(Jim Bourg/Reuters)

The special counsel is going to keep digging until Trump stops this.

NRPLUS MEMBER ARTICLE I t’s a new year with a new Congress, but it’s the same question: When is Special Counsel Robert Mueller going to file his much-anticipated final report?

My 2018 answer was: When he’s good and ready.

I have a caveat for 2019, though: Maybe when President Trump stops giving him additional reasons to keep digging.


Don’t get me wrong. I am reasonably confident that the bottom line will be that there is no criminal collusion case. That is, the original rationale for the investigation that the FBI commenced during the 2016 presidential campaign and that Mueller inherited in 2017 — pretextually opened as a counterintelligence investigation but conducted as a criminal investigation in search of a crime — is a dry hole: There was no conspiracy between the Trump campaign and the Kremlin to commit cyber-espionage against Democratic email accounts. Putin did not “hack the election.” If there had been a collusion conspiracy, the indictments Mueller has filed would look very different; the potential witnesses would have pleaded guilty to a collusion conspiracy — and they’d be preparing to testify against the president, not being sentenced for lying to the FBI.

Unjustified Appointment

It also remains true that there was no justification for Mueller’s appointment. The FBI was formally conducting a counterintelligence investigation. In the Justice Department, counterintelligence investigations do not have a prosecutor assigned; the point is not to prosecute but to collect information about a foreign power. In counterintelligence, if the FBI needs assistance in getting surveillance warrants from the FISA court, lawyers in the Justice Department’s National Security Division handle that. There is no need for a prosecutor — not just for a special counsel but for any prosecutor at all — unless concrete evidence emerges that gives rise to good-faith suspicion that a crime has been committed.

Moreover, there is no need for a special counsel (a creature of federal regulation) in the absence of a conflict of interest with respect to the suspected crime — a conflict so profound that DOJ is ethically incapable of investigating the matter. Here, there was no crime and no conflict. The FBI, aided by DOJ’s National Security Division, could easily have conducted an aggressive investigation of Russia’s interference in the 2016 election — and were doing so before Mueller’s appointment, even after Attorney General Jeff Sessions recused himself.



Even if we assume for argument’s sake that the attorney general himself had a conflict of interest requiring a sweeping recusal from any investigation touching on Russia or the Trump campaign, an AG’s disqualification does not trigger the appointment of a special counsel. There are any number of cases from which an attorney general must recuse himself or herself. That does not mean the Department of Justice has an incurable conflict; it simply means supervision of the matter passes to the deputy attorney general. There is no need to consider appointing a special counsel unless and until there are grounds for a criminal investigation as to which DOJ itself is hopelessly conflicted. That was never established in the Russia investigation. After all, how conflicted could DOJ be when Mueller recruited key staffers (e.g., Andrew Weissmann and Michael Dreeben) from top positions in the Obama Justice Department that had been investigating Trump before the special counsel’s appointment? And note that Mueller has also quietly transferred indictments he’s filed to DOJ components, which would be improper if DOJ were actually conflicted.

And if you’re going to ask me “What about obstruction?” the answer is: Well, what about it? As we’ve repeatedly noted (most recently in connection with the Barr Memo), no prosecutable obstruction case may be based on a president’s exercise of his constitutional prerogatives to fire subordinates (such as Comey) and to weigh in on the merits of investigations (such as that of fired national-security adviser Michael Flynn). Congress may impeach the president if it decides that these powers have been abused, but a prosecutor may not establish criminal liability.


Furthermore, the claim that a special prosecutor was needed for such an investigation is incoherent. Putting aside the absence of a factual basis for criminal investigation, the official supervising Mueller until recently, Deputy Attorney General Rod Rosenstein, had a neon-flashing conflict of interest: He was a key player in the Trump administration’s dismissal of FBI director James Comey. If Rosenstein, an actor in the facts being examined, was not disqualified from participating in the investigation, then there is no reason a regular Justice Department prosecutor could not have run the investigation.


Of course, it doesn’t matter whether I think there should be a special counsel. There is one.


Nor does it matter that I believe any public report Mueller files about the president should be succinct. Yes, Mueller is merely a prosecutor; he is not counsel to a congressional committee conducting an impeachment investigation. The Justice Department is not supposed to speak publicly about the evidence against uncharged persons — in fact, Comey’s violation of this principle was Rosenstein’s rationale for recommending his dismissal. To my mind, either there is enough evidence to charge a crime, in which case Mueller should ask the Justice Department for permission to indict (and address the standing DOJ guidance against indicting a sitting president), or there is not, in which case Mueller should state that prosecution should be declined owing to insufficiency of the proof.

But again, what I think is beside the point. This has been a highly irregular investigation from the start. There is every reason to suspect that the same politicians who rebuked Comey for publicizing the Clinton evidence will demand full disclosure of the Trump evidence, even if Mueller recommends no criminal charges. And the new Democratic Congress will have a sound rationale for doing so: High crimes and misdemeanors need not be indictable offenses, so even if Mueller has not found prosecutable crimes, he could conceivably have found impeachable offenses.

Justifying the Investigation

This brings us to my 2019 caveat: If Mueller’s highly elastic warrant is to probe Trump “collusion” with the Kremlin, why would he stop if the president keeps giving him reasons to continue?

The first cabinet meeting of the new year found the president making the appalling claim that “the reason Russia was in Afghanistan” — i.e., the reason the Soviet Union invaded Afghanistan in 1979 — “was because terrorists were going into Russia.” Trump astonishingly added, “They were right to be there.”

These are such shocking assertions for an American president to make, it is difficult to know where to begin. The invasion was a familiar episode of totalitarian Communist aggression. There was nothing defensive about it. Moscow swarmed Afghanistan to prop up a deeply unpopular pro-Soviet regime that had seized power and was under insurgent attack for attempting to impose Communist “reforms” on a fundamentalist Islamic population. Terrorists did not provoke the Soviet invasion of Afghanistan; as I outlined in Willful Blindness, the global jihadist movement is an outgrowth of the response to that invasion: specifically, the summons to Muslims worldwide to join the battle, and the aid provided by the United States and its Sunni allies (mainly Saudi Arabia and Pakistan) to the mujahideen — in particular, to the so-called “Arab Afghans” who forged al-Qaeda. The president’s statements indicate that he grasps neither (a) the geopolitical challenge posed to the West by the Soviet Union and, derivatively, Putin’s revanchist regime nor (b) the roots of militant Islam in the modern era.

For a guy under investigation for colluding with the Kremlin, the president’s remarks are also noteworthy because they are exactly what Putin would want Trump to say.


Now, to be clear, I don’t believe Trump made these asinine comments because he is Putin’s stooge. I think he is uninformed and out of his depth. Even as the crow flies, Afghanistan is over 2,500 miles from Russia. But Afghanistan was in the Soviet sphere. Trump has border-crossing aliens on the brain, so I suspect the president was trying to make a point about the need for walls . . . or something.

Still, Trump’s remarks, echoing Russian propaganda about its aggression, are apt to be of interest to the special counsel.

As we have surmised in these columns over the past year and a half, Mueller is not investigating merely to determine whether Trump committed a crime. The wide berth he was given — authority to probe any “coordination” between Trump-campaign figures and the Russian regime — enables him to try to justify the Obama Justice Department and FBI’s controversial decision to investigate the opposition presidential candidate and his eventual administration.

‘Collusion’ — the Evidence

Just sticking with what we know (as if Mueller has no other information): Cronies of Putin told Trump-campaign officials that the Russian government wanted Trump to win the election. Trump recruited into his campaign the likes of Paul Manafort and Rick Gates, who had close ties and multi-million-dollar business dealings with Putin cronies, including leaders of the Kremlin-backed Ukranian political party that was largely responsible for the strife in Ukraine that has led to civil war and Putin’s annexation of Crimea. Manafort, who became Trump’s campaign chairman, offered briefings on the campaign to Oleg Deripaska, an oligarch so close to Putin that the latter has interceded on Deripaska’s behalf to protest U.S. travel restrictions. The Trump campaign also recruited as a foreign-policy adviser Carter Page, an obscure figure best known for being so sympathetic to the Kremlin, and so financially involved in the Russian energy sector, that Russian intelligence attempted to recruit him as an asset in 2013 (apparently unsuccessfully).

Meantime, top Trump-campaign officials elected to take a meeting with a Kremlin-connected lawyer at which they expected to receive incriminating information on Hillary Clinton that came straight from Russian-government files. The meeting was a bust — the lawyer, Natalia Veselnitskaya, appears to have used it as an opportunity to lobby top Trump associates against the Magnitsky Act, a notorious pet peeve of Putin’s. Yet the president’s son, Don Jr., apparently at the president’s urging, attempted to mislead the New York Times about the genesis of the meeting, coming clean only after learning that the Times had, and was about to publish, Trump Jr.’s emails detailing the expected transmission of campaign dirt about Clinton.


There is no known indication of any Trump-campaign participation in the hacking of Democratic email accounts. Nevertheless, Mueller is known to be investigating Trump associate Roger Stone, who is known to have communicated online with a hacker known as “Guccifer 2.0.” An indictment filed by Mueller identifies a persona known as Guccifer 2.0 as a front for Russian military intelligence, responsible for hacking the emails of the Democratic National Committee, which were leaked to the media right before the 2016 Democratic convention.

In August 2016, weeks before WikiLeaks published the emails stolen from the account of Clinton-campaign chairman John Podesta, Stone posted a tweet that could be interpreted as (but did not necessarily indicate) foreknowledge of the Podesta hack. (“Trust me, it will soon the Podesta’s time in the barrel. #crookedHillary” [sic].) In October 2016, as WikiLeaks was preparing to publish the Podesta emails, Stone was in touch with Randy Credico, a left-wing radio host who credibly claimed to be in contact with WikiLeaks founder Julian Assange. Stone described Credico as his “back-channel communication with Assange.” Stone was also exchanging emails with Steve Bannon, then Trump’s campaign manager. Stone tweeted on October 3, “I have total confidence that @wikileaks and my hero Julian Assange will educate the American people soon. #LockHerUp.” WikiLeaks began publishing the Podesta emails on October 7.

It has been credibly reported that Mueller is investigating the controversial conservative writer Jerome Corsi over his contacts with Stone — and has pressured Corsi to plead guilty to misleading the grand jury about them. Mueller is also investigating the efforts of a Republican activist, Peter Smith (who died in 2017), to locate through hackers the 33,000 emails Hillary Clinton purged from her private server system. Smith was not part of the Trump campaign, but he reportedly told people that Trump-campaign officials, including Flynn, were aware of his efforts and encouraged them.

Trump officials have denied these claims. But the allegation can come as no surprise since candidate Trump himself infamously exclaimed (at a July 2016 press conference): “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.”

I’ve always thought it was silly to see this as anything other than Trump, in an injudiciously humorous way, trying to call voters’ attention to the lawlessness and national-security recklessness of Mrs. Clinton’s private server system and destruction of government records. But it is not a statement made in a vacuum. A number of Trump’s public statements about Putin have been jaw-dropping: praising him as a “strong leader” and “far more [a leader] than our president [Obama] has been a leader”; defending Putin after the British government found that he’d approved the poisoning of a defector (“Have they found him guilty? I don’t think they’ve found him guilty”); drawing a moral equivalence between Russian-regime murders of dissenters and covert operations by U.S. intelligence. (To the description of Putin as a “killer,” Trump responded: “There are a lot of killers. Do you think our country is so innocent?”) At their Helsinki summit, Trump even appeared to side with Putin against the conclusion of American intelligence agencies that Russia is responsible for hacking Democratic emails during the 2016 campaign; and he delusionally gushed over Putin’s laughable offer to have Russia’s investigators work with Mueller on the hacking case.

Trump claimed during the 2016 campaign that he had no business dealings with Russia. But in late November, in connection with the guilty plea of former Trump fixer Michael Cohen to a false-statements charge, we learned Mueller’s investigators can prove that Trump’s organization continued throughout 2016 to negotiate the construction of a Trump Tower in Moscow — negotiations that involved communications with Russian-government officials and discussions about potential meetings with Putin and Russian prime minister Dimitry Medvedev. To be sure, it is not a federal crime to explore real-estate development in Russia. Nevertheless, the revelations raise suspicion in reasonable minds that Trump’s extraordinary public ingratiation of the Kremlin’s murderous dictator is financially motivated — or, worse, the result of being compromised because Putin was in a position to reveal that Trump was deceiving the public about his business dealings with Russia.

. . . and now Trump, as president of the United States, has offered a revisionist history of the Soviet invasion of Afghanistan — pure fiction that not only contradicts American policy and actions taken to counter Moscow’s aggression, but is indistinguishable from the propaganda that Putin himself would peddle.


It is an article of faith among Trump’s most ardent followers that the “collusion” aspect of the Mueller probe is a complete fabrication. You may notice, however, that not a single detail in the above summary is drawn from the Steele dossier. I am going strictly on publicly available information that is either certainly true or highly likely to be true.

Of course, none of this establishes a conspiracy between the Trump campaign and the Kremlin to conduct hacking operations. Furthermore, none of it establishes that the president has committed a crime. But a lot of it is highly unsavory. If marshaled by a competent prosecutor, it could satisfy many Americans that there were abundant grounds to warrant an investigation.

If I am right that Special Counsel Mueller will be keen to justify suspicions harbored by the Obama Justice Department and the FBI that Donald Trump’s circle had disturbing connections to Vladimir Putin’s circle, then what else do you suppose Mueller’s report is going to say?