At long last, this investigative exercise is over. Or is it?

Now that Special Counsel Robert Mueller has concluded his investigation, submitted his report to Attorney General William Barr, and has spoken publicly about the report, that more-than two-year, $35 million investigation is over and done.

Personally, upon Mueller’s appointment as Special Counsel, my reaction was decidedly negative. Not because of Mueller himself, who was widely praised, but of the position of special counsel, itself. The record of special counsels, or independent counsels, or special prosecutors, etc., is spotty, at best, and has at times been a significant blot on the concept of justice for all and the rule of law.

Someone who takes on this challenge is taking a chance, and will be judged on his or her results. They cannot afford to fail. If there aren’t ten, twenty or a hundred relevant indictments or pleas, the individual’s reputation will take a big hit. This potential result must have a significant influence on how the ensuing investigation transpires.

History has shown that special counsel investigations are often a license for misfeasance, mischief, and less-than-honorable conduct of the special counsel’s staff.

On that score, my negative response was the correct one.

A special counsel is supposed to be assigned to investigate a known crime when the independence of the people who usually investigate these crimes in the Department of Justice may be in question.

But there was no known crime for Mueller to investigate; his job was to investigate to see if he could find a crime, which was generally imagined to be collusion between Donald Trump and members of his campaign and the Russian effort to affect the outcome of the 2016 election, which Trump won in the traditional manner that American elections are decided.

There was criticism of the investigative team Mueller assembled. The UK Daily Mail reported: “The 16 lawyers known to be operating the Russia probe have previously been found to have made $62,000 in contributions to Democrats but just $2,750 to Republicans, based on Federal Election Records.” The team’s objectivity was suspect.

The special counsel investigation did result in some indictments and guilty pleas. Those indicted in the Russian affair were Russian nationals who will never be put on trial. Most other indictments and pleas were for process crimes or wrongs committed years ago that were unrelated to the campaign and the election, therefore irrelevant to the matter at hand.

Now that the search for a crime is over, Attorney General Barr stands accused of behaving like “the president’s lawyer.” Consider, however, that the attorney general heads the Department of Justice, an Administrative department. As such, the attorney general works for and reports to the President of the United States, Donald Trump.

According to the Department of Justice Website, “The Attorney General represents the United States in legal matters generally and gives advice and opinions to the President and to the heads of the executive departments of the Government when so requested.”

Mueller has filed his final report with Attorney General Barr, as he was supposed to do, has closed his office, and held a news conference to comment on the completion of his work.

After all the hoopla of the investigation, Trump supporters hold the same opinion of the investigation as they did at the beginning, and Trump foes hold the same opinion of the Trump as they did before it. No Trump crimes were charged and little of relevance was accomplished.

Alan Dershowitz is Professor Emeritus at the Harvard Law School, self-identifies as a Democrat who voted for Hillary Clinton, but is one of those who can step beyond political affiliation and look objectively at legal situations. 

In a May 29 op-ed for The Hill, Dershowitz cited former FBI Director James Comey’s improper comments about Hillary Clinton and her team’s mishandling of classified information.

“Mueller, however, did even more,” he wrote. “He went beyond the conclusion of his report and gave a political gift to Democrats in Congress who are seeking to institute impeachment proceedings against President Trump. By implying that President Trump might have committed obstruction of justice, Mueller effectively invited Democrats to institute impeachment proceedings. Obstruction of justice is a ‘high crime and misdemeanor’ which, under the Constitution, authorizes impeachment and removal of the president.”

Dershowitz continued: “Until today, I have defended Mueller against the accusations that he is a partisan. I did not believe that he personally favored either the Democrats or the Republicans, or had a point of view on whether President Trump should be impeached. But I have now changed my mind. By putting his thumb, indeed his elbow, on the scale of justice in favor of impeachment based on obstruction of justice, Mueller has revealed his partisan bias. He also has distorted the critical role of a prosecutor in our justice system.”

Perhaps this will at last bring about the end of special counsels. Lives are ruined and crimes created in the special counsel’s efforts to avoid failure. As Dershowitz said, witnesses are bullied to “sing or compose” when under oath, creating process crimes that cost thousands to defend against, and ruin the lives of persons involved.

This lies well beneath the ideal of American justice.

Manafort trial gets underway; the special counsel circus continues

The trial of Paul Manafort for long-ago allegations of criminal behavior is now underway. Manafort served a weeks-long stint in the presidential campaign of Donald Trump. He may as well have drawn a target on his back, his front, and all around his head. And because of his choosing to join the campaign, he is facing a 32-count indictment alleging he moved more than $30 million in overseas income to his U.S. accounts.

“These are serious charges,” anti-Trumpsters say, hoping against hope that something – anything – will lead to President Trump’s being exiled to a tiny island hundreds of miles from shore. However, the comment that the charges are serious is correct. More on that later. 

But it’s more than just mildly relevant to note that the charges are unrelated to the Trump campaign, the principle members of which Special Counsel Robert Mueller has been trying to connect to law breaking for well more than a year, without success.

This pitifully inadequate result has not dampened the enthusiasm for the much hoped-for proof of criminal misconduct by the campaign among all those who still suffer from Mz. Hillary’s stunning, and prediction-defying defeat.

Here is a dose of reality for these champions of the highly flawed special counsel situation: “There really is no Mueller investigation without Manafort…take away Manafort and everything kind of flitters away,” explains Judicial Watch’s Tom Fitton.

As stated here before, anyone who takes on a high profile special counsel assignment like this one is either crazy, has a large ego, is very talented, or will resort to the gutter. The jury is still out on Mueller, as so far all he has are a bunch of indictments against foreigners who will never stand trial on them, and years-old accusations against Manafort and his associate, Rick Gates.

“Oh, that’s not correct,” you say. “Mueller’s managed to find out about Manafort’s crimes from years ago. That takes a real pro.”

Not so fast. Everything Mueller has on Manafort was known by the FBI way back when, so why wasn’t Manafort tried for those crimes then? Because the FBI lacked sufficient evidence to go to trial.

Here is the analysis of former New Jersey Superior Court Judge Andrew Napolitano: “Paul Manafort was investigated by the federal government by a team of federal prosecutors and FBI agents for all this stuff eight years ago and they exonerated him.”

Napolitano went on to identify the prosecutor going after Manafort back then as none other than the current Assistant Attorney General Rod Rosenstein, who is in charge of this operation for the DOJ, due to the recusal of AG Jeff Sessions. And Napolitano also added this interesting possibility: “Well, now [Rosenstein] runs the Justice Department. And [defense attorneys] have threatened to call Deputy Attorney General Rosenstein as their first witness and have him give to the jury all the reasons why he declined the prosecution of these charges eight years ago.”

We also must not forget that it was Rosenstein who appointed Mueller as special counsel, and gave him a blank slate for what he was supposed to investigate, a blank check to pay for it, and no termination date. Rosenstein literally handed Manafort to Mueller on a silver platter, insufficient evidence and all.

Helping to illustrate just how open to abuse the special counsel mechanism really is, here is Harvard Law professor emeritus, life-long liberal Democrat, but objective legal expert, Alan Dershowitz: "They aren't interested in Manafort, they're interested in Manafort testifying against Trump or providing information," he told Fox News' "America's Newsroom."

"You have to worry not only about squeezed witnesses singing, but about them making up stories, elaborating on stories. The better the story, the better the deal they'll get."

U.S. District Court Judge T.S. Ellis, who is the judge on this case, agrees. “The vernacular is to 'sing,' is what prosecutors use. What you’ve got to be careful of is they may not only sing, they may compose,” Ellis said.

Former U.S. Attorney Joseph diGenova believes that Manafort cannot get a fair trial in D.C. on these charges because of the highly political nature of this case and the pervasive bias against President Trump.

“Paul Manafort cannot get a fair trial in the District of Columbia,” diGenova told host Laura Ingraham on “The Laura Ingraham Show” recently. “We now know from the Scooter Libby case and the interviews with jurors after that case that two-thirds of the jurors in the Scooter Libby case hated the president of the United States, hated Dick Cheney, wanted to know why Cheney wasn’t in the docket along with Scooter Libby.”

Is this the slime that “justice” in America has been dragged down into? 

Manafort could spend the rest of his life in jail for alleged crimes the FBI knew it couldn’t prove way back when the charges were first brought, but with the actions of the special counsel, he might yet be convicted, despite the lack of evidence.

This is the nature of special counsels: Do what you must to convict your target. If that’s not possible find someone guilty of something, otherwise you will look bad.

This is politics at its worst.

Will the special counsel investigation produce anything relevant?

How would you like to have a high-profile job with no firm guidelines for what you have to do, and plenty of money to help you hire as many people as you want to help you do whatever it is you decide to do for as long as you want the job? 

If so, you qualify for a job as a Special Counsel at the United States Department of Justice.

But you'll probably have to wait until former FBI Director Robert Mueller finishes his current run as special counsel, and by the time that happens, you may be ready for retirement.

Ostensibly, this special counsel is investigating possible Russian influence in the 2016 election, something for which no evidence was found during months of research prior to the special counsel’s appointment.

In appointing the special counsel, Deputy Attorney General Rod J. Rosenstein said: “My decision is not a finding that crimes have been committed or that any prosecution is warranted. I have made no such determination.” The job of the special counsel, then, is what?

Since no crime was identified needing investigation, Mueller has carte blanche to investigate whomever he wants for whatever he can find to assist him in whatever it is that he has decided to try to prove actually happened.

This is not an attack on Robert Mueller; it is about a process that is often well below the extraordinary standards of an honest, limited and responsive government of the people intended “to secure the blessings of liberty to ourselves and our posterity,” as established by the U.S. Constitution.

Mueller, in fact, was acknowledged as an honorable man and competent attorney when he was appointed. Back in May, conservative columnist Hugh Hewitt wrote this: “In Mueller, Deputy Attorney General Rod Rosenstein has made an excellent choice that will allow Republicans to again concentrate on turning the country around.”

However, Hewitt went on to say, “It’s true that I have opposed a special prosecutor in the past,” and one reason was that “if the allegations of the politicization of the IRS during Barack Obama’s presidency didn’t warrant a special prosecutor, then this one certainly isn’t necessary now.”

Good, ethical guy or not, having accepted the job, Mueller is now under the gun to produce something. Faced with humiliation after hiring 17 Democrat lawyers, spending thousands or millions of dollars on a months-long, open-ended investigation and coming away empty handed is a result no self-respecting special counsel wants on their record.

An article in The Washington Post notes, “Thus, the idea of a special prosecutor makes sense, in theory. In practice, some investigations headed by special prosecutors have rung up huge tabs while producing modest results.”

To wit: Back in 2003, a CIA employee named Valerie Plame was “outed,” meaning her name and association with the CIA became public knowledge. An Office of the Special Counsel investigation ensued, with Patrick Fitzgerald in charge. After the investigation, a George W. Bush administration official, Lewis “Scooter” Libby, was charged, tried and convicted of making false statements to the grand jury and federal investigators. And, a New York Times reporter, Judith Miller, spent twelve weeks in jail for protecting the identity of a source from the grand jury.

In summary: a crime was committed, an investigation began, a journalist went to jail for protecting a source, a person was convicted for lying about things unrelated to solving the crime, and no one was found guilty of the crime. Such is what can happen with special counsel investigations.

In the current incarnation, an effort is under way allegedly to find someone associated with President Donald Trump who perhaps did something naughty he/she shouldn’t have done with the Russians during the campaign. Thus far the apparent focus is on Paul Manafort, who managed Donald Trump’s campaign until August of 2016, and who lived in Trump Tower where Trump lived during the campaign.

Manafort was the subject of federal wiretaps before the campaign in 2014, and again in 2016, either during the campaign or perhaps after he had left it. It is fair to ask who else, if anyone, in Trump Tower was wiretapped during the campaign.

When Trump suggested his campaign had been wiretapped, Democrats, liberals and much of the media ridiculed him. Could they have been wrong?

More recently, Mueller and his investigation have come under some criticism, with some characterizing the exercise as a waste of time and a distraction, others calling it a partisan witch-hunt, and one person suggesting a serious crime is being committed.

A retired United States Navy Commander has accused Mueller and other Federal Bureau of Investigation employees of treason for supposedly trying to sabotage President Donald Trump.

Mueller’s team may find an actual election-related crime was committed. Or, more likely, the only wrongs it discovers are unrelated to the Russians or the election, but can serve as leverage to help the special counsel persuade someone to “flip” and provide incriminating information against someone in the Trump campaign.

There are at least 5,000 federal criminal laws, and between 10,000 and 300,000 regulations that can be enforced criminally. Odds are that someone from the Trump campaign will have violated one of them.

Mueller’s charge: A search for justice, or a fishing excursion?

Back in May, the Department of Justice announced that Deputy Attorney General Rod J. Rosenstein had appointed a special counsel “to oversee the previously-confirmed FBI investigation of Russian government efforts to influence the 2016 presidential election and related matters.”

Rosenstein said he had “determined that it is in the public interest for me to exercise my authority and appoint a special counsel to assume responsibility for this matter,” adding that his decision “is not a finding that crimes have been committed or that any prosecution is warranted. ... What I have determined is that based upon the unique circumstances, the public interest requires me to place this investigation under the authority of a person who exercises a degree of independence from the normal chain of command.”

Rosenstein chose former Department of Justice official and former FBI Director Robert S. Mueller, III, a man roundly praised by Democrats and Republicans alike. Supportive comments included that he has impeccable credentials, and the knowledge and ability to do the right thing.

However, over recent months some inconvenient truths have arisen.

A special counsel’s or special prosecutor’s job is to investigate known crimes. As Rosenstein said, no actual crime has been identified. Therefore, the Russian involvement in the election that has commanded the attention of the media and Democrats for more than a year is not a criminal case. It is a counter-intelligence case, which does not require a special counsel.

As Mueller began recruiting his team of lawyers to assist in the investigation, it was noted that some of the early ones were donors to Democrat candidates. And to date, as reported by The Washington Post, of the 14 names confirmed by the special counsel’s office, seven of them have “donated a total of $60,787.77 to [Hillary] Clinton and other party candidates.”

William Barr, Attorney General in the George H.W. Bush administration, told the Post, "In my view, prosecutors who make political contributions are identifying fairly strongly with a political party." Can this investigation be objective?

The order creating the special counsel ostensibly is for investigating Russian election involvement. However, it effectively has no limits. Having found nothing pursuable in the Russian intrigue, which was the reason for appointing a special counsel, Mueller has moved on to other topics. He is now looking into matters involving Lt. Gen. Michael Flynn. If/when that one runs its course, another empty space awaits, like President Donald Trump’s business dealings years ago.

It is not unlike bringing a construction company executive to an empty field without a plan to follow, and saying, “build something.” There is no definite end to this process, unless someone somewhere can be indicted, or be persuaded to confess to something.

Critics say that Mueller’s job, and that of prosecutors generally, is to find a crime, and then to find a perpetrator, and it apparently is of little importance what the crime is, or who is responsible for it. Remember the investigation of Bill and Hillary Clinton in the Whitewater matter? It ended up being the Monica Lewinski matter. The two were barely related, if at all.

Prosecutors are known for “flipping” witnesses, pressuring them with prosecution for something – anything – to persuade them to tattle on someone – anyone – in order to avoid prosecution. A prosecutor’s job is, after all, to prosecute. No indictment in this matter indicates a failed investigation. Who wants that on their record?

Recently, Mueller impaneled a grand jury, and some think see that as an indication that Mueller is hot on the trail of criminal activity. And that is certainly a distinct possibility. However, another argument says grand juries are routine tools in such investigations, and assist in subpoenaing witnesses and aiding the investigation. Time will tell.

Be that as it may, conservative talk show host Mark Levin, who is a lawyer and president of the Landmark Legal Foundation, has a more threatening scenario. Calling it a “coup,” he said “Let me tell you what's going on here: they want to drag Donald Jr. in front of a grand jury and everybody else who was in that meeting – all eight of them – and see if they can find any contradictions in their testimony." Since there was no crime involved, Levin said the purpose is to “see if they can get somebody on a 'lie.' Perjury."

And now some suggest that Mueller is in breach of the rules and should resign.

The Daily Caller reported that Rep. Trent Franks, R-AZ, said, “Robert Mueller is in ‘clear violation’ of federal law prohibiting a special counsel from having a conflict of interest and therefore must immediately resign as special counsel overseeing the Russia investigation.”

Franks, a senior member of the House Judiciary Committee, said Mueller’s reported friendship with former FBI director James Comey, who first worked under Mueller, leaked information to the press to encourage the appointment of a special counsel. That presents a clear conflict of interest, defined by federal law as: “a personal relationship with any person substantially involved in the conduct that is the subject of the investigation or prosecution.”

At best we have a bunch of Republicans being investigated by a bunch of Democrats. What could possibly go wrong?