Tapper was right to describe the idea as “deranged.” He added that this is “alarming and scary.” I do not question the validity of the story, just the implications of the story. It is not as scary as the headline would suggest however.
This story has “sources” – the anonymous aides who have given virtually instantaneous leaks in the last four years from meetings in the Oval Office. In this case, within hours of a meeting, the sources apparently told various news outlets on Friday night Trump was discussing martial law and the appointment of controversial former campaign counsel Sidney Powell as a special counsel to investigate the 2020 election. The meeting was described as heated with various aides pushing back on the statements of both Powell and Gen. Michael Flynn, who was recently pardoned by President Trump.
There is every possibility that martial law and the special counsel were raised. The meeting was described as an informal gathering with Powell and Flynn. It would be no surprise that Flynn repeated his view. I criticized Flynn recently for suggesting that martial law would be appropriate given the election controversy. It was an outrageous and reckless statement that was tantamount to a call for tyranny. For those of us who defended Flynn over his abusive prosecution, it was also a disappointment that someone who has long defended this country would embrace such an anti-democratic call. Frankly, Trump should have reminded Flynn that he is speaking to the President of the United States in the Oval Office and such a suggestion is wildly offensive and unhinged.
Flynn repeating his reckless comment in the Oval Office does not make a conspiracy. It is an embarrassment. Even if Trump lost his mind, he would have to carry out a martial rule without the military. The military has said to leave it out of such bizarre discussions.
The suggested appointment of Powell does sound like vintage Trump. However, a Powell appointment is only slightly more feasible than a military takeover. The problem is that Powell would be barred from such an appointment on a myriad of grounds. Let’s just name three.
First, a special counsel is appointed by the Justice Department. Trump recently pushed into Attorney General Bill Barr an early departure from the Department after Barr stated that he had not seen evidence of widespread voting fraud and followed Department ethical rules in not disclosing the Hunter Biden investigation before the election. Barr would clearly not make such an appointment and, even if he did, he clearly would not appoint Powell. It is unlikely that acting Attorney General Jeff Rosen would be any more inclined to do so.
Under the Justice Department regulations, such an appointment must not only be in the public interest but based on a finding that that is a need for additional criminal investigation and “[t]hat investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances.” There has been no such findings by the Justice Department despite Barr making it easier for federal prosecutors to investigate election fraud allegations. To the contrary, courts have uniformly rejected the allegations.
Second, even if a special counsel were considered, Powell could not be ethically appointed. Powell served as counsel to the Trump campaign before she was severed by the Trump campaign after making controversial conspiracy theories. (For the record, I was one of the many people critical of the press conference held with Powell and the sweeping conspiracy theories). It would be unprecedented and unethical to appoint a former Trump campaign lawyer as special counsel under regulations designed to avoid conflicts of interest.
Third, and most importantly, no one at the Justice Department would do it. If President Trump ordered Rosen to appoint Powell, Rosen should (and hopefully would) resign. I have faith that the President would have to fire his way down to the DOJ motor pool before he found anyone willing to make such a clearly unethical and inappropriate appointment.
What is most striking is that such an appointment would doom the well-based investigations set into protective amber by Barr. As I have previously discussed, Barr effectively guaranteed that the investigations of both the Russian investigation and Hunter Biden could be completed even in a Biden Administration. By making Durham special counsel, Barr left Biden and the Democrats in a muddle. Trump may have discussed firing Special Counsel Robert Mueller but he never did it. Biden would have to do what Trump ultimately did not do. On the Hunter Biden investigation, Barr waited until after the election to allow the investigation to be made public. That will make it hard for Biden to even replace the Delaware U.S. Attorney until after the investigation. By waiting until after the election, Barr preserved the integrity of both the investigations and the Department from accusations of political motivations.
If Trump were to appoint Powell, it would be the excuse that Democrats are looking for to terminate all three investigations. Indeed, even the discussion of such an appointment undermines the strong position left by Barr on these investigations.
These are just three reasons why it is unlikely to happen. I do not blame the media for writing about the meeting if it has valid sources. I just wish it would show equal interest in confirmed investigations involving the Russian collusion investigation and the Hunter Biden scandal. Those are not chimerical but real. So is the allegations of sexual misconduct by New York Governor Andrew Cuomo make by a former staff member who was not anonymous.
It is all part of the withdrawal symptoms for a post-Trump media. This was one last sensational story to discuss while burying less popular or convenient stories. There is an alternative. You can honestly and fully cover them all like an independent media.
The greater problem is that, after the President pushed Barr out of office early, he has lost the critical stabilizing force of his Administration. He now lacks that fire wall and source of mature and measured advice. That role will now fall entirely on the shoulders of White House Counsel Pat Cipollone.