What I see every day in the criminal courts bears no resemblance whatsoever to the kid-gloves treatment Donald Trump just got from Robert Mueller.
I’ve watched someone in a district court have their arm figuratively torn from its socket to force them to plead guilty to conspiracy lest they risk losing their apartment and their family. The level of evidence available to the government in that case was a joke compared to the endless bizarre meetings with Russian spies and bizarre goings-on we all witnessed with Russians during our last election, as listed via the link below.
I’m not going to be lectured by pundits who want us to ignore the evidence we’ve seen in broad daylight from 2015 through today of this ‘president’s’ weird ties to Russian government spy agencies and Putin’s various mafia arms. See Greg Olear’s unparalleled devastating fast and dirty compendium of now-confirmed Trump-Russia collusion ties.
If you are wealthy and powerful in this country, you get a gentler form of justice imposed on you by our government than if you are an ordinary person.
The motto over the United States Supreme Court building is “Equal Justice Under Law”.
What we are witnessing with the obviously biased Attorney General of the United States shamelessly covering up for this president, demonstrates yet again how very far we are from living up to that creed.
As I detail below, Mueller’s final referral decision is a perfect example of how when you are rich in America, different standards of legal proof apply to you.
Heretofore an American hero or not, Mueller’s refusal to recommend prosecution of these people for conspiracy to collude with a foreign power is utterly disgusting when put in the context of what ordinary poor people face every day in our courts.
Mueller had three essential tasks:
A. Conduct a counter intelligence investigation to determine what happened,
B. Decide whether any criminal prosecutions should result, and
C. Provide a clear accounting of what happened so that policymakers, from Congress to the executive branch, can take steps to keep these things from happening again.
With regard to the task of determining whether criminal cases should result from his investigation, as in all criminal prosecutions there are three levels of proof that play into this inquiry:
1. PROBABLE CAUSE
This is the legal standard that is lowest and easiest to meet. This standard is used to decide whether an indictment or criminal complaint can issue. Roughly speaking, and in lay terms, it means
IT IS MORE LIKELY THAN NOT (50%+) that a defendant committed acts that meet the elements of a crime. Considering what is a matter of public knowledge alone about collusion, including endless lies from Trump and his minions regarding Russia contacts, other guilty pleas, convictions, and other obviously non-coincidental contacts with Russians tied to Russian spy agencies and Putin, this standard was almost certainly met here.
2. CLEAR AND CONVINCING EVIDENCE
“Clear and convincing” evidence is an intermediate standard that is used, for example, in certain probation violations. This standard means that there is a roughly 70% likelihood that something occurred. We will find out (if we ever get the report) whether that standard was met.
3. PROOF BEYOND A REASONABLE DOUBT
This is the standard Mueller relied on here, according to reports. Beyond a reasonable doubt is the standard for determining guilt at an actual criminal trial in this country. It is difficult to put a number to it (and, in fact, courts do not put a number to it), but in lay terms it probably means upwards of a 95% likelihood that something occurred.
Please understand. Every day in the criminal courts of our country, cases are pursued where the prosecutors know damned well that they are unlikely to be ultimately able to prove their case beyond a reasonable doubt.
But they let people languish and suffer mentally for the duration of cases – only dismissing many cases on the day of trial. (In some cases the prosecutors are waiting in good faith to see if the evidence materializes.)
The fraud sitting in the White House will not have to endure that hell because of this special treatment he’s getting in his conspiracy investigation. He faces no such clinging to the probable cause standard by HIS prosectors. No indictments recommended.
That’s right. Despite Individual #1 being an unindicted co-conspirator with Michael Cohen, despite all the contacts with Russians having intelligence agency ties, despite the endless lies about the topic, unlike what happens every single day in the district courts of America, here there was no such reliance on the probable cause guard rail to pursue a conspiracy case against Individual #1.
And what about an obstruction of justice case against Trump? Did The prosecutor in this matter make a clear decision to recommend that Trump be held accountable?
No. Far from it.
What happened in Individual #1’s obstruction case instead? For this particular target, Trump – and apparently his children as well – his case has been thrown back by Mueller to an explicitly biased party, Attorney General Barr, to make the call on whether to pursue an obstruction case.
Barr, who deep-sixed a problem for H.W. Bush years ago, and who even wrote an article recently saying that presidents should not be charged with obstruction of justice, is clearly not a neutral arbiter. Yet Mueller unwisely and inexcusably, passed the buck to this man. I do not call that “Mueller doing his duty” to pursue equal justice under law.
I call it a disgrace.
AS FORMER FEDERAL PROSECUTOR JOYCE ALENE REMINDS US, THE WHOLE POINT OF APPOINTING THE SPECIAL COUNSEL IN THE CRIMINAL CONTEXT IN THE FIRST PLACE WAS TO DISTANCE THAT DECISION FROM THE PRESIDENT.
As for obstruction and myriad other crimes of financial fraud, we will have to see how they play out in the state courts, where – so far, a president has no power to pardon.