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It has been stated (notably, on the latest Commentary podcast) “There’s nothing illegitimate about the Special Counsel’s probe.” Is that really so? Consider the following:
1. It was begun as a counter-intelligence investigation (carrying on the previously existing counter-intelligence investigation of arguably partisan origins). The Special Counsel statute does not permit authorization of a counter-intelligence investigation. It must be a criminal investigation with the exact criminal events to be investigated explicitly spelled out (and there are limits as to what can be investigated based on evidence uncovered that is not pertinent to those crimes). The original authorization declared no such possible crimes.
2. Two months later, Rosenstein attempted to correct the error in point 1 by naming a specific crime, namely, Paul Manafort’s Ukrainian work (whether he properly registered as a foreign agent and whether he properly reported his earnings for tax purposes). However, this matter is unrelated to the 2016 election. Attorney General Sessions recused himself on matters related to the 2016 election only. If a Special Counsel needed to be appointed to pursue a matter unrelated to the 2016 election, the Special Counsel statute empowers the Attorney General (not his assistant) to appoint one and designate the specific matter to be investigated. Rosenstein may have exceeded the authority that fell to him by Sessions’ recusal.
3. The counterintelligence probe was begun based on sketchy, uncorroborated “evidence” provided by Christopher Steele. We are in a bad way as a country if someone is able to whisper fictitious rumors about someone to the most powerful investigative body in the world (in history) and that body declines to corroborate the rumors but proceeds to invade the privacy of an organization that just happens, not by coincidence, to have a good prospect of unseating the political party empowering the probe and whose political goals widely diverge from the incumbent President’s and his party’s nominee.
4. The provenance and funding of the sketchy, uncorroborated “evidence” implicating the opposing political party’s campaign turns out to have been the presidential campaign whose nominee was a former employee of the sitting President and belongs to his political party and was likely to keep in her employ many of the high-ranking officials who started the investigation in the first place. They had a blatant conflict of interest running from the lower-ranking investigators (Strzok and Page – whose texts belie their disgust with and opposition to Trump and his campaign to the extent that they explicitly declare a motive of hindering the campaign) to the high-ranking investigators who have since explicitly declared their virulent opposition to Trump in no uncertain terms or who had received secret private audience with Hillary Clinton’s husband during the campaign or whose spouse had received sizeable sums of money to run a campaign for office (under the organization of the President’s political party).
5. Rather than declare and disclaim the partisan conflicts of interest so that they could be fairly examined by the supervising judiciary (i.e., FISA court) and legislative bodies charged with oversight (i.e., Gang of Eight), not to mention the people of the United States (nearly 67 million of whom voted for Trump), they kept this information hidden and did their best to obscure the discovery of these conflicts as well as the provenance of the sketchy evidence against the Trump campaign.
6. And after Trump was duly elected by the people of the United States and certified by the Electoral College as the next President, the investigators plotted to hide from Trump that his campaign was under investigation. We know this because Susan Rice memorialized a meeting between high-ranking investigators and then-President Obama the subject of which was the extent to which knowledge of the investigation could be kept from Trump.
7. The investigators (Comey, Brennan, Clapper) have subsequently lied about various aspects of the initial investigation (sometimes under oath). Explanations of the timeline and focus of the initial investigation have shifted over time, from Page in Sept 2016 to Papadopoulos on July 31, 2016, to the launching of a confidential informant at various Trump campaign members in “late Spring” 2016. Each version of events betrayed an earlier beginning and eventually predated the Steele Dossier that contained the bulk of the uncorroborated “evidence” against Trump’s campaign. It is a matter of law that false exculpatory statements can be considered evidence of guilt. In this case, misleading statements used to justify the investigation based on tissue-thin hearsay (as well as material that would have to climb Everest to get to the level of hearsay) can be used to impeach the legitimacy of the investigation.
Yeah, but other than that, there is nothing illegitimate about it.