Comey, Mueller and the poisonous tree

It is a strange and curious America that fêtes a former FBI director who was fired from his job after exceeding his authority in ways that two presidential campaigns condemned, and who then leaked confidential memos about a president he clearly despises.

But that is the circus our media, politics and legal system has become. Indeed, on one channel, James Comey is one step from jail and, on another channel, he is the spear that will bring down the presidency. On one network the Russia collusion theory is done and, on another network, it’s just a matter of time before Donald Trump’s personal lawyer, Michael Cohen, flips on the president.

{mosads}In the latest Harvard Caps-Harris Poll, nearly 70 percent say that special counsel Robert Mueller and deputy attorney general Rod Rosenstein should not be fired. But 72 percent also say that a second special prosecutor needs to appointed and the actions of Comey and fired FBI deputy director Andrew McCabe should be criminally investigated.

The more we learn about how these massive investigations were started, the more they look so corrupted that this entire investigation now could now qualify as the fruits of a poisonous tree, a doctrine first adopted by Supreme Court Justice Felix Frankfurter as the only way to prevent government agents from abusing the rights of citizens and benefitting from those actions. The government can’t violate people’s rights with impunity and then just say “oops.”

The investigation was polluted from the beginning. Former British spy Christopher Steele was a government contractor when he illegally leaked the dossier and lied about it. Mueller team members and FBI officials Lisa Page and Peter Strzok operated with such open hatred for Trump that they were removed from the investigation after managing key parts of it. The heads of the FBI and CIA participated in spreading and vouching for a Trump dossier they never verified and yet used to spy on Americans.

The yarn leaked to the press about the start of the investigation doesn’t add up. They say it started because Trump campaign adviser George Papadopoulos said in a bar to an Australian diplomat that he heard from a Maltese professor that the Russians had some emails damaging to Clinton. But the source turns out to be a diplomat who happened to have shepherded a $25 million contribution to the Clinton Foundation. The report didn’t come through the official channels but likely through a Democratic operative who worked for the Clinton Foundation.

Perhaps most puzzlingly, Rosenstein wrote a critical memo supporting the Comey firing and then appointed a special counsel after the firing. By doing this, combined with the recusal of Attorney General Jeff Sessions, Rosenstein set up a government within the government, with a super broad charter and practical immunity from being removed. The Mueller investigation then operated without any independent supervision from outside the agency, review by any elected officials or contemporaneous judicial review.

With this kind of freedom, it’s no surprise the treatment of their early targets involved guns-drawn searches, threats to prosecute family members and plea bargains for dubious process crimes even for those who did no actual underlying wrongdoing. Only one of the early targets, former Trump campaign manager Paul Manafort, is even in a position to challenge the special counsel, and he has been all but denied bail, had his assets frozen and even placed under a highly unusual gag order

Mueller knew he may have had an obligation to set aside all of the work of Page and Strzok when he removed them from the case. Instead he simply ignored congressional demands for information on why they were fired until months later, when the Justice Department’s inspector general forced release of their text messages.

The FBI’s stonewalling of the document starting the Russia investigation engenders similar suspicions, especially since House Intelligence Committee Chairman Devin Nunes (R-Calif.), who has seen it, has reported it has no intelligence from official channels. The farther the investigators get from all this initial wrongdoing, the more they believe that their work product and witness interviews are free from being thrown out as fruits of a tree of illegal actions, which explains the endless foot-dragging.

In typical cases, much of what the prosecutors gathered might be exempt from the rule. But if runaway investigations are going to be corralled, then it will take judges who hold special counsels to the strictest possible standards in all their actions and limit any exemptions because such prosecutors have vast, largely unsupervised and unchecked power along with unlimited budgets.

The best way to end all this is not to fire Mueller and Rosenstein or wait for them to wrap it up but to challenge this entire process in court as irretrievably tainted. If Mueller does not agree to end the investigation in exchange for presidential interrogatories, then it may be time to try to block the whole thing in court, with full discovery into whether its foundation was so corrupted — and the stonewalling actions so blatant — that the doctrine of the fruits of a poisonous tree can be invoked to stop this national distraction.

Mark Penn served as pollster and adviser to President Clinton from 1995 to 2000, including during his impeachment. He is chairman of the Harris Poll and author of the recently released book, “Microtrends Squared.”