Firing Mueller – More Thoughts on Going Gingrich on the Special Counsel

newt-balloon

Judging by the latest Washington Post leak from the special counsel’s office, Mueller seems awfully confident Trump won’t fire his ass.

I wouldn’t be so sure.

Pragmatically Distributed is up to the challenge.  Our eagerness for our stance in favor of eliminating the special counsel position is in no small measure due to that position’s endorsement by that great egomaniac, Newt Gingrich’s, as well as the egomaniacs at Powerline.

The reasons for throwing Mueller to the side are, as mentioned before:

  • Mueller and the entire special counsel office should be shut down for his personal friendship with Comey which creates an inherent conflict of interest according to DoJ rules and guidelines (Powerline provides details below).
  • The investigation into Russian interference in our election has found zero evidence Trump colluded with Russia.  Without evidence of collusion, the sham investigation has devolved into a fishing expedition against Trump associates for bogus “prosecutorial crimes” unrelated to Russian collusion.
  • Related to the second point, note that not even Flynn is accused of having collaborated with Russia.  Flynn is being investigated for what looks like a perjury trap set by Comey involving Flynn’s post-election campaign conversation with Russian officials.
  • As pointed out by Andrew McCarthy, the appointment of a special counsel should only be made to investigate a crime that has been uncovered, not a counter-intelligence probe (the latter of which is not a criminal investigation).

To counter Mueller, we recommend Trump take the following steps:

  • Fire Mueller and close the special counsel’s office completely.
  • Pardon Flynn for any false statements made to the FBI about his diplomatic conversations with Russia after the 2016 elections to prevent any obstruction charge originating from whatever FBI agents take over the investigation from Mueller.

We will walk through how expect this course of action to play out politically.

In the short-term Trump will take a poll hit over the ensuing media hysteria (though we ask at this point what difference does more hysteria make?).

The good news is everything for anti-Trump is downhill after a few weeks:  The medium and long term problems are all ones for the Democrats to deal with.

If Mueller is removed and Flynn pardoned the investigation effectively comes to an end with Comey’s statement that there was no collusion.

If there was no collusion and the Comey-Mueller plan to nail Trump on unrelated procedural charges like obstruction is aborted before Mueller can continue Comey’s phony investigation into procedural crimes, the steam will eventually go out of the story before New Year’s eve.

We are well over a year out from the midterm elections; and a year from now most party primaries will not be complete.  This gives plenty of time for Trump to recover by beating the drums for his agenda and repeating over and over again “According to James Comey I am innocent of collusionWhat the hell was Comey investigating if he admits I was innocent of collusion?”

Finally, we leave you the reader with an excerpt from Powerline about how Mueller’s personal relationship with Comey arguably disqualifies Mueller from serving as special counsel:

Based on the authority conferred by 28 U.S.C. 528, the Attorney General promulgated 28 CFR 45.2. It provides:

(a) Unless authorized under paragraph (b) of this section, no employee shall participate in a criminal investigation or prosecution if he has a personal or political relationship with:

(1) Any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution; or

(2) Any person or organization which he knows has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution.

(b) An employee assigned to or otherwise participating in a criminal investigation or prosecution who believes that his participation may be prohibited by paragraph (a) of this section shall report the matter and all attendant facts and circumstances to his supervisor at the level of section chief or the equivalent or higher. If the supervisor determines that a personal or political relationship exists between the employee and a person or organization described in paragraph (a) of this section, he shall relieve the employee from participation unless he determines further, in writing, after full consideration of all the facts and circumstances, that:

(1) The relationship will not have the effect of rendering the employee’s service less than fully impartial and professional; and

(2) The employee’s participation would not create an appearance of a conflict of interest likely to affect the public perception of the integrity of the investigation or prosecution.

(c) For the purposes of this section:

(1)Political relationship means a close identification with an elected official, a candidate (whether or not successful) for elective, public office, a political party, or a campaign organization, arising from service as a principal adviser thereto or a principal official thereof; and

(2)Personal relationship means a close and substantial connection of the type normally viewed as likely to induce partiality. An employee is presumed to have a personal relationship with his father, mother, brother, sister, child and spouse. Whether relationships (including friendships) of an employee to other persons or organizations are “personal” must be judged on an individual basis with due regard given to the subjective opinion of the employee.

(d) This section pertains to agency management and is not intended to create rights enforceable by private individuals or organizations.

The threshold question is whether Comey was “substantially involved in the conduct that is the subject of the investigation or prosecution” or has a specific and substantial interest that would be directly affected by the outcome of the investigation or prosecution. Comey’s conduct is not the subject of Mueller’s investigation, in the sense that he isn’t the target of the investigation (though he could be if the investigation spills over into leaking). But Comey’s conduct is a partial subject, in the sense that Mueller will apparently investigate what transpired between Comey and the president — a subject that goes to the heart of any “obstruction” claim.

In any case, it seems to me that Comey has a specific and substantial interest that likely will be affected by the outcome of the investigation. Mueller may well determine whether Trump is lying, as Comey says, or that Comey is lying, as Trump insists. Comey has a specific and substantial interest in not being found to be a liar.

The next question is whether Mueller has a “close and substantial connection” with Comey “of the type normally viewed as likely to induce partiality?” I think so. As I have argued, they are friends and former colleagues who stood side-by-side in at least one very important legal struggle.

If the requisite personal relationship exists, the question for purposes of removal becomes whether: (1) the relationship will have the effect of rendering Mueller’s service less than fully impartial and professional or (2) Mueller’s participation would create an appearance of a conflict of interest likely to affect the public perception of the integrity of the investigation or prosecution.

Whatever one concludes about the first prong of this test, I think it’s plain that Mueller’s participation in the investigation of “obstruction of justice” would “create an appearance of conflict of interest likely to affect the public perception of the integrity of the investigation.” If Mueller adopts Comey’s version of the facts, large segments of the population will question whether this is an impartial assessment, given his close relationship with Comey.

Mueller could try to avoid this perception by recusing himself from the “obstruction of justice” portion of the investigation. As I have argued, though, that’s the only Trump-related allegation that even arguably requires a “special counsel” to investigate.

Moreover, I agree with the source quoted by Byron York who says Mueller “could announce that the Comey part of the case will be handled by someone else within his office, but that is complex and not very satisfactory.” For one thing, it would leave a prosecutor selected by Mueller in charge of the “obstruction” investigation.

The Rule stipulates that it “pertains to agency management and is not intended to create rights enforceable by private individuals or organizations.” In other words, it’s for the DOJ to make the determinations called for through the normal chain of command.

Thus, Michael Flynn or Jared Kushner, for example, would not be able to enforce the Rule against Mueller. However, President Trump has ultimate “agency management” authority over the Justice Department. Thus, if he finds that the Rule requires Mueller’s removal, he has the right under the Rule to remove him, and should do so. Alternatively, Deputy Attorney General Rosenstein could do so. 28 CFR 600.7 gives the Attorney General (who in this case recused himself) the power to remove a special counsel for, among other things, “conflict of interest.”

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