Mueller's Investigation Was Deeply Flawed

By Victoria Toensing
March 28, 2019
FOXNews.com

Special Counsel Robert Mueller has been described as a public servant carrying out his final assignment for the United States by investigating allegations of “collusion” between Russia and the Trump Campaign.

In reality, Mueller’s prosecutorial history is deeply flawed, marred by a series of failures resulting in injustice to those he targeted. Like his previous work, his last labor is rife with errors in judgment and government overreach.

An example of just one of his victims involves the 2001 anthrax mailings. Shortly after Mueller became FBI director, he personally directed the investigation of who mailed anthrax to government officials, killing five and injuring others. Despite relying on what was later deemed unreliable evidence, the FBI fixated on one suspect, leaking his identity to the media. The person was wiretapped and his home searched. The unjustly accused man even lost his job. He was later cleared and received more than $5 million as a settlement for the Privacy Act violation. The real perpetrator committed suicide in 2008, just prior to the FBI arresting him.

Mueller refused to apologize for ruining an innocent man’s reputation.

Now let’s turn to his latest fiasco: the Russian collusion investigation.

For starters, Mueller loaded his team with Democratic activists — there was nary a Republican among the 19 lawyers.

Andrew Weissmann, who attended HRC’s “victory” party and emailed then-Acting Attorney General Sally Yates that he was “so proud’ and “in awe” that she had defied President Trump’s travel ban order, was the worst of the bunch. In 2011, a federal appellate court found Weissmann’s team of prosecutors had “plainly suppressed” evidence favorable to the defense when it prosecuted Enron accounting firm Arthur Andersen.

Recently unsealed documents reveal that his misconduct in the Enron case went even further. FBI agents working under Weissmann’s supervision warned potential witnesses against helping the defense by suggesting they might be indicted if their testimonies conflicted with other witnesses. His modus operandi is to threaten witnesses and their families with indictments unless they swear to information he wants.

Just ask Jerome Corsi, who was so threatened when he “couldn’t tell the special prosecutor what he wanted to hear.” Corsi went public with his charges against the Special Counsel, a clever move that apparently thwarted indictment.

Another biased investigator, Jeannie Rhee, has represented not only the Clinton Foundation, but also Hillary Clinton herself during a 2015 lawsuit regarding her private emails. Can you imagine the outcry if a lawyer investigating Hillary Clinton had represented Donald Trump and the Trump Foundation?

In my Justice Department days, I prosecuted terrorists, drug dealers, and white collar criminals. Never did I send more than a handful of agents to arrest terrorists and drug dealers. I made arrangements with white collar defense counsel for their clients to turn themselves in for arrest. And I subpoenaed white collar crime documents. Not so Mueller.

Federal agents with weapons drawn carried out a predawn search warrant raid on 69-year-old tax-evader Paul Manafort’s home, where he and his wife were roused from bed. Twenty-nine federal agents, also with weapons drawn, along with 17 vehicles, a helicopter, a boat, and frogmen were utilized to arrest 66-year-old Roger Stone, who was charged with making false statements, witness tampering, and obstruction of justice. The court released him on a personal bond.

Then there are the so-called false statement charges against retired Lt. Gen. Michael Flynn, George Papadopoulos, Roger Stone, and even Michael Cohen, all of which were completely contrived. Not one of their false statements concealed illegal conduct. If every one of their statements had been the truth, according to Mueller’s version of the truth, they would not have admitted to a crime.

Flynn’s entire conversations with Russian Ambassador Sergey Kislyak were transcribed and in the possession of the FBI. He was not charged based on any of their contents.

Papadopoulos’ meeting with Russians, similarly, was unambiguously legal. Lying about the date of it was sheer stupidity. Papadopoulos has also claimed that Mueller threatened him.

Likewise, Stone could have spoken to Julian Assange at any time after WikiLeaks received the hacked documents, and he also would not have violated the law. All of Stone’s alleged communications took place after the fact. Moreover, every journalist in the world was trying to get hold of the stolen material, just like the Pentagon Papers. Surely none of their conversations with Assange would be considered criminal.

Cohen, who appears to lie for sport, had no reason to lie about when negotiations for a Trump project in Russia ended. They could have lasted up until Inauguration Day, though that would have been a bit silly given the November victory. Whether the negotiations ended in June or in January 2016 is of no legal moment.

And then there is the Mueller Report itself. When Mueller could not get witnesses to allege untrue facts he was forced to clear the President of “Russian collusion.”

The other issue was obstruction of justice. Mueller claimed there were arguments on both sides of the obstruction issue, and left it up to the Attorney General to make the call. We do not yet know what acts could possibly amount to obstruction of justice. It could not be President Trump’s firing of FBI Director James Comey, because Deputy Attorney General Rod Rosenstein would surely be a co-conspirator, having penned a memorandum recommending the firing.

Yet, former acting FBI Director Andrew McCabe claimed it was Comey’s firing that triggered the need for a Special Counsel because it raised concerns that the President was trying to obstruct justice.

But wait — Rosenstein did not even mention the firing of Comey in his document appointing Mueller. Justice Department Regulations creating the position require that the Special Counsel “be provided with a specific factual statement of the matter to be investigated.” Firing Comey was not on the list. Moreover, contrary to the Regulations, Rosenstein specified no criminal conduct in the appointing document, broadly directing Mueller to investigate “any links and/or coordination between the Russian government and individuals associated” with the Trump campaign — a counter-intelligence matter, not a criminal investigation. We now know that Rosenstein had not one iota of evidence to justify that directive.

The Mueller Report states that “much of” the alleged acts of obstruction appeared in public reporting. Democrat claims that the President committed obstruction by calling the investigation a “witch hunt” and asking Comey “to go easy” on Flynn are risible.

Similarly, the president is allowed to vent that he wanted to fire Mueller. Venting, but not acting on it, is not obstruction. The investigation continued unabated, Mueller was never fired, no request by Mueller was denied by the Attorney General, and the investigation reached completion.

Where, then, was the obstruction?

Mueller claimed he could not “exonerate” the president of obstruction. But prosecutors never exonerate. It is not a phrase an honest prosecutor without an agenda would use. Prosecutors simply decide whether or not to indict. The exoneration statement was Mueller’s (and probably Weissmann’s) final poke in the eye to President Trump and a consolation prize to Democrats, who can now claim that because the President was “not exonerated,” he must be guilty.

Let us pray that his abusive Special Counsel investigation is the last “service” Mueller is allowed to perform for our country.

Victoria Toensing, founding partner of diGenova & Toensing, LLP, was Chief Counsel of the Senate Intelligence Committee and Deputy Assistant Attorney General, U.S. Department of Justice.