COMMENTARY: An investigation in search of a crime

What we have here, folks, is a special counsel desperately searching for a crime. A crime, that is, that has something to do with Russian collusion in last year’s presidential election. So far, no crime.

What we have with Special Counsel Robert Mueller is two indictments totally unrelated to anything having to do with Russian collusion. And further, we have rumors that the special counsel’s operation is looking into the Trump family’s finances from recent times back to years ago. Exactly what this has to do with Russian collusion in last year’s election is unclear.

So, first, we have Trump’s former and very short-term campaign chairman, Paul Mannafort, indicted on a tax issue. He apparently laundered some money derived from representing the government of the Ukraine (which definitely isn’t Russia) through some off-shore banks. Mannafort also failed to register as a foreign agent. He should have, but this “crime” is rarely prosecuted.

Reid Beveridge

Second, we have former and very short-term National Security Adviser Michael Flynn indicted for lying to the FBI. Lying to the FBI is a crime. The old saw is that if the FBI asks you a question, do either one of two things. One, answer truthfully. Or, two, refuse to answer at all. You don’t go to prison for refusing to answer. This is not the English monarchy under George III. But you can’t lie, either.

No less than Allan Dershowitz, a Harvard law professor, is appalled at Mueller’s investigation while, at the same time, understanding exactly what the special counsel is doing. Any prosecutor will often start out with lesser suspects, indict them for something (see above) and then attempt to get them to testify against the real target of the investigation. Hence, the theory here is that if Mannafort and Mueller are indicted, they will “flip” and testify against President Trump.

In the course of all this, such prosecutors sometimes will call those folk before a federal grand jury, where they perjure themselves by failing to tell the whole truth. So if they tell a half-truth, they are indicted for perjury. This is basically what happened to then-Vice President Dick Cheney’s chief of staff, I. Lewis “Scooter” Libby. He was called before a grand jury investigating the “outing” of CIA operative Valerie Plame.

Ms. Plame had been identified in one of the late, great Robert Novak’s newspaper columns as a CIA agent, which she had been. It is a crime to name a CIA undercover agent. The target in this case was Karl Rove, then President George Bush’s chief political strategist. Rove was never charged with anything.

Only trouble was that Libby hadn’t outed her, either. Novak’s source had been Deputy Secretary of State Richard Armitage. Worse, Ms. Plame hadn’t been an undercover agent for more than five years, which is the threshold for “outing.” So, no underlying crime.

Which gets us back to Mueller. The special counsel was “created” by the Justice Department when Attorney Gen. Jeff Sessions recused himself from any investigation of Russian collusion in the 2016 presidential campaign. Mueller, a former FBI director, was appointed. However, unlike all previous special counsels or special prosecutors, no crime was specified. Therefore, ever since, Mueller has investigating a “situation,” not a crime.

For one thing, as Prof. Dershowitz points out, collusion with a foreign government in an election is not a crime. Perhaps it should be, but it isn’t now. It may be despicable, immoral and unethical. But not a crime.

Further, Flynn talking with the Russian ambassador a month or so after the election, at a time when Donald J. Trump was president-elect and when Flynn was the presumptive next national security adviser, is hardly a crime. The accusation, of course, is that it is a violation of the Logan Act, which prohibits private citizens from conducting foreign policy on behalf of the United States. Except that the folks working on the transition aren’t private citizens. They are government employees by that time.

Flynn’s mistake here, for which Trump fired him, was not talking with the ambassador or even discussing the sanctions then-President Trump had just imposed on Russia. Rather, it was lying to Vice President Pence and then allowing Pence to tell the same tale on national television.

Now that’s a firing offense to be sure. Lying to your boss, or even your deputy boss, is a firing offense every time. As a result, what we have here with General Flynn is what Fox News opiner Laura Ingraham calls “the perjury trap.” It is when you are questioned by law enforcement and lie.

And what we have with Mannafort is a tax issue the FBI was investigating long before anyone thought of a special counsel. It true, it is a crime that should be prosecuted routinely by the Justice Department’s Criminal Division. Justice’s career prosecutors handle tax offenses routinely. You don’t need any special counsel for that.

Finally, it is unclear whether either Mannafort or Flynn is a good candidate to “flip” on President Trump. For one thing, and the main thing, it is far from clear that the Trump campaign collaborated or colluded with the Russians. That the Russians interfered in the 2016 presidential election is almost beyond dispute.

However, then candidate Trump saying, “wouldn’t it be better if we got along with the Russians,” isn’t collusion. Nor does it make President Trump a buddy of Russian President Vladimir Putin. In fact, if Putin preferred Trump to Hillary Clinton last year, he surely must be disappointed now.

The Wall Street Journal is right. Robert Mueller should either find a crime associated with Russian collusion, or he should wind up his work and issue a report. Fini. The end.

EDITOR’S NOTE: Reid K. Beveridge has covered politics in Texas, Iowa, Wisconsin, Delaware and Washington, D.C. He is now retired at Broadkill Beach.

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