09.21.2018 0

Is the Mueller special counsel probe all about protecting Rod Rosenstein’s reputation?

By Robert Romano

The key facts to remember in the whole investigation by Special Counsel Robert Mueller, not into Russian interference in the election, but into the firing of former FBI Director James Comey, are these: 1) Deputy Attorney General Rod Rosenstein recommended to Attorney General Jeff Sessions that Comey be fired; and 2) Rosenstein appointed Mueller to investigate President Donald Trump for following through on his recommendation.

And reports the New York Times on Sept. 21, Rosenstein was angry at the President: “The president’s reliance on his memo caught Mr. Rosenstein by surprise, and he became angry at Mr. Trump, according to people who spoke to Mr. Rosenstein at the time. He grew concerned that his reputation had suffered harm and wondered whether Mr. Trump had motives beyond Mr. Comey’s treatment of Mrs. Clinton for ousting him, the people said.”

Read that again and the likely true motive for the Mueller probe is revealed: “He grew concerned that his reputation had suffered harm…”

Comey was fired on May 9, 2017. Mueller was appointed on May 17, 2017. There’s a lot of fluff in the Mueller appointment about investigating Russian interference. Comey was investigating Trump for assisting Russia, somehow, with its election interference. For being the agent of a foreign power. Mueller was brought in to carry on Comey’s work, ostensibly, but that’s just a cover for the true purpose of the investigation: Get Trump removed from office.

After all, Rosenstein’s ego had been wounded. He had been used by Attorney General Jeff Sessions and President Trump to get Comey removed.

The New York Times story is almost unbelievable. It sounds like a bad television show script. It has Rosenstein reportedly proposing he wear a wire to the White House, and that officials who were interviewing at the White House to replace Comey at the FBI wear wires, to secretly record the President in the days that followed the Comey firing.

It has Rosenstein trying to recruit members of the Cabinet to invoke the 25th Amendment and have Trump deposed in what can only be described as a legal coup.

The 25th Amendment is supposed to be when a president is, for example, in a coma, and is “unable” to discharge his constitutional powers. Instead, clearly President Trump knows how to sign bills into law, make the annual State of the Union Address, appoint judges and so forth. There is no basis for removal based on him being “unable” to do his job. He’s doing it every day. Rosenstein in a statement to the Times said, “Based on my personal dealings with the president, there is no basis to invoke the 25th Amendment.” At least he got around to figuring out that part.

As for removing Comey, the President absolutely had the authority to dismiss Comey or any other FBI director under the Constitution and the laws enacted by Congress. Exercising the powers of the office in accordance with the Constitution cannot be a crime.

Article VI of Constitution sets out that the Constitution is the supreme law of the land. A statute passed by Congress, if it were called upon to circumvent the President’s execution of the laws by definition would be unconstitutional. The President is the only officer in the Constitution who expressly has the power to execute laws.

The President can order criminal investigations. He can end criminal investigations. He can fire political appointees that serve at the pleasure of the President. Doing those things can never be crimes.

If anything, preventing the President from conducting his own criminal investigation would be a crime. Obstruction of justice includes attempts to corruptly impede executive branch officials from conducting investigations. So, if President Trump was trying to get to the bottom of the Justice Department’s secret, illegal investigation of him, and the Justice Department was taking actions to prevent him from finding out about those crimes, that would neatly fit the definition of obstruction.

The oft-cited refrain is that no one is above the law. Well, that includes the Justice Department, too.

The Justice Department are not benign political actors. This is not a matter of dissenting political opinions. Wires or no wires, 25th Amendment or no 25th Amendment, the investigation of President Trump began before he was ever sworn into office, and the fact that it continued as he came into office is the original sin that the nation now must contend with. The Justice Department are composed of officers who, like the President, have the power to carry out criminal investigations and to prosecute individuals for crimes. But they answer to the Attorney General, who is the President’s appointment who carries out that function in detail. And the Attorney General answers to the President.

No cases go forward that the Attorney General has not signed off on. If the President is not pleased with how the Justice Department is operating, he absolutely has the power to get a new Attorney General. To get a new Deputy Attorney General. And so forth.

But that would not be without consequences, warns constitutional attorney and national talk show host Mark Levin on his Sept. 21 broadcast: “The Special Counsel’s office … would like nothing more than the President of the United States to fire Rosenstein to claim that he is truly obstructing an investigation, trying to influence their investigation, and then write it up as, effectively, as in Watergate, a ‘Saturday Night Massacre’ of sorts. In other words, it’s a setup of the president. The president must not fire Rosenstein, certainly not prior to the midterm election. That’s what they want.”

So, even though the President has the authority to fire Comey or Sessions or Rosenstein or Mueller, even, the current configuration of precedent favors the Justice Department, who would cite Richard Nixon’s firing of Attorneys General on Oct. 20, 1973 as yet another reason to remove Trump. Just because the President has the authority, it would not necessarily be wise to act on it at this stage, Levin warns.

That’s why the recusal of Sessions was so critical to this tale. It’s the only way the investigation, which originated under former Attorney General Loretta Lynch, could continue after Trump was sworn into office.

To be clear, Sessions had to contend with an ongoing investigation of the President of the United States from the time before he was in office. We can only guess but perhaps Sessions’ initial motivation was to allow that investigation to be completed. But the fact is that the investigation should have ended the moment Trump was sworn into office. Sessions had never ordered the investigation and the officers who did were no longer in office. The junior officers who were carrying it out were, but they were operating rogue in essence.

In June 2017 Rosenstein signed the Carter Page Foreign Intelligence Surveillance Act (FISA) court warrant that he swore via affidavit was true that was based on the Christopher Steele dossier that Comey had already testified in Jan. 2017 was “unverified.” It turned out the dossier had been prepared by the DNC and the Clinton campaign in 2016 as opposition political research and may have leveled false charges in numerous ways.

Rosenstein didn’t start the investigation, but he commandeered it after he was sworn in as Deputy Attorney General, and as it related to Sessions’ recusal, in effect made him the Acting Attorney General.

This is unprecedented. The investigation of the Trump campaign ordered in 2016 quickly became a mechanism for wresting executive powers from the President after he was sworn in. Mueller was named Special Counsel just five months into the presidency.

All to defend the reputations of the men and women who had carried out the illegal investigation of the opposition political party in 2016. What they did was an abomination designed in its inception and its practice to circumvent the Constitution first by attempting to corruptly influence the election of 2016 and then failing that by undermining the legitimate result of the election.

The Constitution is on very thin ice at the moment because of this — and it will break if great care is not taken. The safe thing to do would be for the Justice Department to carefully retreat from the position it has staked out. The officials who carried out this madness should be rooted out. We have one Constitution. We get one President at a time. Let’s leave it that way.

Nobody elected the Justice Department officers who ordered this investigation and after this fiasco nobody ever would. This is wholly undemocratic. Unrepresentative. Unconstitutional. Let’s just stop it right there. Enough is enough.

Robert Romano is the Vice President of Public Policy at Americans for Limited Government.

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