Robert Mueller’s Flock Shooting Fiasco

The first anniversary of this “investigation to nowhere” finally revealed the real character of Special Counsel Robert Mueller with a stunning series of blunders. It turns out Mueller isn’t really a dreaded “witch hunter,” much less Inspector Javert. Mueller instead turns out to be Elmer Fudd.

Fudd’s declared target, Daffy Duck, lost no sleep over his murderous intentions. Elmer Fudd was a flock hunter. Lacking the ability to aim and hit a target, he would aim at the whole flock of birds overhead, assuming something just had to fall. It might be a bluebird, a whooping crane, or a California condor for that matter, but none could doubt the seriousness of his intentions. At least some feathers were ruffled, even if his accidental casualties had little chance of being edible.

The only reason anyone could be surprised, given Mueller’s record of frequent failures as a prosecutor and as Director of the FBI throughout his career, is that he has somehow managed to delude intelligent people into thinking that with his blue-chip credentials, he was not only competent but even able. The latest to spread this delusion, ironically in the middle of a fine article raising yet another question about a Mueller conflict of interest, is John Solomon who refers to “his record of distinguished government service.”

A Less-Than-Stellar Record
Of course, as Dr. Seuss reminds us, “it depends on how you look at things.” Certainly, as director of the FBI, Mueller blundered through a seven-year investigation under his personal direction into the 9/11 anthrax scare and ended up prosecuting an innocent man who successfully sued the feds for $5.8 million. Furthermore, Mueller failed to follow up on numerous tips from Russian intelligence that could have prevented the Boston Marathon bombing, among other lapses.

Earlier, as acting U.S. attorney in Boston, Mueller’s flock shooting led to the sentencing of four men to death for murder and then Mueller followed up with letters to the parole board opposing clemency for them. More than thirty years later the Court learned that to protect a source, the FBI withheld evidence that would have exonerated them. They were released and the taxpayers had to foot a $100 million payment to the wronged men for the decades they had spent in prison.

During Mueller’s time in Boston the FBI’s corrupt Special Agent John Connolly, now in prison, covered up for the infamous gangster Whitey Bulger’s activities. Bulger’s associate, Vincent Flemmi, had been the informant whose identity Mueller had been protecting by sitting on the exonerating evidence which would have cleared the four innocents he prosecuted in 1965.

Earlier Mueller had chased a flock of 33 Hells Angels after an appeal which reversed the five convictions the government got in the first trial, and Mueller came in to remodel the case and prosecute a retrial which ended in a hung jury. The case was then dropped.

Moving to Washington as George H. W. Bush’s appointee as assistant U.S. attorney general in charge of the Justice Department’s criminal division, Mueller got lucky. He had several tightly managed cases handed to him that didn’t require his dubious investigative abilities. All of them were of great public interest and may have helped the Mueller illusion along: the prosecution of Panamanian strongman Manuel Noriega, Gambino family crime boss John Gotti and investigating the bombing of Pan Am Flight 103.

Mueller’s tour at the FBI led to some dubious “protect the director at all costs” activities in the Bureau. So it is not surprising that though Mueller’s “distinguished government service” was distinguished largely by his unpleasant personality and uneven performance, something the  Los Angeles Times, in a fine wrap up by David Willman, calls his “surprising flaws.”  

It was distinguished also by his ability to project calm dependability.

Missteps and Mishaps
But in the past month or two, Mueller is back to piling up glaring errors in his flock shooting of peripheral players supposedly involved somehow in the “Trump-Russian Collusion,” “Trump Obstruction of Justice”—or whatever Mueller is supposed to be investigating. We don’t know because Deputy Attorney General Rod Rosenstein won’t tell anyone, including Congress, in spite of its oversight responsibility.

Ironically, one of those most curious about just what hunting license Mueller may have been issued by Rosenstein turns out to be an Hispanic immigrant from Colombia, and unfortunately for Mueller, the U.S. district judge in Virginia overseeing the Manafort case.

Judge T.S. Ellis III, appointed by Ronald Reagan, got right to the point. “I don’t see what relationship this indictment [for bank fraud in 2005 and 2007] has with anything the special counsel is authorized to investigate . . . It is unlikely you are going to persuade me the special counsel has the unfettered power to do whatever he wants.”

Ellis asked to see the memorandum defining Mueller’s scope of authority. Mueller’s attorney Dreeben tried the tired “national security” exclusion—and failed. And the clock is ticking on a possible dismissal in favor of Manafort if Mueller doesn’t cough up his scope of authority.

Since Mueller had decided to file indictments against Manafort in Washington, D.C., as insurance against an “unreasonable” judge like Ellis, he was likely to be disturbed to find his Obama-appointed D.C. judge, Amy Jackson Berman, also shared Ellis’s doubts about whether Mueller was exceeding the scope of his investigatory authority. Nonetheless, she refused Manafort’s motion to dismiss.

The Case Against Michael Flynn is Far From Over
Also over in Washington, and at the last minute, Clinton-appointee Judge Emmet Sullivan found himself facing Mueller’s sudden desire to delay former National Security Advisor Michael Flynn’s sentencing after Flynn had agreed to plead guilty to criminal perjury. Flynn’s attorney joined the motion. Earlier Sullivan demanded Mueller’s team turn over all evidence that might exonerate Flynn before sentencing.

Sullivan had been stung before by evidence withheld by the government when he overturned the scandalous ethics case conviction the government had brought against Senator Ted Stevens (R-Alaska).

It appears Sullivan wanted to make certain Flynn’s guilty plea was not improperly entered before sentencing. And now there is Congressional testimony released challenging fired FBI Director Comey’s “confusion” as to whether the FBI agents whose questions supposedly led to the charging of Flynn with the offense thought it was, or was not, perjury. Congressional efforts to dig up the agent’s 302 report are proceeding at the Justice Department. The 302 reveals the agent on the scene’s judgments on the case and the investigation at the time of an interview.

In a May 11 letter to Rosenstein, U.S. Senator Charles Grassley (R-Iowa) requested that Special Agent Joe Pientka, who was present for the interview with Flynn and whose notes Grassley believes indicate he did not believe Flynn was lying, be made “available for a transcribed interview with [Senate Judiciary] Committee staff no later than one week following the production of the requested documents…” that is, no later than May 25.

Congress also believes it is on their record that Comey testified the FBI agents concluded Flynn’s interview was not perjury.

Imaginary Ham Sandwiches
And in another courtroom, this time before Trump-appointee Judge Dabney Friedrich, Mueller’s attorneys got another nasty shock. Their attempt to indict a flock of three Russian companies and 13 defendants—they no doubt thought this was useful PR eyewash since these defendants would never show up in a U.S. court—was greeted by the 
surprise appearance of counsel for one of the named companies, Concord Management and Consulting LLC. Attorney Eric Dubilier of Reed Smith argued that Mueller’s “case . . . had absolutely nothing to do with any links or coordination between any candidate and the Russian government.”

Dubilier went on to say Mueller’s case was chasing “a make-believe crime” and that Mueller was pursuing them “to justify his own existence.” And with a sarcasm that would make Senator Joe McCarthy’s nemesis, Joseph Welch, proud, Dubilier went on: “I think we are dealing with the government indicting the proverbial ham sandwich.” He added as a kicker: “That company did not exist as a legal entity during the time period alleged by the government.”

Not only “a ham sandwich,” but an imaginary one.

At which point, Dubilier entered a plea of “not guilty,” demanded a speedy trial, and imposed a crushing demand on Mueller for document production. The Mueller team made it clear they are not ready to go to trial.

Isn’t It Time for Sanctions?
Veteran journalist 
Seth Lipsky reminds us that the Hyde Amendment remains law and could well be applicable in a disastrous exhibition like the one Mueller and his team have put on to date. There are two Hyde Amendments, but in Lipsky’s words “the one that concerns us here, was calculated to deter criminal prosecutions that are ‘vexatious, frivolous, or in bad faith.’”

Can anyone describe the four separate deliberations detailed above in four different courts as anything else?

And while we are at it, if government entities are found guilty of bankrupting its citizens by prosecutions that violate the Hyde Amendment, isn’t it time for the government to pay costs and damages? Government-initiated lawfare between a private pocketbook and millions of government cash will never be justice. Why shouldn’t those injured by the incompetent flounderings of Mueller’s special counsel office be compensated the way several others have already been compensated for Mueller’s behavior as U.S. attorney in Boston and director of the FBI?

But given his record, and the past year, Elmer Fudd Mueller is doing his earnest best. At this point, Mueller’s efforts are more laughable than to be feared. Like the hapless hunter in Tom Lehrer’s song, it appears all he has bagged is “Two game wardens, seven hunters, and a cow.”

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About Thomas H. Lipscomb

Thomas H. Lipscomb is the founding publisher of Times Books at the New York Times Company and has published many bestsellers. His news reporting has appeared in the Chicago Sun-Times, New York Sun and other papers. He has written op-eds and reviews for over 40 newspapers from the Washington Post to the Wall Street Journal. As a digital entrepreneur he has founded and served as CEO of two public companies based upon his patents. He lives in New York.