Stopping Robert Mueller to protect us all

BY MARK PENN, OPINION CONTRIBUTOR —  05/20/18 07:00 PM EDT

The “deep state” is in a deep state of desperation. With little time left before the Justice Department inspector general’s report becomes public, and with special counsel Robert Mueller having failed to bring down Donald Trump after a year of trying, they know a reckoning is coming.

At this point, there is little doubt that the highest echelons of the FBI and the Justice Department broke their own rules to end the Hillary Clinton“matter,” but we can expect the inspector general to document what was done or, more pointedly, not done. It is hard to see how a year-long investigation of this won’t come down hard on former FBI Director James Comey and perhaps even former Attorney General Loretta Lynch, who definitely wasn’t playing mahjong in a secret “no aides allowed” meeting with former President Clinton on a Phoenix airport tarmac.

With this report on the way and congressional investigators beginning to zero in on the lack of hard, verified evidence for starting the Trump probe, current and former intelligence and Justice Department officials are dumping everything they can think of to save their reputations.

But it is backfiring. They started by telling the story of Alexander Downer, an Australian diplomat, as having remembered a bar conversation with George Papadopoulos, a foreign policy adviser to the Trump campaign. But how did the FBI know they should talk to him? That’s left out of their narrative. Downer’s signature appears on a $25 million contribution to the Clinton Foundation. You don’t need much imagination to figure that he was close with Clinton Foundation operatives who relayed information to the State Department, which then called the FBI to complete the loop. This wasn’t intelligence. It was likely opposition research from the start.

In no way would a fourth-hand report from a Maltese professor justify wholesale targeting of four or five members of the Trump campaign. It took Christopher Steele, with his funding concealed through false campaign filings, to be incredibly successful at creating a vast echo chamber around his unverified, fanciful dossier, bouncing it back and forth between the press and the FBI so it appeared that there were multiple sources all coming to the same conclusion.

Time and time again, investigators came up empty. Even several sting operations with an FBI spy we just learned about failed to produce a Delorean-like video with cash on the table. But rather than close the probe, the deep state just expanded it. All they had were a few isolated contacts with Russians and absolutely nothing related to Trump himself, yet they pressed forward. Egged on by Steele, they simply believed Trump and his team must be dirty. They just needed to dig deep enough.

Perhaps the murkiest event in the timeline is Rod Rosenstein’s appointment of a special counsel after he personally recommended Comey’s firing in blistering terms. With Attorney General Jeff Sessionsshoved out of the way, Rosenstein and Mueller then ignored their own conflicts and took charge anyway. Rosenstein is a fact witness, and Mueller is a friend of Comey, disqualifying them both.

Flush with 16 prosecutors, including a former lawyer for the Clinton Foundation, and an undisclosed budget, the Mueller investigation has been a scorched-earth effort to investigate the entirety of the Trump campaign, Trump business dealings, the entire administration and now, if it was not Russia, maybe it’s some other country.

The president’s earlier legal team was naive in believing that, when Mueller found nothing, he would just end it. Instead, the less investigators found, the more determined and expansive they became. This president and his team now are on a better road to put appropriate limits on all this.

This process must now be stopped, preferably long before a vote in the Senate. Rather than a fair, limited and impartial investigation, the Mueller investigation became a partisan, open-ended inquisition that, by its precedent, is a threat to all those who ever want to participate in a national campaign or an administration again.

Its prosecutions have all been principally to pressure witnesses with unrelated charges and threats to family, or just for a public relations effect, like the indictment of Russian internet trolls. Unfortunately, just like the Doomsday Machine in “Dr. Strangelove” that was supposed to save the world but instead destroys it, the Mueller investigation comes with no “off” switch: You can’t fire Mueller. He needs to be defeated, like Ken Starr, the independent counsel who investigated President Clinton.

Finding the “off” switch will not be easy. Step one here is for the Justice Department inspector general report to knock Comey out of the witness box. Next, the full origins of the investigation and its lack of any real intelligence needs to come out in the open. The attorney general, himself the target of a secret investigation, needs to take back his Justice Department. Sessions needs to act quickly, along with U.S. Attorney John Huber, appointed to conduct an internal review of the FBI, on the Comey and McCabe matters following the inspector general report, and then announce an expanded probe into other abuses of power.

The president’s lawyers need to extend their new aggressiveness from words to action, filing complaints with Justice Department’s Office of Professional Responsibility on the failure of Mueller and Rosenstein to recuse themselves, and going into court to question the tactics of the special counsel, from selective prosecutions on unrelated matters, illegally seizing Government Services Administration emails, covering up the phone texts of FBI officials Peter Strzok and Lisa Page, and operating without a scope approved by the attorney general. (The regulations call for the attorney general to recuse himself from the investigation but appear to still leave him responsible for the scope.)

The final stopper may be the president himself, offering two hours of testimony, perhaps even televised live from the White House. The last time America became obsessed with Russian influence in America was the McCarthy hearings in the 1950s. Those ended only when Sen. Joseph McCarthy (R-Wis.) attacked an associate of the U.S. Army counsel, Joseph Welch, and Welch famously responded: “Sir, have you no decency?” In this case, virtually every associate and family member of the president has been subject to smears conveniently leaked to the press.

Stopping Mueller isn’t about one president or one party. It’s about all presidents and all parties. It’s about cleaning out and reforming the deep state so that our intelligence operations are never used against opposing campaigns without the firmest of evidence. It’s about letting people work for campaigns and administrations without needing legal defense funds. It’s about relying on our elections to decide our differences.

Mark Penn served as pollster and adviser to President Clinton from 1995 to 2000, including during his impeachment. He is chairman of the Harris Polland author of “Microtrends Squared.” Follow him on Twitter @Mark_Penn.