Why conservatives should embrace Robert Mueller.

Why Conservatives Should Embrace Robert Mueller

Why Conservatives Should Embrace Robert Mueller

The law, lawyers, and the court.
Dec. 12 2017 11:03 AM

Why Conservatives Should Embrace Robert Mueller

The perils of scuttling one of the most important counterintelligence investigations of our time.

Robert Mueller
Special counsel Robert Mueller leaves following a meeting with members of the U.S. Senate Judiciary Committee at the Capitol on June 21.

Saul Loeb/AFP/Getty Images

This piece was originally published on Just Security, an online forum for analysis of U.S. national security law and policy.

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It appears that an effort is now underway by some Republicans to damage the credibility of Robert Mueller’s team in anticipation that damning evidence may emerge from the special counsel’s investigation into the Trump campaign. That effort, especially when joined by others, may encourage the president to try to fire Mueller. There are three factors conservatives may want to consider before traveling any further down this path.

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Admittedly, these considerations presume the office of the special counsel will continue to conduct a careful and independent investigation that follows the facts and the law wherever they lead. As Alex Whiting and I wrote in an essay for National Review, recent developments, including the content of Michael Flynn’s plea agreement, indicate that’s exactly how Mueller’s team is performing its duties.

So, what are the three factors for conservatives to consider?

First, with so much media and expert attention focused on whether “collusion” is a crime and on the recent spate of indictments and guilty pleas, it’s easy to lose sight of the fact that the principal task of the special counsel’s office is a counterintelligence investigation—not a criminal matter. Mueller’s primary directive from the deputy attorney general is to get to the bottom of Russia’s interference in the U.S. election and provide an authoritative account. His principal focus is, in short, to keep the country safe.

We accordingly now have a mix of the nation’s finest investigators and lawyers, with no political litmus test but service to country, dedicated to that task—something all Americans should support. It is concerning to think the energies of these public servants might be distracted by the partisan battles in Washington, and to think of the more existential threat posed to their efforts by prodding the president to remove Mueller. If the intrinsic reasons for supporting this counterintelligence force is not enough to motivate honest assessments of the work of the special counsel’s office, perhaps narrow-minded, instrumental calculations might. Down the line, Americans may—and, indeed, should—hold politically accountable those who would leave our country less safe by damaging or scuttling one of the most important counterintelligence investigations of our time.

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Second, with so much attention focused on Russian activities in the 2016 general election battle between President Trump and Hillary Clinton, it’s easy to overlook the Kremlin’s interference in the GOP primary. Yet the Kremlin’s use of social media and other intelligence activities threatened to damage the modern Republican Party from within by driving popular sentiment toward the alt-right (read: white nationalist) fringe. Former FBI special agent Clint Watts told Just Security that the Russian information operation involved an earlier starting point than many assume. Watts said:

What many people miss is that a first principle of effective information wars is to win over the audience first. The Russians developed an alt-right audience in the United States, including testing how they would respond to different messages, well before the primaries began. The Russians were then ready for whichever candidate suited them.

That was the social media prong of the Russian efforts. As far as covert cyber operations were concerned, NBC reported that Russian efforts to steal emails and other data got underway in 2015 and included “top Republicans and staffers for Republican candidates for president.”

Mueller, a Republican himself with a strong record of leadership of the FBI on these issues, is now equipped with investigatory powers to address these perils. Efforts to undermine the credibility of Mueller in order to blunt any damaging information he might deliver on the president will have the unintended consequence of blunting the special counsel’s work to address Russian interference in our electoral processes. And, in particular, falsely painting the Mueller team as partisan will surely shape the public’s reception of information the special counsel presents on Russian threats to different parts of the electorate.

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Third, let’s assume that conservative writers like Andy McCarthy and others are correct that the Trump campaign and the president himself did nothing criminal as to Russian election interference. While it’s unnecessary for our analysis, we could also assume that these conservative commentators are correct that the Flynn plea agreement indicates that Mueller’s investigation into Trump campaign collusion has effectively reached a dead end. (Alex Whiting and I draw a different inference from the Flynn plea, so let’s assume here that Alex and I are wrong on that score.) If the McCarthy view is correct, then the best way to remove the albatross of the Russia investigation from around the president’s neck is to let Mueller’s investigation run its course. A report from Mueller that vindicates the president will be especially persuasive if it comes from the current mix of professionals on the special counsel’s team.

Perhaps there is also a middle category in which Mueller indicts a campaign affiliate but never reaches the president. That too might be some sort of vindication of Donald Trump. Recall that the president privately suggested to James Comey that he would accept it if the FBI investigation found wrongdoing by others as long as he were cleared. The former FBI director’s prepared congressional testimony says:

The president went on to say that if there were some “satellite” associates of his who did something wrong, it would be good to find that out, but that he hadn’t done anything wrong and hoped I would find a way to get it out that we weren’t investigating him.

But what if instead of letting the investigation run its course, the president tries to fire Mueller? It will likely backfire on the White House and send citizens onto the streets. It’s not hard to imagine a walkout of federal buildings. Steve Bannon called the firing of Comey “the biggest mistake in modern political history.” He might be right, but firing Mueller would be bigger. It would place the greatest pressure on Congress to impeach and, at a minimum, to convene much more serious hearings. It will also look to the general public like an admission of guilt for collusion. And all the while, the threat of federal prosecution may very well continue as the FBI takes these probes back over from Mueller.

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So why would Republicans support firing Mueller if it were against their own self-interest or the country’s best interests? Lamenting the current state of the GOP, David Brooks wrote last week:

There is no end to what Trump will ask of his party. He is defined by shamelessness, and so there is no bottom. Apparently there is no end to what regular Republicans are willing to give him. Trump may soon ask them to accept his firing of Robert Mueller, and yes, after some sighing, they will accept that, too.

But it’s not just what Trump may soon ask regular Republicans to accept. There are forces within the GOP and conservative thinkers pushing him toward the cliff of firing Mueller. Over that cliff, we Americans all lose.

More from Just Security:

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Ryan Goodman is the co–editor in chief of Just Security, the Anne and Joel Ehrenkranz professor of law at the New York University School of Law, and former special counsel to the general counsel of the Department of Defense.