Is Donald Trump looking forward to Robert Mueller’s report, or does he think it shouldn’t exist at all? It depends on the tweet. After more testimony has publicly emerged from Peter Strzok, Lisa Page, and Bruce Ohr, legitimate questions are being raised about how the FBI began its counterintelligence probe in the first place, and whether they hoodwinked the FISA court over the Steele dossier. At first, Trump tweeted that Mueller should include all of this in his special-counsel report, now expected sooner rather than later:
An hour later or so, Trump changed his mind. He argued that the evidence showed that Mueller’s appointment was illegitimate in the first place. If a criminal predicate didn’t exist, then neither should Mueller’s report, Trump insisted:
These developments aren’t really all that new, and neither is the argument that this didn’t require a special counsel due to lack of a criminal predicate. NRO’s Andrew McCarthy has argued that for nearly two years, and on much more solid ground. These latest nuggets from previously confidential testimony — which, it should be noted, may be taken out of context from the overall testimony — merely reinforce McCarthy’s argument, or more accurately one of his arguments.
However, as McCarthy also wrote last month, that doesn’t change the fact that Mueller was appointed to the position and has to report on his activities. Now that he’s here, Trump’s stuck with him — and the report, which is required by statute:
As I have many times noted, the assignment of a counterintelligence investigation to a special counsel was inappropriate. The regulations authorize appointment of a special counsel only when (a) there is a factual predicate for a criminal investigation or prosecution, and (b) the Justice Department has such a profound conflict of interest that it cannot ethically conduct the investigation, requiring the appointment of a lawyer from outside the government.
Here, specifically as to President Trump and any alleged connections between Trump campaign officials and the Russian government, no factual basis has been offered to believe there was a criminal conspiracy or other prosecutable penal offenses.
Moreover, there is no conflict of interest so severe that Justice Department disqualification was called for. (A disqualifying conflict is supposed to stem from the facts that give rise to a necessary criminal investigation or prosecution – here, to repeat, no such facts have been offered, at least publicly.)
All that said, however, Deputy Attorney General Rosenstein’s decision to appoint a special counsel may not be overturned. The regulations expressly state that they do not create enforceable rights to challenge alleged violations in court.
Therefore, Mueller is conducting the counterintelligence probe of Russia’s interference in the campaign, regardless of whether he should have been appointed.
The only way around that would be to fire Mueller, but that doesn’t truly solve the problem. Once out of the Department of Justice harness, Mueller might feel empowered to report far more broadly than he can within DoJ policies. Furthermore, he’d likely just go to Congress to spill all he knows. At this late stage, complaining about the existence of a report Mueller is required to produce is the equivalent of Old Man Shouts At Clouds.
So Trump should have just stuck with the first tweet and the last, which read simply “…..THIS SHOULD NEVER HAPPEN TO A PRESIDENT AGAIN!” True enough, but again, it doesn’t change the fact that it’s reality for now. The best that Trump can hope is that Mueller might have a few critical points to make about how this mess got started when his report does get filed. And when might that be? A filing from Mueller’s office this morning in Rick Gates’ sentencing could suggest it’s farther off than assumed:
NEW: Rick Gates — still cooperating! Mueller's office asks to delay his sentencing again, as Gates "continues to cooperate with respect to several ongoing investigations." They ask for another 60 days until the next update pic.twitter.com/dnIPvc57BF
— Zoe Tillman (@ZoeTillman) March 15, 2019
Another 60 days to cooperate in ‘several [other] ongoing investigations’? Great. CNN editor Susan Hennessey cautioned against reading too much into that request, however:
This sounds more like a request made on behalf of other prosecutors and investigators more than it does a hint of more to come from Mueller. Gates has already been charged, and nothing in his indictment suggested any Russia-collusion related to Trump or the election. Perhaps Mueller might have something from Gates on that, but unless it only involved Trump colluding directly and personally with Russian agents, we would most likely have seen that in other indictments involving potential middlemen. Gates looks more like a key to previous corruption and fraud charges related to the previous pro-Russian Ukrainian government, as did Manafort until he began fibbing after cutting his deal with Mueller.
With Mueller’s top two deputies leaving, this delay doesn’t appear to signal anything else coming. However, don’t forget that we haven’t seen anything filed against Carter Page yet, the man whom the FBI surveilled under its FISA warrant. That’s one wild card for which no one yet has accounted.