Thoughts on the Special Counsel Appointment

President Barack Obama and FBI Director James Comey xxx at an installation ceremony at FBI Headquarters in Washington, Monday, Oct. 28, 2013. Comey, a former Bush administration official who defiantly refused to go along with White House demands on warrantless wiretapping nearly a decade ago, took over last month for Robert Mueller, who stepped down after 12 years as agency director. (AP Photo/Charles Dharapak)
Charles Dharapak/AP
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Let me share a few quick thoughts on the appointment of Robert Mueller as Special Counsel to oversee the Russia probe. 

First, this is a good pick.

Mueller has a strong reputation for professionalism. He was in DC for years. So people will have disagreements about this or that. He also headed the FBI for the whole post-9/11 era, during which the US pursued numerous highly controversial law enforcement and counter-terrorism policies. But with Mueller overseeing the investigation, I think that if anyone under scrutiny broke any laws they’re likely in pretty big trouble. For the purposes of this appointment, that’s what matters. I don’t think Mueller has any interest or willingness to cover for President Trump or any of his associates.

About the decision itself, this was Deputy Attorney General Rod Rosenstein’s call. Initial reports say he did not consult with the White House about the decision and had finalized the order with his signature before notifying the White House. He apparently gave the White House about 30 minutes heads up. Reading between the lines, piecing together the embargoes that the big news organizations waited on until 6 pm, it sounds like this happened: The DOJ contacted the White House and the major news organizations around the same time, made the news organizations agree to an embargo until 6 pm and that brief period from 5 or 5:30 until 6 pm was the White House’s heads up.

That is about the absolute minimal courtesy Rosenstein could have provided.

I still think Rosenstein deserves all the reputational damage he incurred over the last ten days or so. He knew what he was participating in when he involved himself in the Comey firing. What he probably didn’t realize was that Trump would essentially blame him for the decision. How much this is payback, an attempt to repair his reputation or simply put things right, you’re as good a judge as I am.

I believe this decision was close to inevitable. It is a major investigation, with a focus directly on the White House, with massive public interest. The President has already demonstrably tried to end the investigation. There’s simply no way that investigation can be credibly carried on by personnel serving at the pleasure of the President.

But here’s the key. This is important and necessary but not sufficient.

There also needs to be an independent commission to investigate what happened in the 2016 election. These two options – special counsel or independent commission – are often bandied about as two separate options, one or the other, or as steps of escalation in a scandal. None of those things is true.

It is critical to understand that the most important details we need to know about the Russian disruption campaign and the Trump campaign’s possible collusion with it may not be crimes. Indeed, I would say that the crimes we’re likely to discover will likely be incidental or secondary to the broader actions and activities we’re trying to uncover. Just hypothetically, what if Russia had a disruption campaign, Trump campaign officials gave winks and nods to nudge it forward but violated no laws? That’s hard to figure but by no means impossible. (Our criminal laws are not really designed for this set of facts.) The simple point is that the most important ‘bad acts’ may well not be crimes. That means not only is no one punished but far, far more important, we would never know what happened.

People who committed crimes should be punished. Unquestionably. But the truest and deepest national interest is that the whole story be thoroughly investigated and the full story get a public airing. That is far more important to the health of the Republic and its safety than whether particular individuals spend time in prison. Again, it’s not either/or. But one is far more important than the other. A counter-intelligence probe or even a criminal investigation could wind up and the details and findings never be known. That can’t be allowed to happen. We need a fully empowered commission charged not with investigating and prosecuting criminal conduct but ascertaining, as far as possible, what happened and then bringing that information before the public.

That’s critical. This is an important step. Great that it happened. But the country can’t get past this without that full accounting.

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Josh Marshall is editor and publisher of TalkingPointsMemo.com.
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