What Alleged Illegality is
Mueller Investigating? Trump Exercising Lawful Presidential Authority?
VICTORIA TOENSING January 28, 2018
Special Counsel Robert
Mueller wants to interview President Trump. We
know that is true because the areas of inquiry
that Mueller is interested in have been leaked.
But the questions Mueller is looking at are not
about the issue the special counsel was supposed
to examine: collusion with Russians to fix the
2016 presidential election.
Rather, the Washington
Post reports that
Mueller “is seeking to question President Trump
in the coming weeks about his decisions to oust
national security adviser Michael Flynn and FBI
Director James B. Comey, according to two people
familiar with his plans.”
The two acts, according
to the Post, are related to “efforts by the
president or others to hamper the special
How can that be? Flynn
had nothing to do with the special counsel’s
probe. And firing the head of the FBI does not
thwart what all the people under him are doing.
So what is the alleged illegality here that
could possibly “hamper” or obstruct the
It is beside the point at
this time that there is no such crime as
colluding. It is beside the point at this time
that Deputy Attorney General Rod Rosenstein was
so negligent in his drafting the appointment of
Mueller that he did not limit the investigation
in either scope or time.
resulted in Paul Manafort, former chairman of
the Trump presidential campaign, being indicted
for alleged financial crimes occurring years
before he worked for Donald Trump. These alleged
crimes have nothing to do with Russian
It is not beside the point
that a prosecutor wants to interview the
president of the United States about conduct
that is not only legal, but actually involves
the execution of presidential authority.
Two men have already fallen into Mueller’s trap.
Retired Army Lt. Gen. Michael Flynn pleaded
guilty to making statements inconsistent with
tapped and taped conversations with Russian
Ambassador to the U.S. Sergey Kislyak.
But Flynn’s entire conversation was legal, or
his statements would have been part of the
charges against him. One might ask why the FBI,
having the entire transcript of a conversation
that contained nothing illegal, even questioned
Flynn at all.
This was the legal
equivalent of the FBI showing up to ask you what
you had for breakfast – there’s nothing illegal
about eating breakfast. If you do not want to
admit you had a glazed donut and reply “yogurt,”
the prosecutor can charge you with making a
false statement to the FBI.
Papadopoulos, an adviser to the Trump
presidential campaign, pleaded guilty to
providing false statements about the timing of
his contacts with certain Russians. But the
contacts were legal no matter when they occurred
or they, too, would have been part of the
charges against him.
The caveat is not
limited to a prosecutor’s questioning a person
about legal conduct. There is also the danger of
two people differing in their statements about
an event and the prosecutor – without any other
evidence supporting one side or the other –
indicting one of them.
you say? But it did. Vice President Dick
Cheney’s chief of staff, Scooter Libby (my
longtime friend and sometime client), told the
FBI he had not told then-New York Times reporter
Judith Miller that Valerie Plame was a covert
CIA agent – something prohibited under federal
Miller remembered it differently
when she was interviewed by the FBI and so
testified at trial. There was no other evidence
to support Miller. Libby was charged and
convicted of making a false statement.
Later, Miller read Plame’s autobiography “Fair
realized that she had been misled by Special
Counsel Patrick Fitzgerald, a close personal
friend of Comey, who had appointed him to the
position. As a result, her testimony about Libby
“made no sense” she
wrote in her
Story: A Reporter’s Journey.”
was ignored by the media.
appalling and reminiscent of today’s brouhaha
over “Russian collusion,” there was no crime
involving Libby. Comey knew when he appointed
Fitzgerald that Deputy Secretary of State
Richard Armitage was the first person to discuss
Plame’s CIA relationship when he disclosed it to
columnist Robert Novak in 2003. Armitage admitted
this in 2006.
If that investigation had been kosher,
Armitage would have been indicted. Case over.
Plame worked for the CIA but she was not covert
as defined in the law that I personally drafted.
Perhaps the reason for focusing the
investigation on Libby and not Armitage was the
fact that Fitzgerald repeatedly told Libby’s
lawyers that unless Libby “deliver(ed) someone
higher up – the vice president” he would be
Here’s my advice to President
By agreeing to be interviewed by
Mueller, Mr. President, you are agreeing to be
questioned about exercising your executive
authority in areas having nothing to do with any
illegality or even collusion.
to this you may recall that an event occurred on
Monday and Comey may recall it occurred on
Tuesday. A la Papdoupoulos, only the
timing is off. Guess which one of you Mueller
Victoria Toensing is a former Chief Counsel for
the Senate Select Committee on Intelligence and
former Deputy Assistant Attorney General, U.S.
Department of Justice, where among other
assignments she created the anti-terrorism
section. She is a founding partner of diGenova &