Where to start? The phrase “unfettered power,” to which I will return, may put you in mind of Lord Acton’s famous observation that “power corrupts, and absolute power corrupts absolutely.” But the context of Acton’s mot was grand politics. “Great men,” he went on to say, “are almost always bad men.”
What we see in the present case—the case of the hall-of-mirrors, matryoshka-doll-like investigation tirelessly pursued by Robert Mueller and his band of merry Democratic prosecutors—is not grand but shabby.
In just a week, we will have reached the first anniversary of what threatens to be an interminable investigation of—what? It’s hard to keep track. Is it charges dating back to 2005 of bank fraud against Paul Manafort, who was briefly Donald Trump’s campaign manager? Or does it have to do with a taxi business in which Donald Trump’s personal lawyer, Michael Cohen, is involved? It’s hard to say.
Robert Mueller’s original marching orders authorized him to look into “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” That was the main thing. Acting Attorney General (as he was then) Rod Rosenstein also added that Mueller was authorized to investigate “any matters that arose or may arise [my emphasis] directly from the investigation” as well as “any other matters within the scope” of the governing statute.
That was last May. In August, Rosenstein issued another memo. I would like to tell you what it says, but can only give you the most general sense because, in the version released to the public, most of it is blacked out—“redacted,” to use the term of art that has replaced “collusion” as the political word du jour. Someday I hope to see a communication from the Justice Department or our intelligence services that is 100 percent redacted. The memo was released, just not the words on the memo.
Freudians like to talk about “analysis terminable and interminable.” I suppose Mueller’s ever-expanding probe would fall into the latter category. Some people think it will proceed for as long as Donald Trump is president, maybe longer, since for our permanent bureaucracy Republican presidents are by definition illegitimate.
In 1968, Richard Nixon’s election was illegitimate because it was said that Nixon had colluded with contacts in South Vietnam to delay peace talks until after the election. In 1972, there was Watergate. In 1980, Ronald Reagan’s election was illegitimate because it was said that his campaign had access to Jimmy Carter’s debate preparation notes. In 1988, George H. W. Bush’s election was illegitimate because he used anti-crime ads against Michael Dukakis. In 2000, George W. Bush’s election was illegitimate because of the U.S. Supreme Court decision in his favor. In 2004, W.’s reelection was illegitimate because of the “Swift Boat” ads taken out against John Kerry. And of course, Donald Trump’s election was illegitimate because his good friend Vladimir Putin put him into office by—well, I’m not sure exactly what Putin, or what “the Russians,” are really supposed to have done, but Trump cannot be president. You can “take it to the bank,” said Nancy Pelosi, “he will never be president”—so that is that.
If I digress, it is because this updated version of The Mousetrap is a bewildering thriller with a seemingly endless cast of characters (also an apparently bottomless, or at least undisclosed, budget).
Just last week, James Baker, chief legal counsel for the FBI (also James Comey’s best friend), suddenly quit, as did Lisa “love bird” Page (not to be confused with Page, Carter). Why? Are they keeping one step ahead of the next course of Michael Horowitz’s inspector general’s report? Horowitz’s last bombshell led to the firing and criminal referral of Andrew McCabe. Really, you should keep a list of the dramatis personae of this farce: playing the King is Robert Mueller, of course, but who is Bruce Ohr? Who is his wife Nellie? Why was she working for Fusion GPS, which leads us to Glenn Simpson and Christopher “Dossier” Steele. Where is Peter Strzok? How does John Brennan, former head of the CIA fit in, or former Director of National Intelligence James Clapper, now under contract at CNN? Then there is James “higher loyalty” Comey who wishes he were still director of the FBI but is happy to be pushing his best-selling book instead. And let’s not forget Susan Rice and Samantha Power and Sally Yates, and, oh! so many others.
Rule of Law? Who Needs That?
The thing to keep in mind is that we would never have heard of most of these people, and those we had heard of we soon would forget if only the universe had behaved as expected and elected Hillary Clinton.
We would not be talking about illegitimately obtained FISA warrants. Neither Paul Manafort nor his pal Richard Gates would have been indicted, nor would George Papadopoulos, Michael Flynn, that baker’s dozen of Russians that Robert Mueller indicted just for show a couple months back or Michael Cohen. What an entertainment the world would have lost!
Good theater though it is, however, there are one or two other considerations that press upon the public’s attention. One is that hoary old idea of checks and balances. Back in the antique days before the progressive establishment achieved maximum virtue and was able to dispense with such atavistic appurtenances as the Constitution and the rule of law, many people worried about individuals or institutions accumulating too much power, especially when that power was not subject to effective oversight and control. We’ve passed beyond all that now, or nearly.
There are one or two holdouts. One conspicuous redoubt is Judge T. S. Ellis III who had some interesting things to say when Robert Mueller’s merry men came before him the other day to press their case against Paul Manafort.
“You don’t really care about Mr. Manafort’s bank fraud,” Judge Ellis said. “You really care about what information Mr. Manafort can give you that would reflect on Mr. Trump or lead to his prosecution or impeachment or whatever. That’s what you’re really interested in.”
Singing . . . and Composing
Judge Ellis continued with a relevant musical metaphor. Manafort was of interest to Robert Mueller—of such interest that he and his wife were subjected to a pre-dawn, guns-drawn raid, you know the sort of stuff you see on television when there are terrorists or drug kingpins involved—not for himself, not for a 2005 bank fraud case for which, according to some reports, he has already been investigated with no charges being brought.
No, Paul Manafort, like so many other people charged by Robert Mueller, is caught up by the awesome, grinding power of the American legal machine in order to illustrate that great Archimedean principle, leverage.
As Judge Ellis neatly put it, the hope is that by putting pressure on Paul Manafort, Robert Mueller will be able to induce him to “sing” about Donald Trump. The problem is, Judge Ellis noted, that often people so pressured “may not just sing. They may also compose,” i.e., make things up.
The crux of Judge Ellis’s repartee with Robert Mueller’s thugs, er, prosecutors revolved around the legitimate exercise of power. His remarks have been quoted in dozens of columns. They deserve to be quoted in dozens, if not hundreds, more.
“What we don’t want in this country is we don’t want anyone with unfettered power,” Ellis said. “We don’t want federal judges with unfettered power. We don’t want elected officials with unfettered power. We don’t want anybody, including the president of the United States, nobody to have unfettered power. So it’s unlikely you’re going to persuade me that the special prosecutor has unlimited powers to do anything he or she wants.”
Oh, but we don’t have unfettered power, rejoined the prosecutors. Our investigation is limited by orders from Deputy Attorney General Rod Rosenstein, his original May 2017 order, supplemented by our discussions with him (which we are not doing to tell you about) and a clarifying order he issued on August 2, 2017, three-quarters of which is redacted and we can’t tell you about that, either.
Nice work if you can get it. Judge Ellis seems to be doing his best to be sure that they don’t get it. His summary: “We said this is what the investigation was about. But we’re not going to be bound by it, and we weren’t really telling the truth in that May 17 letter.”
Where will this end? I do not know. But I am alternately heartened and depressed by what has happened in this last week or so. Depressed by the ongoing spectacle of what is (for all intents and purposes) unfettered power being deployed to unseat a freely elected president—for that, ultimately, is what this juggernaut is all about—but heartened by some glimmers of judicial awareness and mounting public revulsion against this out-of-control effort to cover up the greatest political scandal in the history of the United States—the effort by one administration to sabotage the candidacy and then the presidency of a rival.
Were I to risk a wager, I’d suggest that the chief casualty of this absurd witch hunt is going to be the reputation of the FBI and the Department of Justice. Doubtless there will be collateral damage. But never again will Robert Mueller be entrusted to investigate anything more pressing than why his bathroom drain is clogged. That thought is a day-brightener.
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