The Mounting Attacks on Mueller Are Misguided and Dangerous

When I worked in the U.S. Attorney’s Office in Washington in the 1990s, I was part of the team pursuing the corruption prosecution of Illinois Rep. Dan Rostenkowski. Rostenkowski was chairman of the House Ways and Means Committee, one of the most powerful Democrats on Capitol Hill and a key political ally in advancing President Bill Clinton’s legislative agenda.

I’m pretty sure most of us on that team were Democrats or at least leaned Democrat. I know that Rostenkowski was indicted, convicted and sent to jail under the leadership of U.S. Attorney Eric Holder and Attorney General Janet Reno — both Democrats.

I can’t be certain about the political views of my former fellow prosecutors because the topic simply never came up. It was completely irrelevant to our work. The Rostenkowski investigation began under a Republican administration, and when a Democratic administration was elected in 1992, we soldiered on as though nothing important had changed — because it hadn’t.

I’m reminded of this experience when I hear the current attacks on Special Counsel Robert Mueller’s team of prosecutors and FBI agents. Critics on the right charge that Mueller’s investigation is politically biased or worse. Some of the attacks are particularly vitriolic. Sean Hannity has called Mueller a “disgrace to the American justice system” and said his investigation is “corrupt” and abusive. Newt Gingrich, who effusively praised Mueller when he was appointed, now says Mueller’s probe is corrupt, dishonest and a “partisan hit.”

These types of attacks are not entirely new. Every public-corruption investigation has some political overtones, and the targets often accuse prosecutors of being engaged in a partisan “witch hunt.” Democrats were critical of independent counsel Kenneth Starr during the Whitewater investigation. But the intensity of the growing attacks on Mueller — last known to be a registered Republican — seems unprecedented.

One way they are unprecedented — for the most part, the attacks are not based on anything Mueller has actually done. His investigation and the criminal charges he has brought so far appear solid and do not suggest any partisan bias. Rather, critics have seized on issues such as an FBI official who sent anti-Trump text messages, even though the official was booted off the Mueller team this past summer once the texts were revealed. These critics also point to prosecutors who have donated to Democrats in the past or who praised former acting Attorney General Sally Yates when she refused to enforce Mr. Trump’s first travel ban because she believed it was unconstitutional — a view later shared by federal courts.

Such criticisms betray a profound misunderstanding of the way professional prosecutors and FBI agents do their jobs. Prosecutors and agents are human. They are allowed to have political views, belong to political parties and support political candidates. It is not a conflict of interest if a prosecutor who belongs to one political party is involved in an investigation of a politician from another party. We’ve never had a system where Republicans could be investigated only by partisan Republicans or vice versa.

We live in a hypercharged environment, where almost every move is seen through a partisan political lens. Many people don’t believe that a prosecutor such as Mueller could simply follow the facts and the law. But that’s exactly what happens. Prosecutors and agents set aside their personal politics when they work on investigations, and it’s essential that they do so. In this country, we don’t use criminal prosecutions to attack political enemies. That’s the stuff of despots and dictators, not the American justice system. For good prosecutors and agents, this principle is part of their DNA.

No human system is without bad actors, and law enforcement is no exception. But it’s ridiculous to suggest that an FBI agent who holds strong political views or a prosecutor who has supported Democrats in the past somehow taint Mueller’s entire investigation. Prosecutors deserve to have their actions scrutinized, but they should be judged on what they do as prosecutors, not on wild speculations based on their personal beliefs.

The mounting attacks on Mueller are misguided and dangerous. Those who would seek to undermine this cornerstone of our justice system based on such flimsy evidence should think twice about what they are doing. Norms and institutions are fragile things not easily restored once the public loses confidence in them. Destroying the fundamental norm under which we have operated for more than two centuries — that criminal law is not used for political purposes — will send this country to a dark place where we don’t want to be.

If attacks like those being levied at Mueller’s team become routine, we are effectively saying we are no better than a third-world dictatorship where people are jailed over political differences. … Politics may infect more and more of our daily lives, but it absolutely cannot be allowed to infect the criminal-justice system. Absent actual proof, we should not assume that it has.

It’s easy to predict the responses this column will receive. Many will accuse me of being hopelessly naive to believe that criminal investigators can act without political motives. I can only respond that I’ve done it, I’ve seen many others do it, and it has always been the expected standard within the Justice Department. There is absolutely no sound reason to believe that Mueller and his team are doing anything less.

Eliason teaches white-collar criminal law at George Washington University Law School.