Nobody has brought more clarity to reporting on the tempest of scandals and investigations flooding the political landscape than National Review‘s Andrew McCarthy. As the federal prosecutor who handled the case against the “Blind Sheik” Omar Adbel Rahman for the 1993 Word Trade center bombing, he brings expertise and authority to a topic that would bewilder even the best-informed layman, and he writes with limpid exactitude. It is no small thing to do this so well, and we are lucky to have him.
Today he looks at the increasingly Byzantine convolutions and divagations of the Mueller probe, and in particular its highly irregular prosecution of Paul Manafort and Richard Gates. His article begins:
These columns have many times observed Deputy Attorney General Rod Rosenstein’s failure to set limits on Special Counsel Robert Mueller’s investigation. To trigger the appointment of a special counsel, federal regulations require the Justice Department to identify the crimes that warrant investigation and prosecution ”” crimes that the Justice Department is too conflicted to investigate in the normal course; crimes that become the parameters of the special counsel’s jurisdiction.
Rosenstein, instead, put the cart before the horse: Mueller was invited to conduct a fishing expedition, a boundless quest to hunt for undiscovered crimes, rather than an investigation and prosecution of known crimes.
That deviation, it turns out, is not the half of it. With Rosenstein’s passive approval, Mueller is shredding Justice Department charging policy by alleging earth-shattering crimes, then cutting a sweetheart deal that shields the defendant from liability for those crimes and from the penalties prescribed by Congress. The special counsel, moreover, has become a legislature unto himself, promulgating the new, grandiose crime of “conspiracy against the United States’ by distorting the concept of “fraud.’
Why does the special counsel need to invent an offense to get a guilty plea? Why doesn’t he demand a plea to one of the several truly egregious statutory crimes he claims have been committed?
Good questions.
Mr. McCarthy then explains, in fascinating detail, the charges leveled against Messrs. Manafort and Gates, and the strange deviations from normal procedure, and from the meaning of the law, that the prosecutorial team has made in pursuing these cases.
The article concludes with this:
Think about how bizarre this is. For public consumption, the special counsel alleges breathtaking felony offenses ”” bank fraud, tax fraud, and money laundering, crimes involving over $100 million when aggregated. Yet, to obtain a guilty plea from one of the allegedly serious felons, Mueller finds it necessary to abandon the hair-raising felonies he purports to have found. If these felonies are readily provable, as Mueller has claimed in his indictments, they are supposed to form the basis of any plea under Justice Department policy. If Gates is the mega-criminal nine-digit fraudster the special counsel has portrayed, he is not supposed to get a slap on the wrist. Yet Mueller accepts a plea to minor charges, including a Section 371 conspiracy that is a prosecutorial invention ”” designed to shield the allegedly serious felon from penalties Congress has decreed for the misconduct involved.
These charges against Gates and Manafort have nothing to do with “collusion with Russia,’ the investigation for which Rosenstein appointed Mueller. There is no reason this case could not have been prosecuted by regular Justice Department lawyers. There was no need for a special counsel for this. And regular Justice Department prosecutors, overseen by engaged Justice Department superiors ensuring adherence to well-established Justice Department policies, would not prosecute a case this way.
For the details — and if you care about being an informed observer of this historic it is worth your time to understand them — read the whole thing, here.