On Friday, I posited that special prosecutor Robert Mueller may have nothing of serious interest on the Trump administration other than certain officials lying to the FBI to cover up a non-crime: conversations between those officials and members of the Russian government after the election, relating to policy that would be implemented upon inauguration.
Over the weekend, the case for that grew stronger.
The biggest problem with the Mueller investigation has always been its scope. What, exactly, was Mueller investigating? Andrew McCarthy at National Review always suggested that the investigation wasn’t criminal — it was a counterintelligence investigation. What’s the difference? A criminal investigation would pursue proof of crime — and collusion with Russia isn’t a crime (conspiracy is, but it has not been close to proved), nor can the President of the United States be criminally charged with obstruction of justice for firing employees of the executive branch for any reason at all. So what’s all this about? Thus far, it appears to be a fishing expedition designed to elicit charges of lying to the FBI.
Mueller’s investigation was not a criminal investigation. It started out as a fishing expedition, under the vaporous heading of “collusion,” into “contacts” between Russian officials and Trump associates — notwithstanding that collusion is not conspiracy and that it was perfectly legal for Trump associates to have contacts with Russia (just like Clinton associates did). It was to be expected that the Trump campaign and transition would have such contacts once it was apparent that Trump could well become — and did in fact become — the next president of the United States.
No collusion has been shown. Zero criminal activity has been charged beyond lying to the FBI (which is, of course, a crime) — and it seems so far that Team Trump’s lies to the FBI had less to do with lying over criminal behavior and more to do with lying out of ignorance of the law. That’s still lying, but it’s Scooter Libby-type lying, not Richard Nixon-type lying. At least Watergate involved underlying criminal activity. There’s no proof of any underlying criminal activity here whatsoever (and please, spare me the Logan Act commentary — that probably-unconstitutional piece of law has never earned a single conviction).
McCarthy rightly concludes:
The ongoing Mueller probe is not a good-faith investigation of suspected espionage or other crime. It is the exploitation of the executive’s intelligence-gathering and law-enforcement powers in order to (a) criminalize Trump political policies with which the Obama administration disagreed and (b) frame Clinton’s electoral defeat as the product of a traitorous scheme rather than a rejection of Democratic-party priorities.
This was always the danger of a special counsel, and it’s why Trump is so angry at Attorney General Jeff Sessions for recusing himself. It’s also why Trump should never have fired James Comey, or at least why Trump should have fired him himself rather than implicating Deputy Attorney General Rod Rosenstein in that effort, which earned him a special counsel.
Nonetheless, if push comes to shove, Trump will be hard-pressed not to treat anyone indicted for lying to the FBI over non-crime the same way George W. Bush treated Libby: by pardoning or commuting sentences. And Trump will be hard-pressed not to fire Mueller if Mueller continues racking up weak indictments based on lying to the FBI, rather than on any serious underlying criminal activity. Would doing so amount to “obstruction of justice”? For political impeachment purposes, perhaps. But not for legal purposes. Here’s what I wrote about that back in June:
There are three separate federal laws, as The New York Times points out, that could deal with this situation. None clearly does.
1. 18 USC 1503: This “omnibus” clause covers “corruptly or… by any threatening letter or communication influenc[ing], or imped[ing] or endeavor[ing[ to influence, obstruct, or impede, the due administration of justice.” But the clause also requires a pending judicial proceeding – and as far as we are all aware, there is none. Furthermore, the Supreme Court is quite exacting on the application of this law – a prosecutor would need to prove that Trump’s conduct materially impeded the investigation, which even Comey has said didn’t happen.
2. 18 USC 1512(c): This provision of law covers anyone who “obstructs, influences, or impedes an official proceeding, or attempts to do so.” It is not clear that an FBI investigation is an “official proceeding,” and proving intent is difficult in any case. And it’s not enough to show intent to violate the subsection – you have to take a “substantial step toward the accomplishment of that goal.”
3. 18 USC 1519: This provision covers destroying evidence related to a federal investigation. There are no accusations that Trump destroyed evidence. Unless Trump had tapes and destroyed them, the statue simply doesn’t apply.
So, we may end up with an impeachment based on the president exercising his power under law, based on a special counsel exceeding his brief and charging people who lied to him for no good reason. It’s hard to imagine a proceeding more damaging to the country than that.