“(a) Unless authorized under paragraph (b) of this section, no employee shall participate in a criminal investigation or prosecution if he has a personal or political relationship with ...”At the time Sessions recused himself on advice from the DOJ, there was no crime or even a criminal investigation open, only a counterintelligence probe.
But only a few in the unusually tightly held FBI headquarters’ circle knew that. Justice Department conflicts counsel, accustomed to the criminal cases that are its standard fare, had to consult with the investigators to learn the nature of the case and the potential conflict. We don’t know what was said, but do know that counsel came away thinking that Section 45.2 applied, and so advised Sessions, inexperienced in federal law. Dishonest? Tricky? Disloyal? Take your pick. But Sessions was gone, with only milquetoast Rod Rosenstein to bully into a special counsel—again a Comey specialty for which he had been laying groundwork already.
Comey’s band of subverters deviously made book on Trump, meticulously documenting every presidential syllable, plotting immediately after every Comey–Trump talk.
Unfortunately for Comey, in spite of this weaving spider’s webs of memos designed to impeach his president, Trump did nothing wrong. The worst was Trump’s saying he would “hope” that Comey would “go easy” on Lt. Gen. Michael Flynn, far less commanding than President Barack Obama’s declaration of Hillary Clinton’s innocence before her investigation had concluded.
Comey then got his special counsel, but in an unexpected way. He, along with his bedfellows Andrew McCabe, Lisa Page, Strzok, and others, convinced Rosenstein that Comey’s firing constituted obstruction of ... well, nothing, because there wasn’t yet a criminal investigation or “proceeding” to obstruct.
“The ... Acting Attorney General will appoint a special counsel when he or she determines that a criminal investigation of a person or matter is warranted ...”The firing of Comey, of course, could be made into a potential crime, albeit an extremely tenuous one. So why not use this firing as a basis on which to open a case and bully Rosenstein? Small problem. If firing Comey was the claimed basis for a special counsel, then all of the plotters in the room, including at least McCabe and Rosenstein, perhaps even Robert Mueller, who had interviewed to succeed Comey, were clearly in conflict under the very statute used, wrongly, to recuse Sessions. They were, after all, material witnesses, as well as close allies of Comey. So some other person, an actual unconflicted, honest one, would need to make the special counsel decision, on a highly vaporous claim of criminality. That wouldn’t work for the conspirators.
But Comey had already, we infer, fooled conflicts counsel into conflating the Russia counterintelligence investigation with a criminal one to recuse Sessions. Rosenstein, as a former U.S. attorney, dealt with criminal cases almost exclusively, likely didn’t appreciate this distinction, and who, media reports claim, was stampeded into volunteering to wear a wire to nail Trump (Rosenstein denies this).
Only after the counterintelligence investigation was opened did the special counsel, almost immediately, open Comey’s firing as a criminal matter. Did Rosenstein, McCabe, or others then recuse themselves, knowing they were material witnesses in the only criminal matter that was thus far part of this investigation? They didn’t.
But at least McCabe, now heading the FBI, and Rosenstein, supervising Mueller, weren’t in conflict on the Russia investigation, correct? They would be if the Mueller investigation explored the most important part of the Russian investigation, the abusive FISA warrants, based partially on specious Russian disinformation. After all, McCabe was deeply involved, as were Strzok, Page, and Rosenstein.
Now we know how James Comey’s “loyalty” is “higher”: He acts as though he’s “above” the law.
