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.
I think the most important factor here is that Mr. Mueller has clearly and explicitly stated that he will not carry water for the Congress. The job of proving obstruction and conspiracy is for Congress, not DoJ.
The wealthy and uber wealthy and their family and friends are always treated gently. Do you think that any of us could do what Robert Kraft did and not already be in jail?
I’m becoming nauseated by the abject refusal of DEMOCRATIC party leadership to do its constitutional duty. Some Democrats are openly asserting that the most importation priority now is to win the 2020 presidential election. WRONG. Treason, high crimes, and misdemeanors are a higher priority than winning an election. Now that we are jettisoning the rule of law and establishing that a sitting president is above the law, what might we win in 2020?
Ms. Pelosi already led the way towards normalizing crimes against humanity when, as Speaker, a Democratic majority in the House refused to even investigate compelling evidence of torture, kidnapping, murder, and similar abuses ordered by the George W. Bush administration in 2006. Now she leads the way towards ignoring flagrant and obvious treason, obstruction of justice, corruption, and similar impeachable offenses by the Donald Trump administration.
The problem here is NOT Mr. Mueller or Mr. Barr.
The problem here is the moral and ethical cowardice of our own Democratic leadership and party.
I have to say, the “refusal to exonerate” is going to be one of those head-scratchers for history … what was that supposed to be? As either a legal or a political signal?
I have so many questions.
I join CNN’s Jeff Toobin in finding the following sentence an unmistakable invitation to Congress to do its constitutional duty:
The burden is squarely upon Congress. There is more than probable cause to believe that Mr. Trump obstructed justice and exercised the powers of his office corruptly.
The question is whether or not our Democratic majority will do its constitutional duty.
If I have to choose I think I prefer the Mueller approach to the Starr approach of spending countless millions to find something – anything – to stick to the President in a way that no ordinary citizen would be subjected to. The Constitution doesn’t come right out and say you can’t indict a sitting President, but I think the strong implication is that the Framers assumed that Congress would impeach first, then once removed the now ex-President could be indicted.
Agreed.
It needs to be said, though, that the Mueller approach only works when Congress is willing to perform its constitutional duties.
I find the arguments in a 2017 Smithsonian Magazine piece to be persuasive (emphasis mine):
Let’s see the replay on that last one:
Without that phrase, which explained what constitutes “high crimes,” many Americans came to believe that “high crimes” literally meant only crimes identified in criminal law.
This is a KEY reason why Congress must begin impeachment hearings, a reason I find more important than the concern about indicting a sitting President.
The impeachment language has always been intended to provide a mechanism for CONGRESS to remove an executive who is acting against the best interests of the United States — whether or not those actions are explicitly identified in criminal law.
The removal of Mr. Trump is a matter for Congress, not DoJ, not Mr. Mueller, not Mr. Barr.
Or as Ben Franklin is more succinctly quoted, “The President must be impeachable; otherwise he might be assassinated.”
I read the Mueller report yesterday (except that I have not gotten to the appendices), and my impression is that his office did their homework and laid out concisely what their standards were and let the facts speak for themselves. There were several instances where the report seemed to clearly imply that the ball was now in Congress’s court and even if they could not establish direct connections I lost count of Trump’s “Will no-one rid me of this turbulent priest” moments.
Mueller did his job and did it admirably. The people who did not do their job were the Congressional Democrats, Never Trump Republicans, and cable news hosts who made Mueller out to be the savior of the republic and presumed that collusion was the inevitable conclusion of the report. Barr then had an opportunity to make a sweeping conclusion of exoneration swallows by slow walking the real report and redacting anything harmful. This should never have been allowed and he should never have been confirmed.
The real irony of the Mueller Report as I read it, is that Trump himself did not break any laws when playing footsie with the Russians. In all likelihood he was an imbecile whom they happened to assist to hurt the more reliably anti-Russia Hillary. It’s quite possible their agents would’ve done something similar for a dove like Bernie against a hawk like Rubio without Bernie knowing about it. Here Trump asked for more coordination in such a ham handed off the cuff way that he avoided breaking the law. Where he did break the law was in firing Comey and instructing all his underlings to lie and impede the investigation. It is highly probable that this does count as obstruction of justice, but there are not enough votes in the Senate to remove him from office. So what’s the point in pursuing that avenue?
Far better to pursue a classic strategy of going after the people on the bottom to get the people on the top. Going after the Kushners on clearance violations, after Don Jr for financial irregularities, going after Trump for his violations of state law in NY. Going after his tax returns (which I bet he’s hiding since they show how poor he really was in comparison to his boasts). Also going after Russia and it’s agents to defend the 2020 election. These are worth pursuing.
I’m agnostic on impeachment as a discovery tactic-it might work and I trust Nadler to use it as such. If the goal is to remove Trump from office than the best means remains flipping MI, WI, and PA back to blue.
I’ve concluded that rather than writing his own summary, Barr should have just released the executive summaries of the two volumes that Mueller’s office wrote themselves while he considered redactions.