It isn’t very often that I’ll say National Review’s Andy McCarthy has missed the boat but this is one of those occasions.
In his Friday post at National Review, The Mueller Investigation Was Always an Impeachment Probe, McCarthy contends that because Mueller’s team was packed to the gills with progressive Democrats hellbent on creating a case for impeachment, and they knew that Barr would never go along with their legal reasoning–the same reason that was repudiated by the Supreme Court in the Enron and Arthur Andersen cases–they had to find a way of getting their evidence before like-minded Democrats.
So . . . Plan B: What if we decline to make any recommendation on obstruction?
Mueller’s staff calculated: If we don’t press the point of indicting the president, the AG and the Justice Department have no reason to dispute our findings, or even take on our analysis of obstruction law. They’ll be so relieved to avoid a fight over obstruction charges, they’ll be willing to let all that slide. And with Congress demanding the report, and the AG having promised maximum transparency in his confirmation hearings, we will achieve our objective: Congress will get our obstruction evidence, with an accompanying legal analysis that tends strongly in favor of finding felony obstruction. That will be the basis for any impeachment proceedings.
This, then, became the plan: Mueller would decide not to decide.
What matters is that Mueller’s shrewd staffers accomplished exactly what they hoped to accomplish: Make sure the report was disclosed to Congress intact, with 200 pages of obstruction evidence, a legal analysis that tends toward a finding of obstruction, and an express assertion by the special counsel that if he had found Trump did not commit a crime, he would have said so.
That is probably as accurate as far as it goes but I think McCarthy loses sight of the fact that there is a much clearer case to be made for saying that Mueller was never, ever interested in anything to do with Russia and was engaged in a hit job on President Trump from the day he was appointed.
To preface this, let me point out that by the time Mueller was appointed on May 17, 2017, the FBI already knew that the Steele dossier was utter fabulist bullsh**. They knew Papadopoulos didn’t have any inside track to the Kremlin because all of his contacts who purported to give him said information were Western intelligence assets. The knew Michael Cohen had never been to Prague. And if even the New York Times had staffers wondering aloud on video of the Steele dossier was actually Russian dezinformatsiya, that quite a few counterintelligence people at the FBI and at the CIA were undoubtedly pursuing the same line of reasoning as the claims that could be investigated were proven false. It was known for a fact that Carter Page was less of a Russian agent than Hillary Clinton. No one ever had any real concerns about Mike Flynn and sandbagging him was just Andrew McCabe getting payback for Flynn supporting an agent McCabe had fired in her sexual discrimination lawsuit against him. The whole Trump Tower meeting was known to have been conducted by Fusion GPS operatives, one of which John Kerry’s State Department had allowed into the the US despite her being banned from entry. No sane person believed the whole bank-server-in-Trump-Tower-talking-to-Moscow story.
In short, were this investigation actually the “counterintelligence” investigation it was purported to be, then all Mueller had to do was review existing investigatory information, sign off on it, and say “nothing here, folks.”
But that isn’t what happened.
What happened was something completely different.
James Comey was fired on May 9. According to Comey, on the Monday after he was fired, May 15, he decided to leak him memos documenting his meetings with Trump in hopes of triggering an independent counsel (on what grounds, one might ask) and on May 16 the first story about the memos appeared. The next day Mueller was appointed.
But from court documents we know that the FBI had opened an obstruction investigation of President Trump between May 9 and May 17:
Read the whole thread on the origins of the obstruction hoax.
What Mueller walked into was not a counterintelligence investigation but a investigation into obstruction of justice based upon Comey’s recollections as documented in his leaked memos. The structure of Mueller’s appointment doesn’t cite any violation of law associated with “coordination” (I doubt seriously that this “coordination” would be illegal) but does spell out the legal authority for investigating matters beyond the appointment letter.
So on his first day on the job, Mueller had to decide whether to focus on the Russia hoax or push an obstruction case. It is hard to see any honorable reason why he elected to not quickly clear the Trump campaign of “collusion.” The investigatory leg work had been done. It would have been in the best interests of the nation. The only plausible explanation is that Mueller decided that he could severely damage the Trump administration by a lengthy investigation and that if he slung about the specter of obstruction, the media would ignore the nothingburger than he was supposed to be investigating.
This investigation was never, ever concerned with Russian meddling or collusion. From its first day, the Russia angle was nothing more than a subterfuge for an investigation of the President, his family, and his friends with the sole purpose of damaging them politically and financially and, if possible, sending them to prison. McCarthy may be right about the bureaucratic tussle that led to Mueller not making a decision but he loses sight of the fact that Mueller knew this was an obstruction investigation from his first day on the job and joyfully participated.