RUTHFULLY YOURS

One week after a Senate committee approved a bill to protect the special counsel from being fired by the president, both of Robert Mueller’s high-profile cases appear to be in legal jeopardy.

On Friday morning, a federal judge accused Mueller’s team of weaponizing its prosecutorial authority in an effort to take down Donald Trump. U.S. District Judge T. S. Ellis III suggested the special counsel’s case against Paul Manafort, Trump’s former campaign manager, is “about what information Mr. Manafort can give you to lead you to Mr. Trump and an impeachment. President Trump’s prosecution or impeachment—that’s what you’re really after.”

ABC News reported that Ellis, a 30-year veteran of the federal bench, repeatedly criticized the 18-count indictment against Manafort for bank fraud and tax evasion as being unrelated to Mueller’s initial directive, which was to investigate alleged collusion between the Trump campaign and the Russian government before the 2016 presidential election.

Ellis pointed out that “the allegations clearly pre-date the appointment of the special counsel. None of it had any relation to the campaign.” He ascribed ulterior motives to Mueller’s investigation: “You get somebody in a conspiracy and then you tighten the screws. I’ve been here awhile, the vernacular is ‘to sing.’”

Justice is Stonewalling
Judge Ellis also might prevail where Congress has so far failed: Obtaining an unredacted version of Deputy Attorney General Rod Rosenstein’sAugust 2017 memo that purportedly widened Mueller’s powers to include non-collusion crimes against Manafort.

On Monday, the Justice Department—citing “long-standing principles of investigatory independence”—declined a request by Republican lawmakers to see a clean copy of the largely blacked-out memo. The dispute devolved into a war of words this week between Rosenstein and some GOP leaders amid impeachment threats and accusations of extortion.

It’s time to level with the public about the basis for Mueller’s investigation.

‘How do you know Trump’s not a suspect?”

I’ve been hearing that question a lot these days. News reports indicate that Special Counsel Robert Mueller may try to coerce President Trump’s testimony by issuing a grand-jury subpoena if the president does not agree to a “voluntary” interview. That has sparked a public debate over the question of whether Mueller, an inferior executive officer, has such authority to strong-arm the chief executive — the official in whom the Constitution reposes all executive power, including the power that Mueller exercises only as long as the president permits it.

I don’t think he does.

To be clear, there is no question that Mueller, as a special counsel, is a federal prosecutor who has the authority to issue grand-jury subpoenas. But everyone who works in the Justice Department has a boss, including the attorney general (who answers to the president). As special counsel, Mueller answers to Deputy Attorney General Rod Rosenstein (because Attorney General Jeff Sessions recused himself from the so-called Russia investigation). That means Mueller has the authority to issue a subpoena to the president unless Rosenstein — or the president — tells him not to.

Before we come to whether the deputy AG should clip the special counsel’s wings, let’s address one point of confusion.

Many people believe, as I do, that the president should not be subjected to questioning by a prosecutor on the facts as we presently known them. From that premise, however, they argue that Mueller may not subpoena the president, or that the president may ignore any subpoena. Neither of those things is true.

Those against Gina Haspel being confirmed utter the word “torturer” yet refuse to say “Islamist jihadist.” They have a problem with her involvement in the enhanced interrogation program, but are willing to overlook the fact that she has been acting director ever since Mike Pompeo has been confirmed as secretary of state. If she is so horrible, how could they let her be in that position even for a day? The answer, according to 9-11 families, is that she was the shield that kept Americans safe during the turbulent times right after September 11.

David Beamer lost his son, Todd, after United Flight 93 crashed into the Pennsylvania countryside. He expressed the sentiment of all the other 9-11 families interviewed, supporting Gina Haspel as CIA director. “She has given the prime years of her life in service to protect us. Her performance, intellect, dedication, and skills have been recognized in many assignments.”

His answer to those who criticize the enhanced interrogation program: “Unlike my son, none of the enemy died during interrogation. The plans that they executed caused the death of many free and innocent people, just as they intended, as much collateral damage as possible that was their objective. If some uncomfortable questioning leads to uncovering further attacks and lives saved, so be it.”

Gordon Haberman concurs: “Our beautiful, vibrant, loving Andrea was subjected to torture. She was alive after the building was hit and then brutalized in a desperate attempt to escape the inferno. She was then ripped apart as she died. It haunts me till this day. I only hope she was dead before being dismembered in this manner. In seventeen years, they have recovered and identified eleven pieces of her. Do I worry about how those who perpetrated this act were treated after being caught alive and are still alive? No.”

Democrats have made a political calculation to delay or challenge every Donald Trump nominee, no matter the merits, and one egregious episode is playing out now. The left is smearing a nominee for CIA Director as a queen of torture, but the White House can win this argument if it rebuts the charges head on.

On Wednesday Gina Haspel will appear before the Senate Intelligence Committee for a confirmation hearing, and her critics are gearing up for a mugging. Ms. Haspel is largely unknown to the American public: Only recently did the CIA declassify some of the details of her 33-year CIA career. Ms. Haspel started as a case officer in Africa and after assignments around the world in its operations directorate became deputy director in 2017.

Ms. Haspel is the first CIA officer in more than five decades to reach the top position. She won the confidence of former director Mike Pompeo as his deputy, so the agency’s leadership transition would be straightforward.

The problem is that Democrats and Rand Paul of Kentucky are painting her as an unrepentant torturer. The specific rap is that Ms. Haspel in the early 2000s “ran a secret center in Thailand where prisoners were tortured,” as Mr. Paul put it in an op-ed. She is also branded for involvement in destroying tapes of CIA waterboarding.

Americans can disagree about the merits of enhanced interrogation after 9/11, but there’s no debating that the CIA’s interrogation program was legal at the time. The Justice Department Office of Legal Counsel produced memos making the legal case. The memos were withdrawn some years later, and Congress has also since changed the law to ban some of the techniques that were used in the immediate wake of 9/11. But Ms. Haspel is not responsible for any legal errors. Her job was to protect the country.

Special counsel Robert Mueller is used to getting kid-glove treatment. That changed Friday in a federal courtroom in Virginia, where Judge T.S. Ellis directed a blunt challenge to the Mueller team prosecuting former Trump campaign manager Paul Manafort on charges of tax and bank fraud, some of which date back to 2005.

“I don’t see what relation this indictment has with what the special counsel is authorized to investigate. You don’t really care about Mr. Manafort’s bank fraud,” Judge Ellis told Michael Dreeben, who was representing Mr. Mueller in court. “What you really care about is what information Mr. Manafort could give you that would reflect on Mr. Trump or lead to his prosecution or impeachment.”

Judge Ellis won’t win a diplomacy-in-judging prize, but his sharp words expose a central problem with the evolution of the Mueller probe. Though he was appointed to investigate collusion between Russia and the Trump campaign in 2016, Mr. Mueller’s indictments thus far have concerned other matters—lying to the FBI, or in Mr. Manafort’s case actions relating to his business with Ukraine.

Mr. Manafort’s team wants Judge Ellis to throw out the charges on grounds they exceed Mr. Mueller’s original mandate. And the judge’s questions leave the Mueller team in a difficult position. Essentially Mr. Mueller’s prosecutors now have to argue that even if they violated the Justice Department’s rules, it shouldn’t matter.

Mr. Dreeben of Team Mueller responded that the indictment doesn’t exceed the special counsel’s mandate, but the judge wants to see specifically the full and unredacted August 2, 2017 memo from Deputy Attorney General Rod Rosenstein saying what Mr. Mueller could pursue. The judge put it this way: “What we don’t want in this country, we don’t want anyone with unfettered power. It’s unlikely you’re going to persuade me the special counsel has unlimited powers to do anything he or she wants.”