By David Schoen
Special Counsel Robert Mueller has finally presented his report to Attorney General William Barr, after spending almost two years and tens of millions of taxpayer dollars on the effort. But whatever the report reveals, it is the product of a process and a special counsel team that were both fatally flawed from the beginning.
As a result, the Mueller report should be rejected out of hand by every American who cares at all about the concept of fundamental fairness that our founders intended to be a primary guiding principle for our government officials.
No matter what’s in the report, Mueller has already ensured that a large portion of the public will never have confidence in it.
One expert after another has tried to predict what the report on Russia’s interference in the 2016 presidential election – and allegations that Trump or his associates conspired with Russia to win the election – will say, and what the consequences will be.
It’s a sure thing that no one will be fully satisfied with the report – no matter what it says.
Many Americans cheered when Deputy Attorney General Rod Rosenstein appointed Special Counsel Mueller to investigate alleged collusion between President Trump’s campaign and Russia. The president has said many times that “there was no collusion.”
For some opponents of President Trump, anything that might paralyze his administration and stymie his ability to make policy was most welcome – even an investigation based on a lie.
For others, there was a genuine concern, fueled by the media, that there might actually be something to investigate. They were all for getting to the bottom of it – even if they were never told exactly what “it” was.
On the other hand, many other Americans felt there was no justification for appointing a special counsel, citing the dearth of evidence and the existence of other options provided under Sec. 600.2 of the special counsel regulations.
The Mueller report should be rejected by every American who cares about the concept of fairness, because it is the product of a process and a special counsel team that were both fatally flawed from the beginning.
Those who believe no special counsel was needed questioned whether the criteria for the appointment had been met. They were puzzled by Mueller’s choices for his team, and they were uncomfortable with being kept in the dark about how broad a mandate Deputy Attorney General Rosenstein would give Mueller.
From evidence made public before Mueller submitted his report, it’s clear that the early concerns about the special counsel appointment, his team, and his mission didn’t even scratch the surface.
There are several core principles underlying the special counsel regulations.
First, under Sec. 600.1, the appointment of a special counsel is only triggered when a determination is made that a criminal investigation of a person or matter is warranted, when the Justice Department has a conflict of interest, and when the appointment would be in the public interest.
Second, under Sec. 600.3, the investigation must be conducted by a special counsel team with a reputation for integrity and impartial decision-making.
But under Mueller, the special counsel process and team utterly failed to meet those fundamental principles.
The decision to appoint Mueller was corrupted by people with a clear political bias and agenda, who hoped to accomplish through the Justice Department and the special counsel process what they could not accomplish through a fair election.
Top Justice Department officials who were directly involved in the decision to appoint Mueller as special counsel hated President Trump with all their hearts and souls, and were committed to acting on that hatred.
FBI Director James Comey, for instance, has admitted to leaking documents for the specific purpose of getting a special counsel appointed who would investigate the president.
Mueller’s deputy – Andrew McCabe – has reported in detail that Deputy Attorney General Rosenstein, who appointed Mueller and crafted Mueller’s mandate, concocted a bizarre plan to try to remove President Trump from office.
Both Comey and McCabe have since been sharply criticized by the Justice Department inspector general for their misconduct. And both have written and heavily promoted books in which they viciously attack President Trump. Criminal investigations against the two fired top FBI top officials are pending.
In addition, we also now know that some of the same high-ranking officials involved in Mueller’s appointment were aware that information underpinning the rationale for that appointment was derived from an unreliable source.
These officials also knew that the source – former British spy Christopher Steele – was funded by supporters of Democratic presidential candidate Hillary Clinton. Yet they concealed these material facts from federal judges in order to get permission to spy on American citizens.
The process of appointing Mueller as a special counsel was, therefore, improper from its inception. Any report derived from that process will be the fruit of a most poisonous tree.
The special counsel process can only work if the special counsel’s team is composed entirely of lawyers who have earned a reputation for the highest integrity and impartiality. Only then can the public have any confidence in the results of their investigation.
An honest and unbiased approach was especially important for the Mueller probe, since the public has not even been allowed to know the full parameters of their investigation, which were established unilaterally by Rosenstein.
Further, the special counsel regulations in Sec. 600.4 grant members of the special counsel’s team extraordinary power, allowing them to unilaterally charge or threaten to charge anyone they decide interfered with or somehow obstructed their investigation – perhaps just by failing to give them the answers they wanted to hear.
For most people, of course, the threat of criminal indictment and all of the associated financial, emotional, family, and career consequences can be overwhelming. Even strong-willed people can be tempted to succumb to the pressure and make up a story that will fit a biased prosecutor’s agenda.
Considering both the serious nature of any investigation of the president of the United States and the enormous power wielded by the special counsel team, fair-minded Americans would expect each member of Mueller’s handpicked team to meet the highest standards of integrity and impartiality. This is required not only by the regulations, but more importantly, by the fundamental American value of fairness.
Instead, for reasons known only to him, Mueller inexcusably decided to pick lawyers who abysmally failed these criteria. By doing so, Mueller absolutely guaranteed that any report issued by his team would never be accepted by anyone other than the most adamant Trump haters – and even then, only to the extent that it maligns the president.
Mueller cannot possibly offer a satisfactory explanation for why he chose to ignore the vast universe of honest, talented, and politically uninvolved lawyers who would have granted his investigation credibility and legitimacy, and instead assembled such a transparently biased team.
Especially in today’s exceptionally polarized political climate, there can be no justification for selecting lawyers with deep ties to the Democratic Party to investigate a Republican president whose victory they considered illegitimate — at least not if Mueller cared at all about public confidence in his team’s work.
Americans who care to follow the facts simply cannot understand why Mueller would pick someone like Andrew Weissmann as his top deputy. Weissmann has developed a well-deserved reputation over the past three decades for wrongfully securing convictions by withholding evidence, misleading the courts, and otherwise perverting the justice system in some of the worst ways possible.
Mueller was well aware of Weissmann’s reputation when he picked him, having chosen to work with Weissmann at the FBI years earlier, even after Weissmann was singled out by a federal judge for his extraordinarily unethical conduct in a previous case.
Mueller also chose Jeannie Rhee, a lawyer who actually represented Hillary Clinton in the investigation of her email scandal. Again, Mueller knew exactly what he was doing. The special counsel selected Rhee from his own law firm. That choice is especially concerning now that we know the Justice Department went out of its way to protect Clinton from criminal prosecution related to her email scandal.
One can go right down the list of Mueller’s legal staff choices and fairly ask what he possibly could have been thinking in selecting these people.
•David Schoen is a civil rights and criminal defense lawyer based in Montgomery, Alabama and has served as trial counsel in the past for the Democratic Party. This article was originally published by Fox News.