In 1973 Attorney General (AG) Elliot Richardson appointed a special prosecutor, Archibald Cox, to investigate the bungled burglary of Democratic National Committee offices at the Watergate Hotel. President Richard M. Nixon subsequently ordered Richardson to fire Cox. When Richardson refused and resigned, Nixon ordered Deputy AG (DAG) William Ruckelshaus to fire Cox. Ruckelshaus also refused and resigned. Nixon then ordered the third in seniority at the Department of Justice (DoJ) to fire Cox and, with misgivings, the deed was done. These actions eventually led to Nixon resigning amid the threat of impeachment.
In response to the column I wrote on May 19, How President Trump can terminate the Mueller fiasco and start to drain the swamp, I was contacted by a reader who cited the Nixon example as a case that justifies advising President Trump to not fire Special Counsel (SC) Mueller and those responsible for his appointment. I strongly disagree. Here’s why.
- A Special Prosecutor law was passed in 1978. That law “… obliged the Attorney General to recommend the appointment of a special prosecutor whenever he or she received specific charges of misconduct, unless the charges were ‘so unsubstantiated’ as to not warrant further investigation.” The law was revised and renewed over the years until it was allowed to expire in 1999. Subsequently, the DoJ created their own rules for creating a “Special Counsel” and those are the rules that governed the appointment of the current Special Counsel. Like the original Special Prosecutor law, the DoJ process for creating a Special Counsel requires specific substantiated evidence of illegal activity. The DoJ rule is not federal law, it is a deficient process created by the DoJ.
- The DoJ rule’s deficiency is its failure to mandate the appointment of a principal official (one confirmed by Congress) to investigate individuals who have been elected to office or whose appointments have been approved by Congress. This allowed Mr. Rosenstein to appoint an inferior official (e.g., Mr. Robert Mueller) as Special Counsel, a violation of our Constitution, according to Mark Levin:
- “The appointment of Robert Mueller violates the Appointments Clause of U.S. Constitution because he was never confirmed by the Senate and every subpoena, indictment, and plea agreement should be null and void. Mueller is not an inferior appointee, but a principal appointee as understood under our constitutional. Mueller would’ve had to be nominated for Senate confirmation like any other principal officer in the Executive Branch. Every defendant, suspect and witness, in this matter should challenge the Mueller appointment with this violation.”
- Having approved FISA warrants based on non-verified dubious evidence generated by the Clinton campaign that allowed Trump campaign members to be illegally “unmasked,” DAG Rosenstein is clearly conflicted and cannot legally appoint someone to investigate a case in which he (Rosenstein) is both a potential witness and potential defendant. Ironically, Rosenstein convinced AG Sessions to recuse himself from any involvement with a Russian probe when there was no real basis for Sessions to do so. On the other hand, Rosenstein was required by law to have recused himself from appointing the SC based on his clear conflict of interest with respect to the Russian probe. Indeed, by his recusal advice to AG Sessions and refusal to recuse himself, Rosenstein has conspired to be in a position to protect his and others’ interests who were involved in the criminal conspiracy to spy on the Trump campaign in an effort to help Hillary Clinton’s failed candidacy. By “slow-walking” and heavily redacting congressionally subpoenaed documents, Mr. Rosenstein is obstructing Congress and providing clear evidence of his own involvement in criminal activities.
- SC Mueller is also deeply conflicted with respect to any investigation involving the Clinton campaign. As an inferior official who has not been confirmed by Congress, there are two reasons why the law and our Constitution require him to have recused himself. As a facilitator for then Secy. of State Clinton’s illegal pay-to-play acts while he was FBI Director, Mueller’s relationship to the Clinton campaign was by itself sufficient reason to turn down the offer of SC. Mueller was further conflicted as a long-time friend of former FBI Director James Comey’s. Comey had illegally shielded Clinton from prosecution by obstructing justice in the investigation of Clinton for a host of severe national security violations associated with her illegal use of a non-secure private email server while Secy. of State.
- Rosenstein’s appointment of Mueller violates DoJ rules on another front. The Special Counsel policy of the DoJ requires that there be clear evidence of a crime. There has never been either a crime identified or clear evidence of any crime. A search warrant could never be legally obtained on the “evidence” of a crime used to appoint SC Mueller.
- Having first recommended to the new President that he fire FBI Director James Comey, Rosenstein then appoints a Special Counsel to investigate the very action he recommended! There cannot be “obstruction of justice” when there is no criminal activity to investigate. What is there to obstruct? Rosenstein is well aware of this and has managed to insert himself in a key position to prevent any prosecution of Hillary Clinton despite massive evidence of her multiple criminal activities while Secy. of State. By withholding subpoenaed materials from Congressional oversight and improperly redacting unclassified information, Rosenstein has effectively and illegally shielded himself and others from criminal prosecution for their involvement with the Obama administration’s illegal use of government assets to try to influence the outcome of the 2016 election.
For these reasons, whatever the Mueller operation finds is a nullity in law because there is no legal basis for Mueller’s conflicted activities. Essentially, the so-called “Russian probe” cannot lead to any successful prosecution because whatever Mueller may uncover must be treated as the fruit of the poisonous tree.
President Trump should prepare a national address to explain to the people in great detail the reasons both the law and our Constitution compel him to take actions to restore faith in the rule of law. The President should explain that his failure to act in the face of clear evidence of criminal activity could constitute grounds for impeachment. He should explain that failure to act would jeopardize prosecution for any criminal activities the Mueller investigation may have discovered that were committed during the 2016 election campaign. The President should describe the remedies he is initiating to root out all corruption in the Executive Department starting with those relating to illegal 2016 election activities of either campaign and of any campaign meddling by the Obama administration.
With this background, it would be advisable for President Trump’s legal team to seek a joint meeting with high profile legal scholars Alan Dershowitz, Jonathan Turley, and Mark Levin to help President Trump prepare to take actions appropriate to restoring faith in our system of justice. All three should be encouraged to assist President Trump in the preparation of his address to the nation to explain the compelling bases for his actions and to participate in a post-speech press conference.
President Trump’s prime-time national address should clearly describe why he is compelled by the law and our Constitution to take the following actions to:
- Fire AG Sessions, DAG Rosenstein, and SC Mueller, effective immediately, ceasing all actions of the SC and his team.
- Appoint a senior prosecutor to be acting AG and to form a DoJ team to promptly investigate the criminal activities of Mssrs. Mueller and Rosenstein relating to both the 2016 campaign and their unlawful actions creating and accepting the Special Counsel position.
- Direct the DoJ to fully and promptly comply with any congressional request for unredacted oversight information.
- Direct the acting AG to investigate all evidence of 2016 election-related criminal activity, including abuses of the FISA/FISC process to illegally unmask American citizens working with either major campaign during the presidential campaign. Such investigation should include identifying any campaign’s effort to collude with the Obama Administration, the DoJ, FBI, CIA, foreign agents, Russians and all others to illegally influence the outcome of the 2016 election.
- Direct the acting AG to use the full resources of the DoJ and FBI to investigate White House leaks and any deliberate efforts to distract the duly-elected new President from the performance of his duties.
Immediately following the nationwide address, President Trump, a representative of his legal team and his three outside advisors (Dershowitz, Turley, and Levin) should hold a press conference to answer any questions concerning the legal bases for the actions taken.
Our President has an obligation to expose this rank corruption and punish it with meaningful jail time for everyone who is convicted of violating federal law in relation to this sorry episode in American history. Holding those accountable and punishing accordingly is the only defense we have against this ever happening again.
For the reasons cited above, I respectfully disagree with those who make comparisons with Nixon’s Watergate-related actions in 1973 as a rationale for Trump letting the current fiasco “play out.” Unlike President Trump, Nixon was neither compelled by law nor our Constitution to take the actions he took.
President Trump’s obligation to faithfully defend our Constitution and uphold the law compel him to take immediate action to terminate illegal activities of the SC and DAG. Our president must be decisive and see this through to the end, regardless of who is brought to justice.
The American people are sick and tired of insider officials and politicians getting a free ride to commit crimes without consequence, and then having the temerity to lie about their criminal activities.