sufficient legal predication for a government investigation of U.S. citizens.  

The actual standard for launching an investigation is reasonable suspicion that a U.S. citizen is acting as an “agent on behalf of a foreign entity.” There is no documentation released to date, or testimony offered publicly, that reveals such a standard was ever met regarding anyone affiliated with the Trump campaign. Sorry, Mr. Mueller, this raises questions of legitimacy.

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Mr. Mueller did not further help his quest for legitimacy when, after concluding there was no evidence of collusion between Russia and the Trump campaign, he allowed a curious listicle in his report of all the ways the president might have obstructed his investigation. Since he was unwilling to file criminal charges or advise Congress to impeach, it came across as little more than sour grapes that called to mind former FBI director James ComeyJames Brien ComeyWray says FBI not systemically racist John Durham's endgame: Don't expect criminal charges Trump DOJ officials sought to block search of Giuliani records: report MORE’s unwarranted, public recitation of Hillary Clinton’s sins after refusing to seek her indictment for using a personal email server for State Department communications. Both were an abuse of prosecutorial authority and out-of-bounds incursions into presidential politics far more disruptive than anything the Russians have tried. Both called into question the legitimacy of their actions.

Mr. Mueller takes solace in the fruits of eight convictions/pleadings of U.S. citizens as a result of the special counsel efforts. But here is the key question Americans must ask: Are we okay with convictions that stem from an investigation that apparently had no legal basis for even being started? The FBI and local police might be able to find copious evidence of all kinds of crimes if allowed to walk into anyone’s home or business for no reason. Our Constitution, thankfully, prevents that.

Mr. Mueller is concerned that the integrity of his team is being disparaged. But that’s misplaced apprehension. This isn’t personal; it’s legal. It’s about — as Mueller points out — the rule of law.  And the first rule of law is that the full force of the law cannot be applied where no cause exists.  

That’s a legitimate concern.

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 independently consults with private companies and public-safety agencies on strategic mission technologies.