No basis to attack validity of Mueller probe
By ERWIN CHEMERINSKY | Special to The Sacramento (Calif.) Bee | Published: February 9, 2018
It is increasingly clear that President Donald Trump and the Republicans are engaging in a campaign to smear and discredit special counsel Robert Mueller. All of this is an effort to undermine an investigation into whether serious federal crimes occurred that potentially implicate individuals at the highest levels of the government, including Trump and members of his family.
The need for an independent criminal investigation is clear. Was there illegal collusion between Trump campaign officials and Russians? Has there been a cover-up that constitutes obstruction of justice? If so, who is responsible?
Contrary to the president’s assertion, this is not a partisan “witch hunt.” Already two individuals have plead guilty to federal crimes. George Papadopoulos plead guilty to lying to the FBI about his efforts, while a Trump campaign official, to set up meetings with Kremlin-connected sources who claimed to have damaging information about Hillary Clinton. Former national security adviser Michael Flynn plead guilty to “willfully and knowingly” making “false, fictitious and fraudulent statements” to the FBI about communications exchanged with a Russian envoy shortly after Trump took office.
Paul Manafort, Trump’s campaign manager for a time, and Rick Gates, his aide, have been indicted for the crime of “conspiracy against the United States.” They have been charged with operating as agents of foreign governments without registering as required by the law and laundering over $75 million in offshore accounts.
Rather than let this investigation go forward, Trump and the Republicans are engaged in a concerted effort to besmirch Mueller. Most recently, on Feb. 2, Trump released a three-and-a-half-page document prepared by the staff of Republican Rep. Devin Nunes. The memo purports to show that the FBI engaged in misconduct in seeking a warrant from the Foreign Intelligence Surveillance Court to engage in surveillance of Carter Page, a former Trump campaign adviser. The claim is that the FBI did not disclose that it was relying on a dossier prepared by a former British intelligence agent, Christopher Steele, which had been funded by Democrats.
The document was released despite the fact that Christopher Wray, the director of the FBI appointed by Trump, expressed “grave concerns about material omissions of fact that fundamentally impact the memorandum’s accuracy.” Indeed, there is no way to assess the accuracy of the Nunes memo, and the basis for the surveillance of Page, without seeing what the government presented in its application for a warrant to the Foreign Intelligence Surveillance Court and that remains highly classified. In fact, there are now reports that the government provided the court full information, including about Steele and his backers.
It is significant that the surveillance of Page began in 2013, when investigators learned that he was being targeted for recruitment by a Russian agent. This was long before Steele prepared his dossier. The Foreign Intelligence Surveillance Court, composed of federal judges, three times approved the surveillance of Page, indicating that there was likely a strong basis for this. But all of this doesn’t matter to Republicans who have latched onto the Nunes memo as a basis for seeking an end to the entire investigation.
The release of the Nunes memo is just the latest effort by Trump and the Republicans to smear Mueller. They repeatedly have charged that Mueller has a conflict of interest. But the U.S. Department of Justice looked into this and cleared Mueller before he was appointed. The claimed conflicts are frivolous — that Mueller was a professional acquaintance of James Comey, that he was employed at a firm that represented Trump associates, that a long time ago he had a dispute over the amount of fees at a Trump golf course. Some members of Mueller’s staff have been attacked for having made contributions to Democratic candidates, even though the law is clear that political party affiliation can play no role in hiring decisions.
This approach of attacking the investigation is not new for Trump. He often responds to news of evidence linking him or his campaign to wrongdoing by asking for a new investigation of “crooked Hillary.” He charged President Barack Obama with engaging in wiretapping his phones even though it has been shown that never happened.
My fear is that all of this is a prelude to Trump firing Deputy Attorney General Rod Rosenstein, who appointed Mueller, and then naming a successor to Rosenstein to fire Mueller. But ending the investigation would mean that potentially serious crimes, that go to the very integrity of our electoral system, would not be investigated and prosecuted.
It would violate the most important precept of constitutional governance and the rule of law: No one, not even the president, is above the law.
Erwin Chemerinsky is dean and professor of law at the University of California, Berkeley School of Law.