After U.S. Attorney General Jeff Sessions recused himself from the FBI’s investigation of the so-called Russian meddling in the 2016 presidential election, the responsibility for supervising the Russia probe went to U.S. Deputy Attorney General Rod Rosenstein, who, during the time period since Sessions’ recusal took place, had been serving as acting attorney general.
Rosenstein is the official who appointed Robert Mueller as a special counsel to take over the FBI investigation.
As previously represented by President Donald J. Trump, former FBI director James Comey, in his sworn testimony before a congressional committee, indicated that the president was not the subject of any FBI probe.
The Washington Post subsequently published a story based on anonymous sources from unnamed government departments, which claimed the president is now being personally investigated by the special counsel’s office for obstruction of justice.
However, it is not possible for a legitimate charge of obstruction of justice to be made — either legally or constitutionally. Additionally, mounting conflicts of interest involved with the special counsel investigation mandate the recusal of Rosenstein and his special counsel appointee Mueller.
As sitting president of the U.S., the complete and all-encompassing constitutional authority to remove Comey at the time from his position as FBI director were within the exclusive purview of the president, and the president’s motivations for doing so were, and still are, wholly immaterial.
When he held the position of FBI director, Comey was obliged to report to his immediate superior, the attorney general, Sessions, who in turn was obliged to report to the president.
Curiously, Comey claimed during his sworn testimony that the FBI is an "independent agency" of the government, a statement that is legally incorrect.
Rather, the FBI is a component of the executive branch, with Article II of the Constitution assigning to the president the position of head of the executive branch, along with the comprehensive power to hire and fire personnel and commence or modify investigations at his discretion.
The obstruction case is predicated upon whether the president’s firing of Comey as FBI director falls into either of two federal statutes, 18 U.S.C. 1505 or 18 U.S.C. 1512(c)(2), both of which begin with the words "Whoever corruptly . . . "and define the crime as occurring when one "obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States . . . "
The primary problem with the current partisan fixation on obstruction of justice potentiality is that the required "corrupt intent" cannot coexist with the defined constitutional power of the presidency; this is because, as head of the executive branch, the president’s authority to remove the FBI director is a plenary discretionary one, meaning that it is a complete and absolute power to take such action. (For purposes of illustration, another example of presidential plenary power would be the power to grant pardons for federal crimes, also granted by Article II of the Constitution.)
The founders gave this type of complete constitutional power to the president to insure that the executive branch would have sufficient authority to adequately function as part of the co-equal branches of government.
Adding to questions surrounding the special counsel investigation is the fact that Rosenstein, as the current deputy attorney general, is the official who is in charge of the special counsel’s activities.
An obstruction case against the president would require scrutiny of the drafting, intent, and background of Rosenstein’s memo, which set forth the recommendation that Comey be terminated. Rosenstein would then end up being a key witness in the same investigation that he is duty bound to supervise.
This is the textbook definition of a conflict of interest. Under these circumstances, Rosenstein must recuse himself from any supervisory role in the special counsel’s investigation.
As previously set forth in this writer’s prior articles, Mueller’s close personal and professional relationship with Comey sets up a conflict of interest for the special counsel, which has been severely exacerbated by Comey’s admission that he leaked a memorandum to the press through an intermediary in an attempt to prompt an appointment of a special counsel.
Ironically, there is a viable case for obstruction of justice to be asserted against Comey, which stands in contrast to the questionable Post story on purported obstruction of justice investigation of the president.
During sworn testimony, Comey admitted to be a leaker. He also told of his own motivation — to urge the appointment of a special counsel.
This, in fact, is precisely what happened. Comey got his wish with the appointment of Special Counsel Mueller.
Comey arguably influenced the course of an ongoing criminal investigation and, if he did so "corruptly" it could constitute obstruction. Moreover, he used an FBI computer to create a memo of an incident that took place within his scope of work, which involved a meeting with the president and the conversation that transpired between the then-acting director and the nation’s chief executive.
The above referenced memo is a government document that could potentially represent an item of evidence in a criminal investigation. The intentional disclosure of such a document without authorization violates a specific federal statute, 18 U.S.C. § 641. Consequently, Comey, as a potential target of the investigation, creates an even greater conflict of interest for Mueller.
In July of 2016, the former FBI director took it upon himself to rewrite the law when he ignored a statute that imposed criminal responsibility with a showing of a defendant’s gross negligence. Despite saying that there was evidence that former Secretary of State Hilary Clinton had been "extremely careless" in her handling of classified material, he falsely insisted that "no reasonable prosecutor would bring such a case" because there was not evidence of intent.
The question then arises, Would a reasonable prosecutor continue in an investigation of a constitutionally infeasible criminal matter?
If the Post story turns out to be real news, what we will have is an investigation of an impossible crime being conducted by a special counsel who is burdened by severe conflicts and supervised by another conflicted official.
And it will tragically fit to a T the definition of a witch hunt.
James Hirsen, J.D., M.A., in media psychology, is a New York Times best-selling author, media analyst, and law professor. Visit Newsmax TV Hollywood. Read more reports from James Hirsen — Click Here Now.
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