The White House tried hard Wednesday night to downplay the significance of the Justice Department appointing a special counsel to investigate possible coordination between President Donald Trump's associates and Russian officials. Robert Mueller, who spent 12 years as FBI director, will lead the probe.
In their account, Deputy Attorney General Rod Rosenstein called up White House Counsel Don McGahn at 5:30 p.m. to give him a head's up that he was going to make the announcement half an hour later. A senior administration official told reporters that Trump was "unbelievably calm and measured." The press office then put out this statement under the president's name: "A thorough investigation will confirm what we already know — there was no collusion between my campaign and any foreign entity. I look forward to this matter concluding quickly."
Undercutting the party line a little, though, the president took to Twitter this morning to express frustration about the mounting investigation and once against present himself as the victim of a witch hunt:
This is the single greatest witch hunt of a politician in American history!
— Donald J. Trump (@realDonaldTrump) May 18, 2017
With all of the illegal acts that took place in the Clinton campaign & Obama Administration, there was never a special counsel appointed!
— Donald J. Trump (@realDonaldTrump) May 18, 2017
Remember: There would be no special counsel if Trump had not fired James Comey (allegedly after asking him to end the FBI's investigation into Michael Flynn) and then confessed that he did so with Russia on his mind. This is yet another reminder of just how badly the inexperienced president's impulsive decision and its bungled rollout has backfired on him.
In the short-term, politically, this newest development might give Republicans and the White House a little bit of breathing room. They can offer support for the special counsel to deflect many of the difficult and important questions that remain unanswered. But, in truth, the long-term danger to Trump's presidency from the Russia scandal is greater today than it was Wednesday.
As long as Mueller's probe drags on, a huge dark cloud will hang over the White House. Who knows just how high up this investigation might go? Or, very hypothetically at this point, who in the Trump orbit might turn state's witness if offered a deal to avoid jailtime? And Mueller is respected enough (more on that below) that any attempt to neuter him, or even just rein him in, could lead to a Constitutional crisis. In that way, Trump just lost a little more control over the fate of his presidency.
How aggressive the Russia investigation will become is now up to Mueller. Rosentein's order charges Mueller with investigating "any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump," as well as "any matters that arose or may arise directly from the investigation." Mueller is also empowered to probe possible attempts to stymie his investigation. That language gives him leeway to interpret his mandate broadly if he chooses. It also might mean he goes after people who leaked classified information related to the bureau's Russia investigation. He can continue his work however long he wants, and he is broadly "authorized to prosecute federal crimes arising from the investigation."
That means this could last for years - potentially through the president's 2020 reelection campaign.
The Wall Street Journal's editorial board, primarily concerned with advancing conservative tax reform though Congress, says Rosenstein made a "mistake" by "bending to political pressure" and worries it will hinder the GOP agenda: "These expeditions rarely end well for anyone . . . It opens up years of political risk to the Trump Administration . . . The manner of (Mueller's) appointment and the subject he's investigating make him de facto untouchable even if he becomes an abusive Javert like Patrick Fitzgerald . . . Mueller will be under pressure to bring criminal indictments of some kind to justify his existence. He'll also no doubt bring on young attorneys who will savor the opportunity to make their reputation on such a high-profile investigation. . . . He is highly attuned to the political winds. As they say in Washington, lawyer up."
Pete Wehner, a former senior aide to Bush 43 who was called to testify before a grand jury during the investigation into the leak of CIA agent Valerie Plame's identity, told Politico: "There's always a mood in a White House. If you have a special prosecutor, that can dampen the spirit. It just changes things. It makes life more complicated (even) for people who are completely innocent. If you're guilty, obviously it makes it much more difficult. People are fearful whatever they've done and transgression they've committed is going to be revealed."
"The risk is that you lose control of your agenda," added Robert Luskin, a Washington white-collar attorney who represented Karl Rove in the Plame investigation, as well as a pair of Clinton senior officials during Whitewater. "It's an enormous distraction. It's an energy suck. As long as the clouds hang over a presidency it becomes much more difficult to get anything else done."
This is why White House officials and GOP leaders in Congress have so strongly resisted a special counsel until now.
Two days ago, @PressSec said this of a special prosecutor: "There’s, frankly, no need for a special prosecutor. "
— Jeff Zeleny (@jeffzeleny) May 17, 2017
Empowering Mueller is unlikely to contain the fallout from Trump firing Comey or stop the ongoing congressional investigations.
The leaders of the Senate and House committees conducting their own inquiries pledged Wednesday night to move forward, setting up a complex landscape of potentially conflicting investigations — and competing goals. From the Post's Sean Sullivan, Ed O'Keefe, Elise Viebeck and Mike DeBonis: "Senate Intelligence Committee Chairman Richard Burr (R., N.C.), whose panel is conducting one of five congressional probes that are directly or indirectly looking into Russian activity, was among those who hailed the news while also declaring that 'our task hasn't changed.' " The Senate Judiciary and Intelligence committees also both asked the FBI for documents related to Comey, who was closely overseeing the Russia investigation until Trump fired him.
Democrats cheered the news, but many also said that there still needs to be an independent investigation. "An independent commission doesn't govern the FBI investigation, an independent commission doesn't make charging decisions," said Rep. Adam Schiff of Calif., the ranking Democrat on the House Intelligence Committee. "I think they're complementary, not in competition with each other."
The Washington Post Editorial Board says the special counsel should not let Congress off the hook and makes an important point about what an independent investigation can do that Mueller cannot: "The special counsel's job is only to look for criminal behavior and, if he finds any, to prosecute the wrongdoers. His job is not to inform the public or to pass judgment on actions that may have been unwise, inappropriate or unethical - but did not violate the law. . . . A full accounting is likely to emerge only if Congress appoints a special commission like the one that investigated the 9/11 attacks."
A frequently asked question: What's the difference between a "special counsel" and an "independent counsel"?
The Post's Matt Zapotosky explains: "The independent counsel was a position established by a law that has expired, in part because of dissatisfaction over the independent investigations of Bill Clinton. Unlike the special counsel, the independent counsel was formally appointed by a panel of judges from the U.S. Court of Appeals for the District of Columbia Circuit, and those judges oversaw the independent counsel's work. . . . A special counsel has been appointed like this only one other time — when Attorney General Janet Reno named former senator (Jack) Danforth to review the events surrounding the law enforcement assault on the Branch Davidian compound in Waco, Texas, in 1993." (Fitzgerald remained U.S. attorney for Chicago during the Plame investigation, so he wasn't totally outside of DOJ.)
If you don't know Mueller
He brings to this role a proven willingness to take on a sitting president. From a Post profile by Matea Gold, Rosalind Helderman and Tom Hamburger: "In a high-drama episode in 2004, he and then-Deputy Attorney General Comey [who remains his friend] were preparing to resign from their positions if President Bush reauthorized the National Security Agency's warrantless wiretap program without changes. Bush backed down. Former colleagues said the ex-Marine Corps officer and former U.S. attorney, who was sworn in as FBI director a week before the 2001 terrorist attacks, is uniquely suited to the task. A former deputy attorney general who later did a stint prosecuting homicide cases in Washington, Mueller is a known as a no-nonsense, relentless prosecutor with a deep reverence for the rule of law. 'The most devastating thing that can happen to an institution is that people begin to shade and dissemble,' he told Washingtonian magazine in 2008."
The former director has demonstrated an impressive, lifelong commitment to public service. Some quick biographical details: "Mueller grew up in Philadelphia and went to St. Paul's School, the elite prep school in New Hampshire, where he played hockey with John F. Kerry . . . At Princeton, he was inspired to join the Marine Corps by a former student who died in Vietnam . . . He led a rifle platoon in Vietnam, eventually receiving numerous commendations, including the Purple Heart and the Bronze Star. After graduating from the University of Virginia Law School, Mueller worked for a dozen years as an assistant U.S. attorney in San Francisco and Boston. Mueller succeeded William Weld as U.S. attorney in Boston and then went to Washington in 1989 as an assistant to Attorney General Richard Thornburgh, eventually rising to be chief of the criminal division. During his tenure, he worked on high-profile cases such as the prosecution of former Panamanian dictator Manuel Antonio Noriega and the terrorist bombing of Pan Am Flight 103."
Mueller cares more about making his community safer than making a buck: "After a stint at a private law firm, Mueller took a big pay cut to work as a homicide prosecutor in Washington for U.S. Attorney Eric H. Holder Jr. — a move that friends said showed how much prosecuting was in his blood. Holder told the Post that Mueller called him and explained he was "shaken" by killings in the city and wanted a chance to be a line prosecutor and do something about it. Holder called the conversation 'one of the most extraordinary calls I've ever gotten.' Holder later tapped Mueller to serve as U.S. attorney in San Francisco. . .
"As a partner at WilmerHale, which Mueller joined in 2014, he was frequently tapped by major corporations and institutions to conduct complex, sensitive internal investigations. Among his recent clients was the defense contractor Booz Allen Hamilton, which hired him to review the company's security procedures after one of its employees was charged with stealing classified data from the NSA. Another was the National Football League, which tapped Mueller to examine how the league handled a domestic abuse case involving former Baltimore Ravens running back Ray Rice."
Rod Rosenstein saves himself
Rosenstein's 6 p.m. announcement that Mueller has agreed to take on the duties of special counsel seemed timed, at least in part, to take some of the sting out of what is sure to be a contentious visit to the Hill Thursday. Behind closed doors, he will give a classified briefing to the full Senate at 2:30 p.m. Thursday about the firing of Comey, and he'll return to brief House members Friday morning at 10 a.m.
He took charge of overseeing the Russia probe after Attorney General Jeff Sessions recused himself because he had given false testimony to Congress about his contacts with the Russians.
Rosenstein, a Republican, was appointed U.S. attorney for Maryland by Bush in 2005. But the state's Democratic senators, Ben Cardin and Barbara Mikulski, asked Barack Obama to keep him onboard for the past eight years. With hundreds of hyper-ambitious liberals who would have killed for the U.S. attorney posting in a lawyer-heavy state like Maryland, his staying power in the Obama years was truly remarkable. This is how he got confirmed as deputy A.G. three weeks ago by a vote of 94-6, an unusual show of support in this polarized moment.
But last week Rosenstein squandered all the goodwill he had earned from the left over the years by writing the thin-gruel memo justifying Comey's termination. Citing Comey's handling of the Hillary Clinton email investigation, it did not even read like something that was written by an attorney. That raised a host of questions about Rosenstein's independence and judgment.
Making matters worse for him, the White House made a strategic decision to blame the Comey firing on Rosenstein as much as possible. Sources told the Post last week that Rosenstein threatened to resign if West Wing aides kept insisting publicly that the president acted only because of his recommendation.
Rosenstein, who grew accustomed to positive press coverage over the years, was buffeted by a relentless storm of negative commentary from the elite media and the legal trade press for the past eight days.
Dozens of senators came to seriously regret their vote. Chris Coons, who enthusiastically voted to confirm Rosenstein on April 25, said Wednesday that his "credibility is on a very shaky foundation." Dick Durbin told USA Today that Rosenstein let himself get "set up." Richard Blumenthal said he was "used" and had "his reputation exploited" by the White House. All three of those Democrats sit on the Judiciary Committee, which has oversight of the Justice Department.
"Former colleagues said Rosenstein's move (Wednesday night) may help restore his battered reputation among current and former government lawyers," the Post's Devlin Barrett, Sari Horwitz and Matt Zapotosky write. "He got absolutely pummeled by people that he knows," said a former senior Obama administration lawyer, who spoke on the condition of anonymity to talk candidly. "I think this move, as so often happens in Washington, where there is the opportunity to wash away your sins, was a thorough scrubbing."
"This is precisely what Rosenstein needed to do for all parties, but particularly for his own honor," Dana Milbank argues in his column. "It's often said that all that is necessary for the triumph of evil is for good men to do nothing. On Wednesday night, Rod Rosenstein did something."
Democrats say that they're still going to push Rosenstein hard this afternoon and tomorrow about Comey, how his memo came to be and the scope of Sessions's recusal. Why, for example, did the attorney general play a key role in firing Comey when he is not supposed to have anything to do with the Russia investigation?
Some Republicans also promise they too will ask tough questions. Sen. Jeff Flake (R., Ariz.), a member of the Judiciary Committee, told Paul Kane that still he needs to know if Rosenstein knew about Comey's one-on-one interactions with Trump (the dinner and the Oval Office sit-down) before he agreed to write the memo justifying the director's ouster.
There is a bear in the woods
• "House majority leader to colleagues in 2016: 'I think Putin pays' Trump," by Adam Entous from Kiev, Ukraine: "A month before Donald Trump clinched the Republican nomination, one of his closest allies in Congress - House Majority Leader Kevin McCarthy — made a politically explosive assertion in a private conversation on Capitol Hill with his fellow GOP leaders: that Trump could be the beneficiary of payments from Russian President Vladimir Putin. 'There's two people I think Putin pays: Rohrabacher and Trump,' McCarthy (R., Calif.) said, according to a recording of the June 15, 2016, exchange, which was listened to and verified by the Washington Post. Rep. Dana Rohrabacher is a Californian Republican known in Congress as a fervent defender of Putin and Russia. . . . Some of the lawmakers laughed at McCarthy's comment. Then McCarthy quickly added: 'Swear to God.'"
Paul Ryan immediately interjected, stopping the conversation from further exploring McCarthy's assertion, and swore the Republicans present to secrecy: The Speaker instructed his Republican lieutenants to keep the conversation private, saying: "This is an off the record. . . . No leaks. . . . This is how we know we're a real family here." (Read Adam's full story. Read a five-page transcript of the conversation.)
Why does no one trust politicians and their spinmeisters? Remember this paragraph the next time a lawmaker's flack denies a Washington Post story: "When initially asked to comment on the exchange, Brendan Buck, a spokesman for Ryan, said: 'That never happened,' and Matt Sparks, a spokesman for McCarthy, said: 'The idea that McCarthy would assert this is absurd and false.' After being told that The Post would cite a recording of the exchange, Buck, speaking for the GOP House leadership, said: 'This entire year-old exchange was clearly an attempt at humor.' . . . 'This was a failed attempt at humor,' said Sparks."
Rohrabacher spokesman Ken Grubbs said his boss has been a consistent advocate of "working closer with the Russians" to combat radical Islamism: "The congressman doesn't need to be paid to come to such a necessary conclusion."
• McCarthy found Rohrabacher on the House floor Wednesday night and told him the remark was not to be taken seriously. From the Post's Mike DeBonis and David Weigel: Rohrabacher compared the situation to a lunge at humor that had haunted him for years. "You have to be very careful when you're using humor," Rohrabacher said in a short interview. "I remember that I was trying to make fun of the scientists who claimed that cow farts make global warming. So at a hearing, I said, 'Oh, do you think the dinosaurs disappeared because of dinosaur flatulence?' To this day, you have these environmental wackos saying, 'Dana Rohrabacher believes that flatulence killed the dinosaurs.' It was humor, but you've got to watch out for it. Kevin didn't mean any harm."
• Trump campaign operatives, including Michael Flynn, had at least 18 undisclosed contacts with Russian officials and others with Kremlin ties in the last seven months of the presidential race, Reuters' Ned Parker, Jonathan Landay and Warren Strobel report: "The previously undisclosed interactions form part of the record now being reviewed by FBI and congressional investigators probing Russian interference ... Six of the previously undisclosed contacts described to Reuters were phone calls between Kislyak and Trump advisers, including Flynn."
• Flynn told transition team officials weeks before Trump took office that he was under federal investigation for secretly working as a paid lobbyist for Turkey during the campaign, the New York Times' Matthew Rosenberg and Mark Mazzetti report: "Despite this warning, which came about a month after the Justice Department notified Mr. Flynn of the inquiry, Mr. Trump made Mr. Flynn his national security adviser. The job gave Mr. Flynn access to the president and nearly every secret held by American intelligence agencies. Mr. Flynn, who was fired after 24 days in the job, was kept on even after the acting attorney general, [Sally Yates], warned the White House that he might be subject to blackmail by the Russians for misleading [Pence] about the nature of conversations he had with the Russian ambassador to Washington." This news comes a day after the Times reported that Trump asked Comey to stop investigating Flynn a day after his resignation.
• One of the Trump administration's first decisions about the fight against ISIS was made by Flynn weeks before he was fired - and it conformed to the wishes of Turkey, whose interests he'd been paid more than $500,000 to represent, McClatchy's Vera Bergengruen reports: "The decision came 10 days before [Trump] had been sworn in as president, in a conversation with [Obama's national security adviser, Susan Rice], who had explained the Pentagon's plan to retake the Islamic State's de facto capital of Raqqa with Syrian Kurdish forces whom the Pentagon considered the U.S.'s most effective military partners. Obama's national security team had decided to ask for Trump's sign-off, since the plan would all but certainly be executed after Trump had become president. Flynn didn't hesitate. According to timelines distributed by members of Congress in the weeks since, Flynn told Rice to hold off, a move that would delay the military operation for months. . . . Now members of Congress, musing about the tangle of legal difficulties Flynn faces, cite that exchange with Rice as perhaps the most serious: acting on behalf of a foreign nation - from which he had received considerable cash — when making a military decision. Some members of Congress, in private conversations, have even used the word 'treason' to describe Flynn's intervention. "
• Flynn and Paul Manafort have emerged as key figures in the FBI's investigation, NBC News' Tom Winter and Ken Dilanian report: "Officials say multiple grand jury subpoenas and records requests have been issued in connection with the two men during the past six months . . . The FBI, with the help of the Treasury Department, the CIA and other agencies, is examining evidence of possible contacts, money transfers and business relationships between a variety of Trump associates and Russian officials."