Other than the president himself, perhaps no public figure is more debated and discussed these days than Special Counsel Robert Mueller. On the Right, former Speaker Newt Gingrich has called him “the tip of the deep state spear aimed at destroying or at a minimum undermining and crippling the Trump presidency.” On the Left, best-selling author J.K. Rowling has tweeted: “If someone, somewhere, isn’t rushing Robert Mueller Christmas angels into production right now, I will be bitterly disappointed.”
Could both sides be off-base? As we enter the second year of Mueller’s sprawling investigation, with no apparent end in sight, Hanlon’s Razor teaches us to “Never attribute to malice that which is adequately explained by stupidity.” What if Mueller were not some sort of avenging angel, but rather just a bumbling bureaucrat? To put it somewhat differently, why assume that the same folks who brought us Amtrak, the U.S. Post Office, and Healthcare.gov somehow knocked it out of the park with the Office of Special Counsel?
Whatever else one might say about Washington DC, it has never been accused of being a meritocracy. Rather, it has always been a place where people trade on connections. Until President Obama came into town and shook things up a bit, for centuries our federal government was mostly overseen by a bipartisan old-guard of WASP privilege.
A Near-Parody Of Privilege
If anything, the story of Robert Swann Mueller III reads like a parody of that privilege. Born to a wealthy DuPont executive, Mueller was sent off to St. Paul’s, the elite New Hampshire boarding school (where he was John Kerry’s lacrosse captain), before matriculating at Princeton, New York University, and the University of Virginia. In 1966, he married Ann Cabell Standish, an alumnus of Miss Porter’s Finishing School in Farmington, Connecticut, and Sarah Lawrence College. (To his credit, Mueller did volunteer post-college with the Marines, and served bravely in Vietnam.)
After law school, Mueller had a short stint with a private law firm before hitching his wagon to William Weld, then the U.S. attorney in Boston. It was there that, as a young federal prosecutor, Mueller first made a name for himself in connection with some questionable mob cases.
As Alan Dershowitz recalled on “The Cats Roundtable” podcast, Muller is “the guy who kept four innocent people in prison for many years in order to protect the cover of Whitey Bulger as an FBI informer. … And that’s regarded in Boston of one of the great scandals of modern judicial history. And Mueller was right at the center of it.” Others have said the charges are unfounded. Whatever the truth, the Bulger affair did not hold him back.
Post-Boston, Mueller entered the revolving-door world of federal prosecutors and Big Law, bouncing around in various roles until, in 2001, he landed the job of a lifetime: director of the Federal Bureau of Investigation. His ascendancy did not come without words of warning. Time magazine quoted one former prosecutor, anonymously: “The cynics are saying, let him take over the FBI, it’ll be great theater, and he’ll run it into the ground in six months.” The former prosecutor was wrong. It only took Mueller one week.
Mueller’s FBI Missed Big Cases It Should Have Gotten
The Senate unanimously confirmed Mueller as FBI director on August 2, 2001, but Mueller did not show up for his swearing in for another 33 days. It was an ill-timed sabbatical. When the tragedy of 9/11 struck, Mueller surely recognized his absence would be noticed. Mueller tried to preempt those questions. Three days after 9/11, he claimed: “There were no warning signs that I’m aware of that would indicate this type of operation in the country.”
That was untrue. Indeed, the final House-Senate Joint Intelligence Committee report concluded that 9/11 might have been prevented had the FBI been on alert. In August 2001, during Mueller’s absence, the bureau become aware that two known terrorists—9/11 hijackers Nawaf al-Hazmi and Khalid al-Mihdhar—had arrived in the United States. The FBI’s San Diego field office even had an active informant connected to the two, but FBI headquarters never told the office to search for them. The FBI agent handling the informant in San Diego told Congress, “I’m sure we could have located them and we could have done it within a few days.”
One week after the 9/11 attacks, letters with anthrax were mailed to various media outlets and the offices of two U.S. senators, killing five and infecting 17 others. Coming as soon as it did after 9/11, hysteria naturally ensued. This was Mueller’s first true test as FBI director. The results were not pretty. As Mollie Hemingway noted, Mueller “completely botch[ed] the anthrax killer case, wasting more than $100 million in taxpayer dollars, destroying the lives of multiple suspects, and chasing bad leads using bad methods.”
Mueller first wrongfully accused Steven Hatfill. Taxpayers ended up paying Hatfill $6 million to make good on that error. Mueller then accused another man, Bruce Ivins, based on scientific conclusions by the National Academy of Sciences later determined to be flawed. Too late. A distraught Ivins killed himself. Mueller never apologized for either.
How Robert Mueller Handicapped the FBI
To appreciate why the FBI so inept at catching terrorists during these years, one has to understand the transformative changes Mueller inflicted on the Bureau. In law enforcement, the experience is key. One would expect it to be encouraged. But Mueller took the opposite tack, instituting a policy that required all FBI employees in any type of supervisory position for five years to either move to Washington to sit at a desk or else leave the FBI.
The policy drew a stinging rebuke from the FBI Agents Association, which said the program hobbled local field offices by forcing out seasoned agents. The numbers bear that out. In the first nine months of 2007 alone, according to NPR, some “576 agents found themselves in the five-and-out pool. Less than half of them – just 286 – opted to go to headquarters; 150 decided to take a pay cut and a lesser job to stay put; 135 retired, and five resigned outright.” Overall, Mueller’s “Five and Out Policy” devastated the FBI ranks.
For surrounding himself with an army of “yes men,” however, Mueller’s personnel practices were a smashing success. It was so much so that at the end of his stint, Mueller managed to talk his way into a two-year extension to his original ten-year term.
That is how Mueller came to still be in charge on April 15, 2013, when two homemade bombs detonated near the finish line of the Boston Marathon. Three persons (one an eight-year-old boy) were killed and hundreds were injured. More than a dozen runners lost limbs.
Once again, a subsequent congressional investigation uncovered that Mueller’s FBI had been notified but did not act in time. In March 2011, the Russian intelligence agency FSB cabled the FBI, warning that the man who would become the lead bomber, a Chechen immigrant named Tamerlan Tsarnaev, was known to have associated with militant Islamists. The FBI investigated but quickly cleared him.
The FSB in September 2011 sent a second cable, this time to the CIA. Again, the FBI did not act. In 2012, Tsarnaev traveled to and spent six months in Dagestan, a terror-filled Russia region next to Chechnya. The FBI was alerted to his travels but decided neither to detain nor question him.
Once again, Mueller did not apologize. Rather, he told Congress the agent who handled the matter “did an excellent job in investigating, utilizing the tools that are available to him in that kind of investigation. … As a result of this, I would say, thorough investigation, based on the leads we got from the Russians, we found no ties to terrorism.”
Robert Mueller Finally Decides to Talk Russia
Four years later, we now have a Mueller-Russians redux. Shortly after getting turned down for a second stint as FBI director under President Trump, Mueller accepted an appointment as special counsel, tasked with investigating the man who had just turned him down for a job. While the theory has never been completely sketched out, the nub of the Russia collusion case is that Russia or the Trump campaign had something to do with WikiLeaks’ release of emails pilfered from the Democratic National Committee and Hillary Clinton’s email servers.
One cannot legitimately accuse Mueller of botching the Russia collusion investigation since he has never actually conducted one. Presumably, someone legitimately investigating the source of the WikiLeaks emails would ask WikiLeaks who gave it to them. WikiLeaks’ founder, Julian Assange, has been locked in Ecuador’s London embassy for years, so there would be no difficulty finding him. Yet last September, Assange tweeted out that “Robert Mueller’s team … has [never] bothered to contact WikiLeaks or me, in any manner, ever.”
Meanwhile, even the “Resistance” has grown frustrated with Mueller’s plodding. They want Trump out yesterday. They may have a point. The president made his fortune in the rough-and-tumble world of New York real estate. Given the vast expanse of the U.S. criminal code, any capable litigator, with a handful of subpoenas, could find scores of technical “crimes” committed by any businessman. So why is Mueller taking so long?
Anyone familiar with the ways of our government will know. Vested with a basically unlimited budget, Mueller first set about spending the money. He assembled a staff that would make “Ben-Hur’s” casting director envious. His army of mini-Muellers then began investigating those near Trump for every crime imaginable, no matter how removed from Russia, then charging them with very broad indictments, before pleading those charges down in exchange for cooperation. All with lots of media leaks in between.
In some ways, this is a classic prosecutorial approach. If done competently, it can be quite effective. If not, however, prosecutors can find themselves crashing into a brick wall known as the federal judiciary. Of late, that has been Mueller’s fate. In just the last two weeks, Mueller minions have embarrassed themselves in three different cases across three separate federal courthouses.
Embarrassments One, Two, and Three
First up was Judge Kimba Wood in the Southern District of New York, where a Mueller-referred team of FBI agents raided and walked off with pretty much the entire office of President Trump’s personal attorney, Michael Cohen. The U.S. Attorney’s Office proposed that it conduct its own privilege review on behalf of Cohen. Wood quickly pooh-poohed that idea and instead ordered the prosecutors to turn over the seized materials to a special master and to not look at any of the documents until that review is complete.
Next up was Judge T.S. Ellis III in the Eastern District of Virginia, where Paul Manafort, President Trump’s second of three campaign managers, is being prosecuted for alleged banking fraud dating back to 2005. Ellis berated the special counsel’s office for prosecutorial overreach, for its pursuit of crimes that “manifestly don’t have anything to do with the campaign or with Russian collusion.” Ellis observed: “I don’t see what relation this indictment has with anything the special counsel is authorized to investigate …. What we don’t want in this country is we don’t want anyone with unfettered power.”
The third and most humiliating episode came in the District of Columbia, where Judge Dabney Friedrich is overseeing the indictments relating to the “Russian troll farm.” By way of reminder, those are the Russians who allegedly tried to sow dissension among these otherwise United States of America through Facebook click-bait ads.
Former prosecutor Andrew McCarthy has called the indictments a “publicity stunt,” pointing out that Mueller knows the individual troll farmers will stay in Russia, so the allegations will never be tested in court. Internet users also instantly noted that most of the indictment had been plagiarized from a 2015 Radio Free Europe article. Still, as publicity stunts go, this was a good one, as the media gave the indictments unquestioning coverage.
This Would Be Funny If It Weren’t Serious
There was really only one way Mueller could have screwed it up: indict a company. For some reason, Mueller indicted three. Unlike individual defendants, who get put in jail if they return to America for their arraignments, corporate defendants appear through counsel, who after court go out for single-malt Scotch.
Lo and behold, a few days ago one of the indicted Russian companies appeared in court, represented by a team of hard-nosed defense attorneys who proceeded to demand all manner of burdensome evidentiary discovery from Mueller. The special counsel responded by requesting a lengthy adjournment. Judge Friedrich gave that a quick no, basically telling the Mueller team to go try its case. I would not hold my breath.
At this point, every day seems to bring more bad news for Mueller. Last August, Vanity Fair breathlessly reported that: “Robert Mueller Just Formed An Alliance That Should Terrify Trump.” To circumvent the president’s pardon power, Mueller formed an alliance with New York State Attorney General Eric Schneiderman, who could charge unpardonable state crimes. Great idea in theory; in practice, not so much.
For years, it has apparently been an open secret in certain circles that Mr. Schneiderman enjoys abusing women (“role-playing,” in his parlance). Yet a number of friends told one of his victims that she should “keep the story to herself, [because] Schneiderman was too valuable a politician for the Democrats to lose.” The only person willing to blow the whistle on the record was a certain then-TV host, who in 2013 tweeted that Schneiderman was “worse than Spitzer or Weiner” (two other local pols took down in sex scandals). No one followed up.
Had Mueller, for 12 years the nation’s number one law enforcement officer, ever heard those rumors? Someone ought to ask him.
If Mueller did know, it may not have made any difference. To date, in his massive investigation, Mueller has only publicly granted immunity to one person, George Nader. Who is he? The Associated Press has reported that in 2002, Nader was convicted in the Czech Republic of ten cases of sexually abusing minors.
According to other media reports, in 1991 Nader pled guilty to a federal child pornography charge, and in 1985 he faced a similar charge in federal court involving allegations of importing from the Netherlands magazines depicting nude boys. A judge dismissed the 1985 charges based on an invalid search warrant. This is Mueller’s star witness.
It’s Not Special Counsels, It’s Mueller
Special counsel has not always been this bad. In the early years of the Reagan administration, a panel of federal judges appointed the late Leon Silverman as special prosecutor to investigate Labor Secretary Raymond Donovan, who was facing mob-related allegations.
Silverman had an earlier stint as an AUSA, but made his name in the private sector, as the most sought-after corporate litigator in America. He was considered to be a giant of the New York bar, with unquestioned integrity and skill. His reputation was forged in the courtroom, not in the DC cocktail circuit. He plainly did not need the gig. [Full disclosure: I started my legal career at Silverman’s firm, a few years after his retirement.]
Silverman proceeded to quickly and effectively investigate the allegations. In his report, Silverman identified “disturbing” evidence, but ultimately concluded that “there was insufficient credible evidence to support a prosecution of Secretary Donovan for any of the alleged wrongdoing or for his statements concerning such allegations.” Donovan bristled at the findings, but even he acknowledged that Silverman had treated him with “courtesy and professionalism.” No one questioned Silverman’s nonpartisanship.
What a difference a generation makes. If future presidential administrations are to be subjected to special/independent counsel/prosecutors, a return to that original standard would be warranted. Appointments should be placed in the hands of Article III judges, not bureaucratic hacks. Supervision should be as well. Appointees should be accomplished attorneys who have proven their skills through courtroom skills, not political appointments. Until then, we should all buckle our seatbelts, as this is going to be a long and bumpy ride.