The reason I continue to believe that people are being far too deferential to Robert Mueller, is that his treatment of the other players in the Trump-Russia conspiracy bears no resemblance to how ordinary people are treated in my courts every day on issues of both obstruction AND conspiracy.
Mueller decided not only to stick to the DOJ rule against indicting a sitting president -despite everything that Trump is openly doing to undermine the rule of law – but also to treat Trump, Jr. and Kushner with kid gloves compared to the treatment ordinary people receive in our courts, and then to be silent on that outrageous contrast. Kushner and Trump, Jr. are not, to my knowledge, presidents of the United States.
I understand that Mueller is a stickler and that he carefully explained his standards that viewed as his legal restraints, but even highly intelligent non-lawyers can not be expected to immediately understand or know just how distant Trump’s treatment is from that of everyday people. So let me tell you.
And when when I refer to “treatment” ordinary people receive in our courts, I am referring to two particular things:
1. Prosecutors prove the existence of conspiracies every single day in our courts through circumstantial evidence and through inference and common sense about what they contend had to have been in the minds of conspirators.
So for Mueller to insist that anything short of direct proof of actual knowledge by Trump, Jr. and Kushner of their own criminality at the time of their conduct at Trump Tower is not sufficient to demonstrate a conspiracy, is applying a kid-gloves standard that the rest of us do not get in court; and
2. Every day in our courts prosecutors go forward with cases against people when a case meets a probable cause standard (50%+ likelihood) but it is not clear whether a jury or judge will decide it meets a beyond a reasonable doubt standard.
So even if Mueller has (inexplicably in my view) decided that he’s constrained to slavishly adhere to this internal DOJ rule because of either respect for internal DOJ norms or traditions or because of constraints of the Special Counsel statute with regard to Donald J. Trump, why on earth is he not treating Trump, Jr. and Kushner the way the rest of us would be treated?
Some surprises still may coming in terms of prosecutions, but on balance it appears that Mueller may not have applied his full ability to view his role in full historic context nor lived up to his obligations to our nation and to the preservation of the rule of law against corruption.
Mueller has to have known that he would be played by Barr. He knows him well. He knows of his ‘Job Application Memo’ regarding his wild views of the powers of the president. He knows why Barr was hired. Yet he allowed two years of work to be distorted in the public mind for weeks on end.
Will Mueller surprise us when he testifies? Will he surprise us in the prosecution cases that have been farmed out to other federal prosecution offices?
Time will tell. It’s not over. But it does not look good from the perspective of one lowly defense lawyer who is familiar with how corruption works around the world.