James Comey and Robert Mueller Imperil the Rule of Law


The former FBI directors tend to investigate Republicans far more zealously than Democrats.


By Peter Berkowitz


A new news story broke recently about possible Russian wrongdoing in the U.S., and it didn’t involve the Trump campaign. The Hill reported that in 2009 the FBI “gathered substantial evidence that Russian nuclear industry officials were engaged in bribery, kickbacks, extortion and money laundering designed to grow Vladimir Putin’s atomic energy business inside the United States.”


The FBI kept that information from Congress and the public, the Hill reported, even as Hillary Clinton’s State Department in 2010 approved a deal that transferred control of more than 20% of America’s uranium supply to a Russian company. The Hill also reported the FBI had documents showing that during this period Russia engineered the transmission of millions of dollars to the Clinton Foundation.


The FBI director at the time: Robert Mueller, now special counsel in charge of investigating “Russian interference with the 2016 presidential election and related matters.” The revelations can only heighten anxieties about Mr. Mueller, the FBI and the rule of law.


The special counsel’s open-ended mandate covers not only “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump” but also “any matters that arose or may arise directly from the investigation.”


Because Mr. Mueller has interpreted his mandate expansively, his effort may become the most politically disruptive federal investigation of our young century—more than the FBI’s investigation of Mrs. Clinton’s private email server and mishandling of classified information, more than Special Counsel Patrick Fitzgerald’s investigation into the 2003 disclosure of CIA employee Valerie Plame’s identity.


All three investigations have one important characteristic in common: James Comey, Mr. Mueller’s successor as FBI director, played a dubious role in each.


In December 2003, after Attorney General John Ashcroft recused himself from the Plame matter, then-Deputy Attorney General Comey named Mr. Fitzgerald—a close friend who was godfather to one of Mr. Comey’s children—as special counsel to head the Justice Department’s “investigation into the alleged unauthorized disclosure” of Ms. Plame’s employment.


Unknown to the public then, and still not widely known, that potential crime had already been solved. By early fall 2003, the CIA had determined that revealing Ms. Plame’s identity caused no injury to national security, while the FBI knew it was not a White House official—as many Democrats and liberal pundits ardently believed—but rather Deputy Secretary of State Richard Armitage who was columnist Robert Novak’s source for the original Plame story.


Mr. Fitzgerald declined to prosecute Mr. Armitage, but he played hardball with the Bush White House. Over several years, Mr. Fitzgerald inflicted severe damage by feeding the false accusation that the president had lied the nation into the Iraq war. The only criminal charges he prosecuted were generated by his investigation. He won a 2007 conviction of I. Lewis “Scooter” Libby, former chief of staff to Vice President Dick Cheney, for obstruction of justice, false statements and perjury. The conviction was based on small inconsistencies Mr. Fitzgerald discovered in (or created from) more than 20 hours of Mr. Libby’s FBI interrogation and grand-jury testimony. Star prosecution witness Judith Miller wrote in her 2015 memoir that Mr. Fitzgerald had withheld crucial information and manipulated her memory, inducing her to testify falsely against Mr. Libby.


In contrast, then-FBI Director Comey played softball with the 2015-16 Hillary Clinton investigation. Despite the gravity of the matter—military service members can be court-martialed and discharged for sending classified information on nonsecure systems—Mr. Comey mostly avoided issuing subpoenas and cooperated with the Obama Justice Department in obscuring the investigation’s criminal character. He permitted Mrs. Clinton and her team to destroy evidence and granted generous immunity deals to her advisers. He drafted a statement exonerating Mrs. Clinton months before the FBI interviewed her. And his FBI neither recorded the interview nor compelled her to answer questions under oath.


In addition, in a July 2016 press conference, Mr. Comey usurped the authority of Justice Department prosecutors by publicly exonerating Mrs. Clinton. In the process, he confused the pertinent legal issue by asserting she did not intend to violate the law. But intent wasn’t a necessary condition for a crime. Federal law criminalizes “gross negligence” in mishandling classified information. By Mr. Comey’s own account, Mrs. Clinton had been “extremely careless.”


With Mr. Trump, by contrast, Mr. Comey is playing hardball even after leaving government. In May, shortly after President Trump fired him, Mr. Comey—possibly in conflict with FBI policy—leaked notes of an Oval Office meeting with the president. His purpose, Mr. Comey publicly acknowledged, was to “prompt the appointment of a special counsel.”


Mr. Mueller is playing hardball too. Unlike the Clinton investigation into narrowly defined allegations, his mandate authorizes pursuit of unspecified crimes. That invites casting a wide net, which Mr. Mueller has done, exploring conduct that long predated the 2016 presidential campaign. He has assembled a huge team that includes, in addition to FBI agents, 16 seasoned prosecutors, at least seven of whom have contributed money to Democratic candidates. He might have extended his investigation to Mr. Trump’s business interests. And he is working with agents from the Internal Revenue Service’s criminal investigation unit, raising the possibility that he has obtained Mr. Trump’s tax returns.


Mr. Mueller has adopted scorched-earth tactics in pursuit of Paul Manafort, who ran Trump’s presidential campaign from June to August 2016. The special counsel’s team has reached back more than a decade into Mr. Manafort’s financial affairs and conducted a predawn, guns-drawn raid on his home on a day he was scheduled to testify before Congress as a cooperating witness.


One crucial difference distinguishes the probe of Mrs. Clinton from the two Comey-instigated special-counsel investigations of Republican administrations. Mr. Fitzgerald’s multiyear investigation of the Bush administration and Mr. Mueller’s ever-widening scrutiny of the Trump campaign exhibit a tenacious and nearly unconstrained search for persons and crimes to prosecute. In contrast, Mr. Comey’s investigation of Mrs. Clinton reflects a determination not to prosecute systematic and obvious unlawful conduct.


Both excesses threaten the rule of law—but the dogged search for persons and crimes to prosecute poses the graver threat to constitutional government.


Mr. Berkowitz is a senior fellow at the Hoover Institution, Stanford University.




Democrats, Russians and the FBI


Did the bureau use disinformation to trigger its Trump probe?


By The Editorial Board - WSJ


It turns out that Russia has sown distrust in the U.S. political system—aided and abetted by the Democratic Party, and perhaps the FBI. This is an about-face from the dominant media narrative of the last year, and it requires a full investigation.

The Washington Post revealed Tuesday that the Hillary Clinton campaign and Democratic National Committee jointly paid for that infamous “dossier” full of Russian disinformation against Donald Trump. They filtered the payments through a U.S. law firm (Perkins Coie), which hired the opposition-research hit men at Fusion GPS. Fusion in turn tapped a former British spook, Christopher Steele, to compile the allegations, which are based largely on anonymous, Kremlin-connected sources.

Strip out the middlemen, and it appears that Democrats paid for Russians to compile wild allegations about a U.S. presidential candidate. Did someone say “collusion”?

This news is all the more explosive because the DNC and Clinton campaign hid their role, even amid the media furor after BuzzFeed published the Steele dossier in January. Reporters are now saying that Clinton campaign officials lied to them about their role in the dossier. Current DNC Chair Tom Perez and former Chair Debbie Wasserman-Schultz deny knowing about the dossier arrangement, but someone must have known.

Perhaps this explains why Congressional Democrats have been keen to protect Fusion from answering dossier questions—disrupting hearings, protesting subpoenas and deriding Republican investigators. Two of Fusion’s cofounders invoked their Fifth Amendment rights last week rather than answer House Intelligence Committee questions, and Fusion filed a federal lawsuit on Friday to block committee subpoenas of its bank records.

The more troubling question is whether the FBI played a role, even if inadvertently, in assisting a Russian disinformation campaign. We know the agency possessed the dossier in 2016, and according to media reports it debated paying Mr. Steele to continue his work in the runup to the election. This occurred while former FBI Director James Comey was ramping up his probe into supposed ties between the Trump campaign and Russians.

Two pertinent questions: Did the dossier trigger the FBI probe of the Trump campaign, and did Mr. Comey or his agents use it as evidence to seek wiretapping approval from the Foreign Intelligence Surveillance Court of Trump campaign aides?

Congressional investigators need to focus on the FBI’s role, and House Speaker Paul Ryan was correct  to insist that the bureau comply with Congress’s document demands “immediately.” Mr. Sessions has recused himself from the Justice Department’s Russia probe, but he and Deputy AG Rod Rosenstein can still insist on transparency. Mr. Ryan should also reinstall Intelligence Chair Devin Nunes as lead on the Russia investigation, since it appears the Democratic accusations against him were aimed in part at throwing him off the Fusion trail.

All of this also raises questions about Special Counsel Robert Mueller’s investigation. The Fusion news means the FBI’s role in Russia’s election interference must now be investigated—even as the FBI and Justice insist that Mr. Mueller’s probe prevents them from cooperating with Congressional investigators.

Mr. Mueller is a former FBI director, and for years he worked closely with Mr. Comey. It is no slur against Mr. Mueller’s integrity to say that he lacks the critical distance to conduct a credible probe of the bureau he ran for a dozen years. He could best serve the country by resigning to prevent further political turmoil over that conflict of interest.

The American public deserves a full accounting of the scope and nature of Russian meddling in American democracy, and that means following the trail of the Steele dossier as much as it does the meetings of Trump campaign officials.