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Was the Mueller investigation ever necessary? Durham report suggests not

Finding of no evidence of Russia collusion calls into question Rod Rosenstein’s epic decision that changed course of Trump presidency.

Published: May 21, 2023 11:30pm

Updated: May 22, 2023 12:13am

In late summer of 2017, Rep. Bill Posey, R-Fla., questioned whether the Robert Mueller special counsel probe into Russia collusion was warranted, so he dropped a letter to the Justice Department seeking answers.

Read Posey's letter here:

Then-Deputy Attorney General Rod Rosenstein, the man who changed the course of the Trump presidency by appointing Mueller, had aide Steven Boyd draft a terse, short letter insisting the decision was lawful and necessary.

"The Special Counsel is carrying out his investigation in accordance with the Department's Special Counsel regulations (see28 CFR §§ 600.4 through 600.10)," Boyd wrote Posey in December 2017, months after the lawmaker first posed questions.

“Under these circumstances and consistent with the Department's longstanding policy regarding the confidentiality and sensitivity relating to pending matters, the Department is not in a position to respond further to your inquiry at this time,” the letter also stated.

Five years later, Rosenstein’s decision to appoint Mueller faces even harsher scrutiny after a new special counsel, John Durham, declared in his final report last week the FBI and DOJ did not have, and never had, evidence that Trump conspired with Russia to hijack the 2016 election.

Durham’s report lays bare some painful realities, including that by the time Rosenstein made the Mueller appointment in May 2017 the FBI had used undercover informants to elicit exculpatory statements from key witnesses, determined key elements of Trump opposition research file known as the Steele dossier were either wrong or unprovable and that Hillary Clinton’s campaign was behind the whole narrative.

Read the top 10 findings of the Durham Report here.

Posey told Just the News last week that DOJ’s response to him in 2017 was disingenuous and misleading and that the agency should have looked at the Clinton-inspired collusion allegations with far greater skepticism before escalating to upgrade the probe to a special counsel like Mueller.

"There's not one ounce of evidence of anything," Posey said in a recent interview with the "John Solomon Reports" podcast. "It was pure, intentional, misleading, trying to misdirect Congress while they try to somehow screw the president."

Rosenstein did not respond to a request for comment this weekend to his law office. But in congressional testimony a few years back he defended the Mueller appointment, saying it was the best way to finish the probe after Trump fired FBI Director James Comey and left then-Deputy Director Andrew McCabe in charge.

"I was concerned that the public would not have confidence in the investigation and that the acting FBI director was not the right person to lead it," he explained to the Senate Judiciary Committee. "I decided that appointing a special counsel was the best way to complete the investigation appropriately and promote public confidence in its conclusions."

Brett Tolman, a former U.S. attorney who served with Rosenstein, said the Russia-gate episode was part of a much larger dynamic in which government institutionalists such as Mueller, Comey and Rosenstein expanded the reach and power of the FBI and DOJ only to see it boomerang on the American people.

Just last week, a new FISA court filing revealed the FBI had abused the same warrantless surveillance powers over 278,000 times in a single year.

"Roughly 20 years ago, around 2003-04, two individuals went to Capitol Hill and testified in front of Congress extolling and begging and pleading for Congress to expand the power of the FBI and DOJ under the Patriot Act and under the FISA Act," Tolman told the "Just the News, No Noise" television show.

"Those two individuals were Jim Comey and Robert Mueller. Now, not coincidentally, years later they would be working hand in glove in terms of the operation that we've heard of now being exposed," he also said.

Tolman said Rosenstein’s appointment of Mueller resulted from the fact that "the political pressure was so substantial given the level of respect at the time for Mueller and Comey. It's very difficult for people to stand up and to actually say, 'Hey, wait a minute, are we sure' because they had given such deference to Mueller and Comey over the years."

Posey, who has been in Congress for most of the last two decades, said his concern is that there has been no consequences for those who built government powers so big or abused them.

"I've seen a lot of injustice since I've been here," he said. "Just like Rosenstein here said that he had a right to do this, that apparently there was evidence. And just like [Democrat Representative] Schiff said over and over and over again: there's clear evidence.

“Well there's been no accountability, no consequences for anyone. You have serious, serious problems at the Department of Justice and the FBI. … Nobody has suffered any consequences. It's just like the financial meltdown. You know, the stockholders get screwed, and nobody's held accountable."