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Mueller’s abject failure to follow the law

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Muellers abject failure to follow the law

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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Democrats

Trump hits Biden on China connections

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Trump hits Biden on China connections

One thing has been made clear by recent events as they pertain to China: They are dying for someone to beat President Trump next November. In many ways, they’re banking on it.

This should make every American, including Democrats, concerned because even more than Russia, China has the capabilities to get in and change the hearts and minds of Americans, hack the 2020 election, and set in motion events that will benefit them. We’re talking about a country with nearly unlimited resources when it comes to cyberwarfare and social engineering. If Russia was ever a real concern to Washington DC, China is the true 800-lb gorilla in the political influence room.

The President called out former Vice President Joe Biden for his and his family’s involvement in China. Speaking to Steve Hilton on the Fox News show, The Next Revolution with Steve Hilton, the President pointed to alarming facts about the frontrunner for the Democratic nomination.

The threat from China is far greater than that from Russia, both economically as well as geopolitically. They have been a stirring giant for years. For the 2020 election, their stirring may turn into game-changing action if we’re not watchful.

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Entertainment and Sports

Game of Thrones Series Finale: Review and Analysis

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Game of Thrones Series Finale Review and Analysis

The ending finally arrive. It was a tumultuous controversial season. The Game of Thrones series finale had to deal with a malcontentious internet fanbase that saw bad writing, but mostly in the wrong places. Indeed the Daenerys fans were unduly upset by her demise, and the Arya and Sansa fans consistently had bad takes. This ending was hardly for these people who wanted happy, predictable, endings that reinforced your “fandom.” Still this episode is where the good writing for the last three or four seasons went to. It was not the dreaded ending of a Republic, which given Tyrion’s voyage to Volantis, was conceivable. The idea was address and ridiculed. Instead it was two kingdoms at peace, at last. The Game of Thrones series finale was well shot, well performed, and strangely well-written(thanks to the cliff-notes of George RR Martin.) The ending was somber. On a scale of Dexter to Breaking Bad, the Game of Thrones series finale lands in the middle, being held back by D&D’s poor ability to get to the final two episodes.

Overall: The episode was a solid ending, given the poor last few seasons.

A Critique of Stalinism

In her speech, Daenerys Targaryen champions how she destroyed the system that oppressed people and made a bold goal to conquer the rest of the known world minus the far east of the continent south of Essos. There’s a lot to tackle from her speech. First, she seems to have a Rashida Tlaib recollection of history. Yes, she freed the Astapori slaves, but it ends horribly for the slaves in her new world. She left Astapor without a garrison, so a butcher took over, being the only one able to wield a blade semi-competently. She then abandons Astapor and the Yunkish coalition destroy the city and the newly freed slaves. who knows what happened to the Mereenese slaves she misruled, but with her dead, it’s a safe assumption they will be vanquished, probably by Volantis. So Daenerys is already rewriting her history, but other than freeing slaves in a world away, she has done nothing to systematically change the way of life for Westeros. She has only deposed Cersei Lannister, which is nothing new for a kingdom that saw Roberts Rebellion. So after giving a fictional account of history she vows to conquer the world, with her brand of liberation. It sounds exactly like Communism. Part of the end goal for communism, as the Soviets saw it was to make every country around them communist, which is what Stalin did during and after World War 2. The idea that a communist government can dissolve and the “people” own everything must come after private ownership everywhere is eliminated, in theory. Of course communism always failed, as does Daenerys. In her final words to Jon, Daenerys talks of removing people who stand in her way and declares herself the supreme authority of what is good. You can almost here the words: “in order to make an omelet, you have to crack a few eggs.” This classic defense of genocide is uttered, in sentiment, by Daenerys in her final words. In the Game of Thrones world, Daenerys was Josef Stalin. Off to the gulag with Tyrion and the other undesirables.

Drogon

Either Jon is good at playing innocent or Drogon knew the Iron Throne was what really killed Daenerys Targaryen. Either way, such moral accountability from a dragon knowing better than his mother. His subsequent escape is one unclosed detail that works really well.

Jon Snow King-Beyond-the-Wall

Jon Snow was sentenced to the Night’s Watch begging the question: why is the order still a thing? Still, Jon Snow is depicted leading the wildlings to the “true North” and the gate behind him is shut. Jon Snow was never cut out for the Night’s Watch, as shown in season one, and he’s killed for disregarding his vows in the books. The implication of Jon being King is made readily apparent.

Bran as King

The leaks told it true. I was extremely weary of this especially since I had Tyrion in mind for the Kingship or I thought the Seven Kingdoms would split. After all, Robert’s strength held them together, and he died in season one. But the Lords were too weak to seize their own kingship. But minus the cringy Edmere Tully return, Tyrion sold it, in large part because of the acting of Peter Dinklage. It was better written than one would have thought. The idea is growing on me personally and contains a lack of predictability Game of Thrones is known for. It also tied up succession nicely while providing a stable outcome a Targaryen dynastic return would not have brought.

Small Council

My biggest point of displeasure from this episode was the small council. Bronn receiving Highgarden and the Lord Paramount title was a sickening end to his character. He should have been killed off years ago. Sam becoming the Grand Maester was a bit of a stretch. Davos as Master of Ships was fitting and Brienne as Lord Commander of the Kingsguard wasn’t too shabby. The scene where she writes down Jaime’s legacy was excellent.

MVP Tyrion

Peter Dinklage gave an award winning performance this episode. I was getting critical of his poor portrayal of the Tyrion character, in large part because of the writing. But in the final two episodes, Peter Dinklage hit a grand slam on his performance. All of the actors did a superb job, but his was by far the best his episode.

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Culture and Religion

We’re losing our culture because faux conservatives aren’t fighting for it!

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Were losing our culture because faux conservatives arent fighting for it

The late, great Andrew Breitbart held firmly to the belief that “Politics is downstream from culture,” and he used that idea to build a platform to battle the left-leaning cultural bias prevalent in Hollywood and the media.

As a conservative, Andrew was also making the point that politics is a reflection of cultural beliefs, and that conservatives were losing the political battle because they were unwilling to fight the cultural battle while the Far-Left was not only fighting it, they were taking no prisoners.

For example, last week the House passed a “bipartisan” pro-LGBT bill that will modify the Civil Rights Act by adding protections for people based on sexual orientation and gender identity. Eight Republicans were unwilling to fight this battle, so they voted for the bill known as the Equality Act.

On a practical level, the Equality Act will be the final nail in the coffin of the First Amendment’s protection of religious freedom and will void the Religious Freedom Restoration Act of 1993, a bill introduced by then-Congressman Chuck Schumer. Ironic, because Chucky apparently no longer holds that view.

Being forced to bake a same-sex wedding cake will be small potatoes compared to what’s in store for religious liberty under this law. According to Douglas Laycock, a pro-LGBT law professor at the University of Virginia and a proponent of federal gay-rights non-discrimination laws, the Equality Act will “crush” religious dissenters.

Trump, the Republican swamp monsters in the Senate, and so-called conservative groups have come out against the Equality Act, but they are doing so purely to stir up the base ahead of the 2020 election. They will be AWOL when it comes to answering the call to arms and will try to hide their pro-LGBT track record until after the election.

In his acceptance speech at the Republican National Convention, Trump promised to “do everything in [his] power to protect LGBTQ citizens,” a promise acted on immediately after he was sworn in. On the advice of Ivanka and Jared, Trump decided to let stand an Obama executive order purportedly issued to protect LGBT employees of government contractors.

Though not tied to a specific policy, Trump recently supported Democrat presidential candidate Pete Buttigieg’s appearance on stage with his “husband.” In a FOX News interview where he was asked about it, Trump responded, “I think that’s something that perhaps some people will have a problem with. I have no problem with it whatsoever. I think it’s good.”

When Ivanka and Jared convinced Daddy to leave Obama’s executive order alone, Mike “Pusillanimous” Pence defended the decision in an interview and bragged about his support of Trump’s embrace of the pro-LGBT agenda.

“I think throughout the campaign, President Trump made it clear that discrimination would have no place in our administration. I mean, he was the very first Republican nominee to mention the LGBTQ community at our Republican National Convention and was applauded for it. And I was there applauding with him”

Pence’s spineless defense isn’t much of a surprise when we remember that the “Christian conservative” caved to the Gay Mafia as governor of Indiana when he personally dismantled that state’s version of the Religious Freedom Restoration Act.

Speaking of Christian conservatives, they’ve been MIA in the culture war. Led by the Fellowship of the Pharisees, evangelicals have become allies with men and women who possess no character. Exchanging the gospel of Jesus Christ for political power and riches, these charlatans have surrendered the moral high ground, creating the culture A.W. Tozer once warned us about:

“Religion today is not transforming people; rather it is being transformed by the people. It is not raising the moral level of society; it is descending to society’s own level and congratulating itself that it has scored a victory because society is smilingly accepting its surrender.”

To put it another way, who cares what a “leader” like Franklin Graham says about the evils of the LGBT agenda when he hypocritically defends the immoral behavior of an evil man in the White House?

It can be argued the culture war began in the 1950s and 1960s. It began with sex without risks or obligations; which led to sex without consequences; which led to destroying heterosexual norms of marriage and relationship; which led to normalizing homosexuality; which led to redefining sex and gender; which led to normalizing transgenderism.

What’s next? Polyamorous relationships involving all “sexual orientations” and multiple spouse “marriages” of the same. Also, the normalization of pedophilia as a “sexual orientation” by groups calling themselves Minor Attracted Persons or MAPs. This group has already created its own LGBT rainbow flag.

This is not hyperbole. The words “sexual orientation” are in the Equality Act. Eventually, these additional groups will be protected under the law because, according to the creators of the legislation, “no American should face discrimination simply because of who they are and who they love.”

We aren’t losing the culture war because we’re being beaten; we’re losing it because faux conservatives aren’t even in the battle.

Originally posted on StridentConservative.com.

 


David Leach is the owner of The Strident Conservative. His daily radio commentary is distributed by the Salem Radio Network and is heard on stations across America.

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