WASHINGTON – To hear President Trump tweet it, special prosecutor Robert Mueller's probe of Russian interference in the 2016 presidential election is as partisan as a campaign button.
Make that 13 campaign buttons, all bright blue, all Democratic.
"Why does the Mueller team have 13 hardened Democrats, some big Crooked Hillary supporters, and Zero Republicans? Another Dem recently added ... does anyone think this is fair? And yet, there is NO COLLUSION!" Trump tweeted on Sunday.
Now this tweet calls for a fact-check – which Trump would hate – as well as a closer look at the mixing of politics and prosecution, which the president probably won't find much more to his liking.
The fact-check starts with what Trump left out. Mueller himself – the guy leading the investigation – is a Republican, a widely respected Boy Scout type nominated to be FBI director by President George W. Bush, also a Republican. And Rod Rosenstein, the deputy attorney general who appointed Mueller, is a Republican and a Trump nominee.
So the special counsel's probe is led by Republicans, even though Trump is right that Mueller's team includes 13 people who registered as Democrats at one time or another (but then again, so did Trump). Mueller's team also includes four other people who either had no political affiliation or whose party registration could not be identified.
More worrisome than party affiliation is the fact that nine of those 13 people gave money to Democrats – including six who donated to Trump's 2016 rival, Hillary Clinton, according to a fine analysis of the issue by the Washington Post's Matt Zapotosky.
All of which raises some important questions, the first of which being: Why are federal prosecutors – people who sometimes investigate politicians – allowed to belong to a political party and give money to candidates?
It seems like bad judgment for prosecutors to do so, but there's no way to stop them from exercising that bad judgment. Federal prosecutors are Americans, too, entitled to the same political rights as everyone else. And remember that the Supreme Court has ruled that political giving is a form of free speech.
Now that doesn't mean prosecutors can be as political as the average American. The Justice Department has a set of rules that prevents them from all sorts of political activity, from running for office to even wearing a campaign button.
And of course, prosecutors are barred from allowing their political leanings influence their prosecutions.
Still, one has to ask: do they?
As for the Mueller team, it certainly doesn't look good that he hired so many Democrats. But does that poison the investigation, as Trump says it does? Probably not.
As Zapotosky points out, Mueller hired primarily from the ranks of Justice Department lawyers, who are widely thought to be left-leaning. But those lawyers are relying on FBI agents to do the digging. And despite the embarrassing Trump-bashing texts between two furtive lovers on the FBI team, the typical FBI agent tends to be white, male and conservative, thereby presumably providing some partisan balance to the special counsel probe no matter how much the president bashes the FBI.
Still, there's something about prosecutors dabbling in politics in any way that just feels wrong – and there is at least some evidence that it is. Sanford C. Gordon, a law professor at New York University, found evidence of political bias in prosecutions brought by both the Democratic Clinton administration and the Republican George W. Bush administration.
Then there's the matter of prosecutors using their posts as springboards into politics. Fordham University law professor Jed Shugerman is working on a book showing that more and more prosecutors are doing just that – and that their political ambitions affect the cases they bring to court.
This, of course, is not a new phenomenon. As part of his research, Shugerman compiled a comprehensive spreadsheet of prosecutors who went into politics, and there are some notable names on the New York list – from Buffalo's own Grover Cleveland to Thomas Dewey. (And because he didn't look at state attorney generals and New York mayors, he missed Buffalo's Dennis Vacco and former New York Mayor Rudy Giuliani.)
It seems impossible, though, to entirely remove politics from the federal judicial system. After all, the Constitution calls on presidents to make top-level Justice Department appointments, and presidents are inherently political. Besides, if you have ever met someone with absolutely no political beliefs, think about that person and ask yourself: Do you want to see that person collecting evidence and arguing in court to throw a crook behind bars?
No, we want prosecutors who exhibit character and competence, not cluelessness. And until Trump came along, no one ever really questioned Mueller's character or competence.
We can trust in this much: Mueller has a sterling reputation that he probably would not want to damage at the age of 73, one that contrasts quite a bit with Trump's reputation. And in practice, Mueller is the exact opposite of the publicity-seeking prosecutor aiming for a political career: for proof, check out this Politico profile, headlined: "Robert Mueller has no comment."
Besides, in the end, every high-profile prosecution comes down to evidence. And evidence is neither Democratic nor Republican; it's just evidence, and it can only hurt Trump if there's a lot of it, and if it's really, really bad.
President Trump welcomes Saudi Arabia's Crown Prince Mohammed Bin Salman to the White House and later speaks at the National Republican Congressional Campaign Committee's annual March dinner … The Supreme Court hears arguments in a case about the constitutionality of a California law that forces licensed pro-life centers to post information on how to obtain a state-funded abortion … Congressional negotiators continue talks on a bill funding the government through the end of the fiscal year March 23 … House Democratic Leader Nancy Pelosi (D-Calif.), House Democratic Whip Steny Hoyer (D-Md.) and Reps. Bobby Scott (D-Va.), Ted Deutch (D-Fla.) and Elizabeth Esty (D-Conn.) host a forum on school safety and violence prevention.
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