In a brief, fork-tongued statement yesterday, the august Robert Mueller got a lot done: he let slip his naked partisanship, jettisoned the bedrock principle of American jurisprudence, ensured that the U.S. government will for the rest of Donald Trump’s first term be paralyzed by bitter factional conflict, and fanned the coals of a smoldering civil war.
Writing at The Hill, Alan Dershowitz — who is, by the way, a lifelong liberal Democrat — had this to say:
Until today, I have defended Mueller against the accusations that he is a partisan. I did not believe that he personally favored either the Democrats or the Republicans, or had a point of view on whether President Trump should be impeached. But I have now changed my mind. By putting his thumb, indeed his elbow, on the scale of justice in favor of impeachment based on obstruction of justice, Mueller has revealed his partisan bias. He also has distorted the critical role of a prosecutor in our justice system.
Virtually everybody agrees that, in the normal case, a prosecutor should never go beyond publicly disclosing that there is insufficient evidence to indict. No responsible prosecutor should ever suggest that the subject of his investigation might indeed be guilty even if there was insufficient evidence or other reasons not to indict. Supporters of Mueller will argue that this is not an ordinary case, that he is not an ordinary prosecutor and that President Trump is not an ordinary subject of an investigation. They are wrong. The rules should not be any different.
Remember that federal investigations by prosecutors, including special counsels, are by their very nature one-sided. They hear only evidence of guilt and not exculpatory evidence. Their witnesses are not subject to the adversarial process. There is no cross examination. The evidence is taken in secret behind the closed doors of a grand jury. For that very reason, prosecutors can only conclude whether there is sufficient evidence to commence a prosecution. They are not in a position to decide whether the subject of the investigation is guilty or is innocent of any crimes.
That determination of guilt or innocence requires a full adversarial trial with a zealous defense attorney, vigorous cross examination, exclusionary rules of evidence and other due process safeguards. Such safeguards were not present in this investigation, and so the suggestion by Mueller that Trump might well be guilty deserves no credence. His statement, so inconsistent with his long history, will be used to partisan advantage by Democrats, especially all those radicals who are seeking impeachment.
No prosecutor should ever say or do anything for the purpose of helping one party or the other. I cannot imagine a plausible reason why Mueller went beyond his report and gratuitously suggested that President Trump might be guilty, except to help Democrats in Congress and to encourage impeachment talk and action. Shame on Mueller for abusing his position of trust and for allowing himself to be used for such partisan advantage.
The Democrats and the media (but I repeat myself) have seized on Mr. Mueller’s carefully buffered implication that the only reason the Special Counsel didn’t recommend charges for obstruction was that Justice Department guidelines prohibit the indictment of a sitting president (this despite the fact that the SC’s job is only to assess the evidence for criminality and let the Attorney General worry about filing charges). But AG William Barr has made clear that he asked Mueller several times whether the SC decision not to recommend charges was based on these guidelines, and was reassured that this was not the case. Moreover, the DOJ and the Special Counsel’s office both signed off on a statement, issued after Mueller’s remarks yesterday, that reinforces this position. From The Hill again:
“The Attorney General has previously stated that the Special Counsel repeatedly affirmed that he was not saying that, but for the [Office of Legal Counsel] opinion, he would have found the President obstructed justice,’ said Justice Department spokeswoman Kerri Kupec and special counsel spokesman Peter Carr in a statement issued Wednesday evening.
“The Special Counsel’s report and his statement today made clear that the office concluded it would not reach a determination ”“ one way or the other ”“ about whether the President committed a crime. There is no conflict between these statements,’ they said.
This is a classic “motte-and-bailey” game. Despite admitting that there is insufficient evidence for charges (the motte), Mueller clearly wants to stain the President with the assumption of guilt (the bailey). You can do this in Scotland, where, in addition to finding a defendant guilty or innocent, the courts also allow a reputation-destroying verdict of “not proven” — but that isn’t how it’s supposed to work over here.