Special Counsel Mueller’s report has been subjected to a wide variety of interpretations designed to support the political opinions of the interpreter. Thus, we have Trump’s “Completely Vindicated!” claim and Democrat assertions that the “real truth is in the redactions.” On the issue of collusion, coordination, or conspiracy, we may definitively state that there wasn’t any. In fact, the Russians tried, and were shut down by the Trump campaign. In Mueller’s own words,
“The special counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in these efforts, despite multiple offers from Russian-affiliated individuals to assist the Trump campaign.”
That leaves us with the obstruction of justice argument. There, the waters get muddier. Many commenters on the Right have strongly insinuated that Mueller created his report specifically to establish a roadmap for impeachment. By regulation, all he had to say for Volume 1 was the quote above. Volume 2 is a much more complicated story.
There is a legal debate as to whether obstruction of justice statutes even apply to the President. Under what is known as the “Clear Statement Rule,” if any part of the President’s actions bear on his responsibilities under Article II of the Constitution, then he cannot be held criminally liable for them. That doesn’t mean that they aren’t bad, evil, or impeachable. The grounds for impeachment are “Treason, Bribery, or other high Crimes and Misdemeanors.” This expansive term of art clearly allows the removal of the President for any act that the House and Senate agree is far enough outside the pale. Those actions do not have to be criminal.
It is clear that Mueller did not consult with the Office of Legal Counsel as required under §600.7 of Title 28. The “established practices” of the OLC “are supposed to be binding under the special counsel regulations.” His failure to consult with the OLC “suppressed standard legal doctrine and engaged in novel legal moves in order to hold open the possibility that all 10 of the events he analyzed might have been crimes.” In other words, Mueller wrote a report that in essence said, “I don’t like what he did. I can’t quite make it into a crime, so I’ll dump it out there to create a roadmap for impeachment.” In short, he did exactly what James Comey did in his famous July 5, 2016 press conference about Hillary Clinton’s emails. He violated every canon of DOJ behavior to smear Trump by refusing to say that he did not find a prosecutable case of obstruction.
The bigger problem with this approach is that it screws up the law for future Presidents. Unless the DOJ OLC issues an opinion contradicting Mueller’s bastardization of the law, every future President will labor under a cloud that every action he takes will be scrutinized under an impossible legal standard. As Justice Robert Jackson said (emphasis added),
“The opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power’s validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant.”
What Mueller should have done is to consult with the OLC, realize that he had no case for obstruction, and abandoned his inquiry as soon as he realized that there was no case for Russian Collusion. Since this was probably the circumstance in early autumn of 2017, we have a clear case of a Special Counsel with nothing to do, who then used the elastic language of his commission to continue for an extended period. In doing so, he kept the collusion narrative alive, most likely leading to a number of Republican seats in the House flipping to Democrat. It’s even possible that the Arizona senate seat won by Kristen Sinema might not have turned blue. Further, by then plowing ahead with an obstruction investigation contrary to OLC rules and in violation of Title 28 §600.7, he then promoted a further stain on our President.
We can agree that Donald Trump doesn’t behave in the dignified way we’d like. But “Orange Man Bad” memes are not a proper way to deal with either the office or its occupant. When you are charged with a legal investigation, you must deal with the law. Period. Further, Robert Mueller was charged with making a prosecutorial decision. Either Trump should be charged, or he should not be. To fail to reach that level of clarity is a dereliction of duty for which we must ask, “Why?”
We find ourselves wondering why he did not simply say, “We found no proof that President Trump obstructed justice.” Added to the prior short paragraph, we’d have a one-page report that could be released in full without redactions. And that would be the proper report, since no criminal charges were prepared against anyone. Instead, we get over four hundred pages created over the Attorney General’s objections with Grand Jury materials included. Those have to be blacked out, since they cannot legally be published. And that lets the Democrats scream about what’s hidden.
In short, Robert Mueller crafted his investigation and report in a way that is designed to create suspicion about the President. This can only serve to harm the President, rather than clearing the air as he was supposed to do. And it forces us to consider the incidents about which he refuses to reach a conclusion.
- Asking Comey to not prosecute Michael Flynn
According to James Comey, the President said, “I hope you can see your way to letting this go.” That’s an aspirational statement. To paraphrase, Trump said, “Flynn’s a good guy. Do you really need to prosecute him?” There’s no evidence that Trump followed up with an order to stop. But if he had, that clearly would have been within his Article II powers as the President. No obstruction is possible.
- Trump was angry at Sessions’ recusal from the Russia probe
- Trump’s reason for firing Comey wasn’t clear.
- Trump called the appointment of the Special Counsel “the end of his presidency.”
- Trump asked Corey Lewandowski to arrange public announcements that the Special Counsel investigation was “very unfair” to the President.
These are a major “So whats?” There’s no obstruction in being angry. And if Trump were to fire Sessions over his recusal, that’s his Constitutional authority. The AG serves “at the pleasure of the President” under Article II. Trump could also fire Comey for any reason or no reason at all under the same authority. And the Special Counsel investigation would act as a block to many things Trump wanted to get done.
- Trump asked Comey and others to publicly declare that Trump was not involved with Russian election interference.
Trump didn’t have any involvement with Russia, and Comey knew it. But Comey declined to say anything because he was involved in an illicit investigation to try to hang Trump. Had Trump ordered him to make the statement, Comey would have been faced with a choice to issue it or resign, since Trump was Comey’s boss. Comey did neither, and Trump stood pat, frustrated. Frustration is not obstruction.
- Trump told the White House Counsel to have the Deputy AG fire Robert Mueller.
Since the investigation was not a criminal investigation, it is very difficult to twist this into obstruction, particularly since the President’s reason was that Mueller had multiple conflicts of interest. This would be the proper way to deal with the conflicts. A new SC would be appointed, presumably without the conflicts. Trump’s later request for the WHC to change his story came after the WHC had been interviewed by Mueller, and was rejected. But we must recall that, as the Chief Executive, Trump had the Constitutional right and authority to shut Mueller down any time he wanted, for any reason or no reason. That could not be obstruction.
The President refused to rule out pardons for Flynn, Manafort, and others. This isn’t obstruction. Rather, it’s the way Donald Trump lives. He operates from “strategic ambiguity,” forcing others to make decisions. This often creates opportunities for him. We’ve seen it in foreign policy and trade negotiations. Not once did he say, “If you say this or that, I’ll give you a pardon.” Any story to the contrary is a manufactured lie.
The only incident that did not have to do with Article II powers was the famous Trump Tower meeting with Donald Trump Jr. Whether the President knew about the meeting ahead of time is meaningless. What is meaningful is that Mueller knew that Russian lawyer Natalia Veselnitskaya met before and after the Trump Tower meeting with Glenn Simpson at Fusion GPS. It was a setup, and DT Jr didn’t fall for it.
After this long litany of nothing-burgers, we should be able to see that Robert Mueller had a very easy call to make. There was no chargeable obstruction in any action by Donald Trump. Period. Yet he refused to make this call, even though it was his job to make it. He was derelict in his duty, both in this failure and in the creation of a legal standard contrary to the DOJ legal counsel’s standard.
As Attorney General Barr moves forward, it will be interesting to see how much of Mueller’s work was dedicated to harming the President rather than bolstering the rule of law.
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