Drinking Deeply of Mueller Time

Mueller doesn't give Democrats what they want - as if that matters.

One of the many worthwhile bits of ancient wisdom is, "Be careful what you wish for, you might get it."  The Democrats have been clamoring for years now for special counsel Robert Mueller's report, sublimely confident that it would include an avalanche of sordid details sufficient to drive President Donald Trump from the Oval Office and into jail.

With the ending of the two-year investigation of trumped-up claims of collusion by Mr. Trump, in which the report found nothing untoward on Mr. Trump's part whatsoever, the Democrats have switched to claiming that there is a cover-up in progress. Meanwhile, Trump and the Republicans can barely contain their glee at how their opponents stand revealed in all their flagrant dishonesty.

They believe, or seem to believe, or want to appear to believe, or want the MSM to tell everyone, that Attorney General Barr has misrepresented the Mueller report: that his 4-page summary has left out material that is damaging to Mr. Trump that Mr. Mueller found but somehow did not leak.  Politico reports that they are demanding that the entire report be released at once and that Mr. Trump not even be given a look before it's all made public.

Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer are demanding the public release of the full Mueller report and raising questions about whether there is evidence President Donald Trump committed obstruction of justice. House Judiciary Chair Jerry Nadler announced he would be calling the Attorney General William Barr to testify. Democratic and progressive legal analysts are picking apart Barr's letter to suggest a cover-up.  [emphasis added]

We remember how strongly Democrats pushed to suppress most of Mr. Starr's report about his investigation of President Clinton.  It's no surprise that the very same Democrats who suppressed the Clinton dossier want to release everything about Mr. Trump - if it weren't for double standards, Democrats would have no standards at all - but they haven't thought this through.  The consequences would be terrible both for them and for us, because releasing the entirety of the Mueller report would undermine a great many of the "due process" protections our founders gave us.

Before we get to that, please note that Attorney General Barr has stated unequivocally that Mr. Mueller found no evidence of any collusion between Mr. Trump and any Russians to influence the 2016 election, even though various Russians made many attempts to get in touch with members of the Trump campaign team.  Mr. Barr has long experience with the cut-throat atmosphere in the Beltway swamp.  He would never dare to make such a statement if the Mueller report contained the slightest hint that collusion had occurred.

What about "obstruction of justice?"  Mr. Barr's letter said that Mr. Mueller didn't state whether Mr. Trump had or had not obstructed justice, but that after reviewing the evidence, he and Assistant AG Rosenstein had decided that Mr. Trump hadn't obstructed.

Like all but the most fevered members of the anti-Trump resistance, we take it as settled that Mr. Trump did not collude with Russians to affect the 2016 election.  With that out of the way, we can discuss the ramifications of full disclosure.

Firing Mr. Comey

Democrats' howling about obstructing justice centers around Mr. Trump firing former FBI director James Comey and constantly criticizing Mr. Mueller via his famous Tweets.

Mr. Trump said that he fired Mr. Comey partly on the basis of a negative job performance report he received from Assistant Attorney General Rosenstein, and partly because of his handling of what Mr. Trump called "the Russia thing."

Mr. Comey admitted that he had repeatedly told Mr. Trump that Mr. Trump was not being investigated, which was a lie.  We can understand Mr. Trump's irritation at being told he wasn't being investigated while Mr. Comey refused to say so publicly - and it's even more enraging to discover that he was in fact being investigated, and Mr. Comey preferred lying to his boss the President rather than to the media.  Nobody appreciates lying underlings, and firing liars is considered to be normal administrative behavior.

There was every reason to dump Mr. Comey, but it doesn't really matter what Mr. Trump's motivations may have been in firing him.  The Constitution gives any President the right to fire appointees under his authority, including not only the Attorney General but the director of the FBI.  By definition, there can be no obstruction of justice in Mr. Trump exercising his constitutional authority for whatever reason.

If people think they disagree with his reasons, they have every right to let their displeasure be felt at the next election or by demanding impeachment if the politics of the day demand it, but judging a President's motives is not a job for any court.

How is a President, any President, supposed to hire and fire staff if anytime anybody doesn't like a selection, they can try to link the action to some investigation - and, from now on, there will certainly always be one going on?

If our politics of personal destruction has gotten to the point that a President's presumed state of mind when he carries out his duties is grounds for impeachment or for court rulings against him, we've lost our ability to govern at all.  No matter whether you think the Republicans are evil or the Democrats are evil, the only thing that is worse than an evil government is anarchy.  Some people just want to watch the world burn - but most of us don't feel that way.

Criticizing Mr. Mueller

The Democrats assert that Mr. Trump's tweets accusing Mr. Mueller of conducting a "witch hunt" constitute interference in Mr. Mueller's investigation.  They see this as obstruction of justice.

Ponder that for a moment.  Mr. Mueller has not only confirmed that Mr. Trump was as innocent of collusion as Mr. Trump had said over and over, the investigation also showed that Mr. Trump's claims to have been wiretapped and spied on during the campaign were true.

Suppose a neighbor makes a splashy false accusation against you in public and gets the police to start investigating you.  You know that the charges ere false, but there is no way to prove a negative.

Except for MeToo activists who proclaim that we must "believe all women (who accuse Republicans)" regardless of evidence, it's generally accepted that our justice system assumes that the accused is innocent and requires that proof of guilt be established.  We call this "due process."  If the crime can't be proved based on the rules of evidence, the presumption of innocence stands, or should stand.

For the past two years, our media has breathlessly reported that Mr. Trump would be led out of the White House in handcuffs Any Day Now!  Instead, Trump not only knew he was innocent, he soon found out that even the biased FBI agent investigating him, Peter Strzok, had texted that "there is no real there there" before the collusion investigation even began.

In other words, Mr. Trump knew he was innocent.  He also knew that Mr. Mueller knew that he was innocent, but the investigation churned on anyway.  This gave his enemies in the MSM two years of opportunity to attack anything he did, based on what we now know to be nothing at all.  That level of perfidy certainly wouldn't have endeared Mr. Mueller to Mr. Trump.

If that happened to you, would you be justified in claiming as loudly as you could that the police were in a Witch Hunt?  Particularly if you found out that the police had wiretapped you and your family illegally and that they knew you were innocent but kept the investigation and negative publicity going anyway?  Would criticizing them be obstruction of justice?

It's hard to see how there could be obstruction of justice without an underlying crime to justify the investigation.  But even if there were an underlying crime, do not Americans have the First Amendment right to proclaim their own innocence even if they are, in fact, guilty?  How many mayors, governors, and chiefs of police have been accused of corruption, protested their innocence loudly, yet been convicted in court?  The fact that they are in authority over various law enforcement agencies doesn't mean that any one person controls all law enforcement.  The President doesn't either.

The firmest proof that accusations of obstruction of justice are nonsense is: Mr. Mueller did in fact complete his investigation.  He was not fired, his pointless snipe-hunt was not cut short, he wasn't even defunded.  He did his darnedest and it was all a damp squib, regardless of President Trump's angry, and now visibly justified, tweets.

Requirements of Secrecy

Donald Trump has finally been shown to be innocent, but in the meantime every aspect of his life has been gone over with a fine-toothed comb.

We're going to make an assumption about the personal probity of our readers, and suppose you are not guilty of a major felony.  You are, in that sense innocent!

Does that mean you'd be happy if the FBI tapped your phones, gave everyone you've ever met the third degree under oath, and trawled through all your financial and business records with a multi-million-dollar investigatory budget?  And then released everything they'd found to the media?

Of course not!  What would be fair about that?  Our laws are so byzantine that we've all violated something or other; that's why our justice system requires some legitimate reason to go hunting for evidence and only allows the evidence to be made public if a crime is found and prosecuted in open court.

The presumption of innocence is an essential part of our justice system, but grand jury secrecy is another vital element.  Suppose your neighbor quietly accuses you to the police, they investigate quietly, and present what they find to a grand jury.  The grand jury decides that there's so little evidence that they won't let the prosecutor charge you with a crime.

Although most grand juries are so pliant that a prosecutor once said he could indite a ham sandwich, grand juries have awesome powers if they choose to use them.  They can ask their own questions.  They can insist that the judge summon witnesses the prosecution hasn't called.  A properly-functioning grand jury is a citizen's first line of defense against arbitrary prosecution.

If the grand jury insists that there's no crime, there's no crime, or at least that's how it's supposed to work.  While there are ways for prosecutors to try a case even when the grand jury disagreed, it looks bad and gives the defendant a weapon in court.

Grand jury proceedings are secret for good reason.  The cops take their evidence to the grand jury; the grand jury says you didn't commit a crime.  Would you want the fact that you were investigated, and what about, made public?

If a prosecutor can't make a case to a grand jury, it's wrong to spread the word that there was an investigation, much less talk about anything that was found.  We all know why the media and the Democrats want the whole report, and it has nothing to do with justice.

Besides, two can play at that game.  There's ample reason for a thorough investigation of, say, Hillary Clinton.  Do they really want this to take place, and then every single thing found to be laid before the public?

Other Safeguards

There are two more protections that aren't well known, but which can be just as important to the liberties of all.  Wikipedia describes them:

Jury Nullification:

Jury nullification is a concept where members of a trial jury find a defendant not guilty if they do not support a government's law, do not believe it is constitutional or humane, or do not support a possible punishment for breaking the law. This may happen in both civil and criminal trials. In a criminal trial, a jury nullifies by acquitting a defendant, even though the members of the jury may believe that the defendant did commit the alleged crime.

A jury whose members disagree with our drug laws could nullify in favor of someone who'd been caught dealing drugs.  This is such a potent way of ensuring that laws are acceptable to the community that judges generally forbid defense lawyers to tell the jury about nullification.

Fortunately, there are organizations that visit courts and hand leaflets about nullification to potential jurors.  Please read up on it if you're ever summoned to jury duty and aren't convinced that the laws you are being called on to enforce are just.

This isn't going to be relevant for Donald Trump today, but it might be in the future: the Southern District of New York is said to be continuing their investigation, and who knows what they'll find.  Being a state entirely run by Democrats, it's all too easy to imagine a politically-powered prosecution, but let's hope that actual jurors have a stronger sense of justice than New York State attorneys tend to.

Shocks the conscience:

Shocks the conscience is a phrase used as a legal standard in the United States and Canada. An action is understood to "shock the conscience" if it is perceived as manifestly and grossly unjust, typically by a judge.  [emphasis in the original]

A judge can toss out any accusation that "shocks the conscience of the court."  They don't generally do that even when you'd think anyone not a moral midget would - we reported a situation where a judge let a city seize a $245,000 house from an emotionally-challenged man because of an unpaid $50 fine - but it's another of our Founders' innovations to protect us from arbitrary government action.

It's been said that it somehow would constitute a crime if Donald Trump paid Stormy Daniels to shut up about accusations of a sexual relationship.  This should be absurd on its face, but if it constitutes "wire fraud" to pay to slide your underperforming kid into a top-tier college, anything's possible.

Locking somebody up because they used their own money to buy the silence of someone that they may, or may not, have had consensual sex with, would have shocked the conscience fifty years ago when many people felt that sex outside of marriage was inherently wrong.  Now that next to nobody feels that way anymore, such a penalty would be even more shocking; another useful reminder to any potential jurors in the state of New York.

Now It's Mueller Time

Mr. Mueller knows the swamp far better than most.  He's aware of the "In Mueller We Trust" bumper stickers rolling around DC.  He knows that he was given a mission to rid the White House of an inhabitant who was unacceptable to the swamp.

He knowns full well that Democrats judge him solely on the basis of what helps them by hurting Mr. Trump.  He saw how Mr. Comey went from saint when he declared Hillary innocent, to sinner when he re-opened the investigation because he feared that the New York office would leak, then back to saint when Mr. Trump so justly fired him.

It was clear that the Democrats expected him to deliver Mr. Trump's head in a charger.  He realized early on that he couldn't do that, but he didn't want to be totally rejected by "polite" DC society, as Harvard professor Alan Dershowitz has been rejected for the unforgivable sin of defending Mr. Trump.

In the end, Mr. Mueller was at least honest enough not to manufacture evidence of collusion when there wasn't any for him to find, but he was able to stall the process and keep criticism going until after the midterm elections gave the House to the Democrats.  By being deliberately vague about obstruction of justice and seeming to have included protected grand jury transcripts which can't be released without violating the law, he has probably managed to give the Democrats enough apparent ammunition to keep them off his back.

Indeed, having had ample time to read the fine print of the legislation passed after the impeachment of President Clinton, he's sure to have included enough unreleasable material to give Democrats leeway to switch from collusion to cover-up in attacking Mr. Trump - but, equally surely, not enough to actually convict him of anything, or he'd have presented it already.  Meanwhile, his pension safe, he can slink off into retirement.

Where Do We Go From Here?

It doesn't matter a whit that Mr. Mueller and his almost-all-Democrat prosecutors deployed 40 FBI agents.

They asked 13 nations for evidence.

They executed almost 500 search warrants, grilled around 500 witnesses, and issued more than 2,800 subpoenas.

Mr. Mueller's probe was thorough indeed, but don't expect Democrats to accept his "No collusion" conclusion.  At a minimum, Democrats will scrape "In Mueller We Trust" stickers off their cars and howl at the moon about an official cover-up of his findings.

Of course, the report might leak - all MSM sites have places where anonymous material can be uploaded.  A never-Tumper could give it to Wikileaks, but Mr. Trump's fury at the leaks that damaged him might make potential leakers hesitate.

Another possibility is that the report might be legally released in entirety.  House Republicans voted with the Democrats to ask that the whole thing be published; Mr. Trump has said he's in favor and that he plans to declassify the bogus FISA applications which set the whole thing in motion.  Only the Senate is holding back.  Why shouldn't the report be released?

That depends on what it contains.  If it contains grand jury testimony or national security material as we suspect, releasing it would be a terrible precedent.  National security is no joke - an Iranian nuclear engineer who was mentioned in one of Hillary's leaked emails was executed in Iran.

Democrats wouldn't care about releasing grand jury testimony.  The Smollett case shows that they can protect themselves from prosecution and seal all the evidence in places where they reign.  They expect any charges against their august, well connected selves to get the "down the Hillary memory hole" treatment.

Democrat prosecutors, on the other hand, have a long history of bringing bogus criminal charges, preening for the press, and moving on when the charges turn out unfounded.  Democrats would be happy to release grand jury proceedings when they grill Exxon about climate change or Mr. Trump about his foundation, but what about the Clinton Foundation?

Suppose someone in Arkansas holds a grand jury investigation of the Clinton Foundation.  Would the Democrats want all the juicy tidbits revealed?  Would you want a grand jury investigation that brought no charges against you to be made public?

Closer to home, if the Democrats do let all this protected material out into the public square, what's to prevent Mr. Trump from finding out supposedly secret material about them?  What about the taxpayer-funded slush fund that paid women tax money to keep quiet when they were abused by lawmakers?

Weaponizing the Justice Department can work both ways, and we'd all be the poorer for that.  Democrats don't care - but Mr. Trump might.

Will Offensicht is a staff writer for Scragged.com and an internationally published author by a different name.  Read other Scragged.com articles by Will Offensicht or other articles on Partisanship.
Reader Comments

The only thing worse than an evil government is anarchy? Maybe it's time we take fresh new look at anarchy.

April 3, 2019 6:53 PM

Wow....impressive bit of prose. Lot's of passion in every sentence. Agree that the Progressive Left wants it their way or the highway. Assume they will find a sub paragraph in some random page of the near 400 and WAPO/NYT/MSNBC/CNN/silly web site will ignite. " Trump says he like Russian dressing on his salads"or something.
One issue with obstruction of justice is that it is usually done behind closed doors. Think Nixon telling Dean to deal with the Watergate mess. It took tapes to catch Nixon. It took one of 40MM people on Twitter to "uncover" that Trump thought Mueller was on a witch hunt. Seems like it has gone from the playing field onto the cheer-leading section. I'm sure that's what Barr and Rosenstein thought. Good news for non progressives is that the progressives have one strike with the GND, 2 strikes with Mueller Report, and the 3rd strike with free stuff for all ? Should be fun.

April 3, 2019 7:14 PM

"found nothing untoward on Mr. Trump's part whatsoever"

A team spent 2 years investigating Trump and found no untoward behavior? Yeah, right!

April 10, 2019 7:57 AM

As regards collusion with Russia, which was Mr. Mueller's specific remit - yes, that is exactly right.

As regards unpaid parking tickets or technical violations of campaign-finance law - who knows? But that's none of Mueller's business, and according to the grand jury which found nothing to indict, none of ours either.

April 10, 2019 6:16 PM

We're not alone in believing that Mueller didn't do it right.

Alan Dershowitz: A prosecutor's job is to make decisions, Mueller didn't finish the job


Why couldn’t Special Counsel Robert Mueller, a former Marine, make up his mind about whether President Trump is or is not guilty of obstruction of justice?

The job of a prosecutor is to make decisions. To charge or not to charge. It is not to write law review essays that lay out "on the one hand, on the other hand."

Yet the summary of Mueller’s report on Russia’s interference in our 2016 presidential election that was sent to members of Congress on Sunday by Attorney General William Barr says that Mueller reached no decision as to whether Trump engaged in obstruction of justice.

In law, as in life, there are close cases, about which reasonable people can disagree. But the job of the prosecutor is to decide and close cases.

What Mueller did bears a striking resemblance to what his friend, former FBI Director James Comey, did at the end of the investigation of Hillary Clinton regarding her private email server.

Comey said, as he should have, that he was not going to indict Clinton, but then he went on to say that she had been guilty of being "extremely careless." This – like Mueller's vacillating conclusion about whether President Trump obstructed justice – split the baby in half.

Both decisions gave something for Democrats and Republicans to glom onto.

In the Hillary Clinton case, Democrats emphasized the conclusion not to indict her. Republicans focused on the Comey statement about her being “extremely careless.”

Regarding Mueller’s report – which failed to make a decision on allegations of obstruction of justice by the president – Republicans are joyously welcoming the decision made by Barr and Deputy Attorney Rod Rosenstein not to indict President Trump on obstruction of justice charges.

Some Democratic House members, including Rep. Jerrold Nadler of New York, are declaring the non-exoneration of the president by Mueller as a victory and an invitation to subpoena both Mueller and his evidence.

This is precisely why prosecutors should learn that silence is golden when they've made a decision not to indict. The last thing prosecutors should do is encourage partisan political use of their statements not dealing with charges they do not file.

There is, of course, a difference between Special Counsel Mueller and ordinary prosecutors. Regulations require the special counsel to submit a report to the attorney general. But these regulations do not require the special counsel or the attorney general to make public criticisms of non-indicted subjects of the investigation, or to publicize evidence that was considered in the investigatory process.

The regulations certainly do not require the special counsel to lay out the pro and con arguments and evidence that eventually went into the "no indictment-no exoneration" conclusion.

Attorney General Barr now has a difficult decision to make. It's easy for him to redact classified and privileged material from the Mueller report. But it would gut the Mueller report if Barr decided to redact all information and evidence critical of any individual – including President Trump – who was a subject of Mueller’s investigation. I doubt he will do that, but it would be the right thing.

Alternatively, Barr might give the Trump defense team the opportunity to present its case as to why the president did not obstruct justice. In this way, the public would have an opportunity to test the evidence presented in the Mueller report against evidence and information provided by the Trump defense team.

All of this goes to show why the very institution of special counsel is so problematic. Ordinary prosecutors know the rules and generally play by them. ... special counsel, they make it up as they go along, as Mueller obviously did.

April 21, 2019 4:56 PM
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