By Andrew C. McCarthy — September 23, 2017
Robert Mueller and Paul Manafort (Photos: CQ Roll Call and Getty Images)
Robert Mueller’s sprawling special-counsel investigation is playing hardball.
It was not enough to get a search warrant to ransack the Virginia home of Paul Manafort, even as the former Trump campaign chairman was cooperating with congressional investigators. Mueller’s bad-asses persuaded a judge to give them permission to pick the door lock. That way, they could break into the premises in the wee hours, while Manafort and his wife were in bed sleeping. They proceeded to secure the premises — of a man they are reportedly investigating for tax and financial crimes, not gang murders and Mafia hits — by drawing their guns on the stunned couple, apparently to check their pajamas for weapons.
Mueller’s probe more resembles an empire, with 17 prosecutors retained on the public dime. So . . . what exactly is the crime of the century that requires five times the number of lawyers the Justice Department customarily assigns to crimes of the century? No one can say. The growing firm is clearly scorching the earth, scrutinizing over a decade of Manafort’s shady business dealings, determined to pluck out some white-collar felony or another that they can use to squeeze him.
You are forgiven if you can recall only vaguely that supposition about Trump-campaign collusion in Russian espionage against the 2016 election was the actual explanation for Mueller’s appointment as special counsel. To the extent there was any explanation, that is. Deputy Attorney General Rod Rosenstein, a Trump appointee, did not comply with the regulations requiring a description of the crimes Trump’s Justice Department is too conflicted to investigate, purportedly necessitating a quasi-independent special counsel.
The way it’s supposed to work, the Justice Department learns of a crime, so it assigns a prosecutor. To the contrary, this Justice Department assigned a prosecutor — make that: Seventeen hyper-aggressive prosecutors — and unleashed them to hunt for whatever crime they could find.
If you sense that this cuts against the presumption of innocence, you’re onto something. Because of that presumption, coupled with such other constitutional rights as the Fourth Amendment’s protection against unreasonable police searches, prosecutors are supposed to be measured in the use of their awesome powers, to employ only as much compulsion as seems appropriate under the circumstances. You don’t get a search warrant when a subpoena will do; if you have to get a warrant, you don’t do a covert pre-dawn entry when ringing the bell in the daytime will easily get you in the door.
In various places, our law reflects this common sense. For example, in applying for a wiretap authorization, besides describing the precise crime it suspects, the Justice Department must satisfy the judge that less intrusive techniques for obtaining evidence of similar quality have been attempted, or would be certain to fail if tried. (See section 2518(b) and (c) of the federal penal code.) The point is to instruct investigators that they must exercise restraint. The prosecutorial privilege to act “under color of law” comes with the duty to respect the rights the law guarantees.
Law enforcement is hard and sometimes dangerous work. Thus, there is leeway for officials to make errors in judgment. Without that leeway, they would be too paralyzed to do their jobs, and there would be no rule of law. But when prosecutors and investigators go way overboard just because they can, it is not law enforcement. It is abuse of law-enforcement power in order to intimidate.
There is no other way to interpret the brass-knuckles treatment of Manafort, a subject in a non-violent-crime investigation who is represented by counsel and was cooperating with Congress at the time Mueller’s Gang of 17 chose to break into his home. Did they really think they couldn’t have gotten the stuff they carted out of Manafort’s residence by calling up his well-regarded lawyers and asking for it? After he had already surrendered 300 pages of documents to investigative committees?
Besides scaring the bejesus out of him with the search warrant, prosecutors reportedly also told Manafort that they intend to indict him. Must mean they have a case, right? So, if Manafort is such a threat to obstruct justice that they needed to break into his home and grab the evidence before he could destroy it, then why hasn’t he been arrested yet? I mean, how could Mueller responsibly allow so dangerous a criminal to walk the streets?
I’m betting he’s not in cuffs because the point of this over-the-top exercise was not to investigate Manafort; it was to demonstrate to Manafort’s very concentrated mind how miserable the prosecutors can make his life if he doesn’t wave the white flag, pronto, and give them whatever he’s got on Donald Trump — which, by the way, had better be something.
Now, don’t misunderstand me. I’m fully convinced that Paul Manafort is a sleazeball. My objections to the revanchist regime in Moscow, unlike those of many Democrats, started long before November 8. Manafort is tight with Kremlin cronies, and his roster of lobbying clients includes a rogues’ gallery of human-rights abusers and corruptocrats. Donald Trump’s decision to put his presidential campaign in Manafort’s hands, however fleetingly, has always been disturbing — to put it mildly. If Manafort was complicit in Putin-regime provocations, and if he has information implicating Trump in them, then that must be investigated even if it compromises the president’s capacity to govern effectively.
But here’s the thing. So far, there is not a whiff of evidence that Trump and his associates were complicit in Russia’s cyber-espionage. Were they on the make for unsavory information about the opposition? Sure they were. It’s distasteful . . . but do you think the Democrats weren’t? The point is: We don’t assign prosecutors to investigate distasteful. We assign them to investigate crime — in this case, a putative information-theft conspiracy.
The FBI and the Justice Department were pursuing that investigation aggressively for months before Mueller entered the picture. It has been over a year, and they don’t have it. If they had it, former FBI director Jim Comey would not have thrice told Trump he was not a suspect. If they had it, it would have leaked by now — the way every unflattering morsel has been leaked. And if they had it, they wouldn’t be poring over eleven years of Manafort’s checkered history; they would be arresting him for espionage in connection with the 2016 election.
If there is strong suspicion that Manafort has committed fraud crimes unrelated to the 2016 campaign, then fine, investigate him. But investigate him as you would any other white-collar fraudster who (a) has counsel willing to honor your lawful demands to produce evidence and (b) has, at least ostensibly, been cooperative. Paul Manafort is not Osama bin Laden, so there’s no reason for Bob Mueller to make like the commander of Seal Team Six.
Why is this worth pointing out? Because someday, maybe, we’ll get around to asking: What would have happened if Hillary Clinton’s very real email scandal — with its mountainous evidence of felony mishandling of classified information and destruction of government records — had been investigated with the no-holds-barred vigor Mueller and his band of Hillary donors are applying to the surmise of Trump collusion in Russian espionage?
— Andrew C. McCarthy is a senior fellow at the National Review Institute and a contributing editor of National Review.