Does US need special counsel to probe special counsel Mueller?

On Wednesday GOP lawmakers hammered Deputy Attorney General Rod Rosenstein, saying the Mueller probe is tainted. Democrats and other critics say this charge is a distraction and that attorneys shouldn't be reduced to red or blue.

Andrew Harnik/AP
Deputy Attorney General Rod Rosenstein prepares to testify before a House Judiciary Committee hearing on Capitol Hill, on Dec. 13.

Taking their cue from President Trump, some congressional Republicans are intensifying charges that special counsel Robert Mueller’s investigation into the 2016 presidential election is suspect because it is laced with pro-Democratic political bias.

On Wednesday GOP lawmakers at a House Judiciary Committee hearing hammered Deputy Attorney General Rod Rosenstein on this issue. They cited text messages between two former Mueller team members that expressed deep anti-Trump sentiment prior to last November’s vote.

At one point Rep. Steve Chabot (R) of Ohio suggested that investigators on the Russia probe might as well wear uniforms. “The Mueller team overwhelming ought to be attired with Democratic donkeys or ‘I’m with Hillary’ [shirts], certainly not ‘Make America Great Again,’ ” Representative Chabot said.

Democrats and other critics say this charge is essentially diversionary. It’s meant to distract from Mueller’s indictments and the flipping of former National Security Advisor Michael Flynn into a witness for the prosecution, they say, and reduce the impact of any further developments from the Russia investigation.

Furthermore, Justice Department lawyers – indeed, all government workers – are more than an “R” or a “D”, say critics. To strip them down to a partisan identity is overly reductive and unworkable. FBI Director Christopher Wray is a Republican who has donated lots of money to GOP candidates. Does that mean he can only investigate suspects from his own party?

If the Trump White House and its allies are using this approach to make it possible to fire Mueller, they are playing a dangerous game, says Ryan Goodman, a professor at the New York University School of Law and national security legal expert.

“Especially with all the national security threats and other top priorities in foreign policy we are facing, it would throw the country into turmoil,” he says.

The belief among some in the GOP that the Mueller probe is out to get Mr. Trump was on full display Wednesday at the House Judiciary grilling of Mr. Rosenstein. Republican after Republican cited text messages released on Tuesday between a top counterintelligence agent, Peter Strzok, and another senior FBI lawyer named Lisa Page.

“This man cannot be president,” wrote Ms. Page at one point, referring to Mr. Trump.

“Maybe you’re meant to stay where you are because you’re meant to protect the country from that menace,” Page also wrote.

“I can protect our country at many levels, not sure that helps,” Mr. Strzok replied.

Strzok was one of Mueller’s top investigators, until Mueller last summer became aware of the texts, and transferred him to another FBI post. Page worked briefly for Mueller’s team but is no longer employed there.

At the Judiciary Committee on Wednesday some GOP members insisted that it is time for another special counsel to investigate the current special counsel’s possible political conflicts of interest.

“The country thinks we need a second special counsel,” said Rep. Jim Jordon (R) of Ohio.

Trump’s personal lawyer, Jay Sekulow, this week has also called for the naming of a second special counsel. Mr. Sekulow cited a different reason: a Fox News report that a senior Justice Department official named Bruce Ohr was demoted for not revealing meetings with officials of Fusion GPS, the investigative research company that produced the so-called “dossier” of opposition intelligence on the 2016 Trump campaign.

Rosenstein on Wednesday deflected the issue of another special counsel by pointing out that the Justice Department Inspector General is already looking into these matters. Others pointed out that special counsels are generally reserved for criminal, not civil, investigations.

In any case, it is untrue that the country wants a second investigation, says William Galston, a senior fellow in governance studies at the Brookings Institution. Mueller is doing well in the court of public opinion, Mr. Galston says, with poll ratings generally reflecting 60 percent or so support of his efforts.

“I haven’t seen any evidence that the American people have turned against him or his investigation,” says Galston.

Surveys taken by the legal security blog Lawfare have generally shown that Mueller’s ratings go up following action, such as an indictment. On Wednesday the blog published results of a poll that measured respondents' confidence in the FBI on a scale of 1 to 5, with 5 being the highest. The average score was 3.34, which compares favorably to all other institutions, with the exception of the military, which rates at 3.7.

“Support for the Bureau appears very strong,” according to Lawfare’s Mieke Eoyang, Ben Freeman, and Benjamin Wittes. “If he’s going to defend himself by tearing down the FBI, Trump has his work cut out for him.”

View of investigation depends on party

However, like so many issues in today’s politically polarized America, this overall judgment of support needs to be accompanied by a caveat. Republicans and Democrats are so split as to be almost in different worlds on this issue.

According to a Pew Research Center poll released in early December, only 44 percent of Republican and Republican leaning respondents are at least somewhat confident that Mueller will conduct a fair investigation into Russia’s involvement in the 2016 election. The corresponding figure for Democrats is 68 percent.

Nineteen percent of Republicans view the Mueller effort as “very important.” Seventy-one percent of Democrats feel that way.

The implication of this split is that the results of Mueller’s investigation, whatever they are, are unlikely to unify the country.

“In this hyperpolarized situation it would be astonishing if Mueller’s report didn’t generate a storm of controversy. Of course it will,” says Galston.

Thus Democrats who think that it is possible some explosive Mueller finding will close the case, and convince Republicans that Trump is unfit for office, are probably mistaken. There will not be a big news story that reveals “inexcusable collusion” such that there is a national consensus about serious consequences, says Jennifer Victor, an associate professor of political science at George Mason University in Fairfax, Va.

“Partisanship is now the sort of primary decisionmaking mechanism people are using to decide whether things are good or bad,” Dr. Victor says.

The reasons for this may be many and varied. The parties have become more ideological since conservative southern Democrats began migrating to the GOP in the 1970s. The rise of Fox News and other conservative media has sparked an ideological response with MSNBC. That is exacerbated by social media feeds. Increasingly partisans can live in a bubble where their beliefs are not only unchallenged, they are assumed to be the nation’s normal benchmark.

When president says FBI's standing is 'worst in history'

In years past, the president of the United States saying that the FBI’s standing was the “worst in history,” as Trump tweeted earlier this month, might have caused a national crisis, says Victor, especially when combined with a White House surrogate and former Speaker of the House, Newt Gingrich, saying the Justice Department has “become corrupted.”

“It’s that constant degradation of major American institutions that play an incredibly important role in the legitimacy of the government that is really frightening,” Victor says.

The irony is that Mueller may represent the president’s best chance to clear the Russia clouds from over the White House, says Goodman of New York University.

Conservatives should embrace Mueller, not criticize him, he says, since if Trump did nothing wrong that’s what Mueller will say.

“So many conservatives believe that Trump is innocent of any criminal activity, either because he didn’t do anything wrong or because certain acts are not criminal. If they are correct the best chance that the president has to clear himself is to allow Mueller to do it for him,” Goodman says.

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