Robert Mueller Is A Villain

No, I didn't make that up, although I wish I had. That's a line from Will Chamberlain: HIT JOB: How Robert Mueller continues to smear President Trump with baseless obstruction of justice claims. And it's true. He's a villain and an arrogant one to boot.

So, let's walk through Mueller's statement--at least in pertinent part.

For starters, Sean Davis (whom I'll quote again later: Mueller Just Proved His Entire Operation Was A Political Hit Job That Trampled The Rule Of Law) makes the perfect observation:

If there were any doubts about Special Counsel Robert Mueller’s political intentions, his unprecedented press conference on Wednesday should put them all to rest. As he made abundantly clear during his doddering reading of a prepared statement which repeatedly contradicted itself, Mueller had no interest in the equal application of the rule law. He gave the game, and his nakedly political intentions, away repeatedly throughout his statement. 

“It is important that the office’s written work speak for itself,” Mueller said, referring to his office’s 448-page report. Mueller’s report was released to the public by Attorney General William Barr nearly six weeks ago. The entire report, minus limited redactions required by law, has been publicly available, pored through, and dissected. Its contents have been discussed ad nauseum in print and on television. The report has been speaking for itself since April 18, when it was released. 

If it’s important for the work to speak for itself, then why did Mueller schedule a press conference in which he would speak for it weeks after it was released? The statement, given the venue in which it was provided, is self-refuting.

Bingo! However, we should also keep clearly in mind that Mueller's "political intentions"--the removal of President Trump from office--are in the service of the Deep State, which sees Trump as an existential threat to their rule of the United States. Mueller is first and foremost a servant of the Deep State and that is what's behind this (surprisingly inept) statement.

As far as substance goes, Mueller begins by attempting to throw dust in our eyes, offering his version of the Russia Hoax grand conspiracy theory: that Russia launched what he calls a "concerted attack on our political system" by hacking the Clinton campaign and releasing information through Wikileaks:

As alleged by the grand jury in an indictment, Russian intelligence officers who are part of the Russian military launched a concerted attack on our political system. 

The indictment alleges that they used sophisticated cyber techniques to hack into computers and networks used by the Clinton campaign. They stole private information and then released that information through fake online identities and through the organization Wikileaks. The releases were designed and timed to interfere with our election and to damage a presidential candidate. And at the same time as the grand jury alleged in a separate indictment, a private Russian entity engaged in a social media operation, where Russian citizens posed as Americans in order to influence an election. 

These indictments contain allegations and we are not commenting on the guilt or the innocence of any specific defendant. Every defendant is presumed innocent unless and until proven guilty.

I think we all know the problem with this. These are, indeed, allegations that are contained in indictments, but crucially the indictments do not require that these allegations be proved as facts in order to prove the crimes that was charged in the indictments. These "allegations" are simply part of the "narrative" contained as background in the indictments. Team Mueller did not, in fact, conduct investigation that proved these allegations--that the Russian military provided "hacked" information to Wikileaks. These allegations are, in fact, assumptions. Or, if you prefer "narrative." Importantly, these allegations are disputed by prominent experts in the field such as William Binney. But you'll never hear that from "Bob" Mueller.

Having engaged in some preliminary obfuscation, Mueller gets to the heart of the matter: obstruction and his inability to "exonerate" President Trump. And he starts it off with what is supposed to be his conclusion:

And as set forth in the report, after that investigation, if we had had confidence that the president clearly did not commit a crime, we would have said so. We did not, however, make a determination as to whether the president did commit a crime.

The first part,

if we had had confidence that the president clearly did not commit a crime, we would have said so

is purely gratuitous. It is never a prosecutor's job to prove a negative--an impossible task to begin with. As Special Counsel, Mueller was a DoJ prosecutor. His job was to reach a conclusion as to whether there was sufficient evidence to charge a crime or whether there was not. In fact, the DoJ regulations that govern Special Counsel investigations specifically require that the Special Counsel report his decisions to prosecute or not to prosecute to the Attorney General:

At the conclusion of the Special Counsel's work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel. 28 CFR 600.8(c)

Mueller, villainously, attempted to sidestep that responsibility. He makes the claim that he could not fulfill that responsibility because DoJ policy is that a sitting president cannot be indicted--"formally accused."

First, [DoJ policy] permits the investigation of a sitting president, because it is important to preserve evidence while memories are fresh and documents available. Among other things, that evidence could be used if there were co-conspirators who could be charged now. 

And second, the [DoJ policy] says that the constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing. 

And beyond department policy, we were guided by principles of fairness. It would be unfair to potentially — it would be unfair to potentially accuse somebody of a crime when there can be no court resolution of the actual charge.

In fact, however, Mueller was charged with providing the Attorney General with his report and in that report he could have discussed whether the evidence he had gathered regarding obstruction reached the level of a chargeable offense. At that point the decision would be up to the Attorney General. Instead, Mueller claims that the only fair thing to do is to offer no opinion unless the negative can be proved, while offering a separate volume that is a critique of the President's conduct. Sean Davis, again, captures the dishonesty inherent in this approach:

Referring to indictments against various Russian individuals and institutions for allegedly hacking American servers during the 2016 election, Mueller said that ...

“Every defendant is presumed innocent unless and until proven guilty.” 

Had he stopped there, he would have been correct. But then he crafted a brand new standard. 

“The order appointing the special counsel authorized us to investigate actions that could obstruct the investigation. We conducted that investigation and kept the office of the acting attorney general apprised of our work,” Mueller said. “After that investigation, if we had confidence that the president clearly did not commit a crime, we would have said so.” 

According to Mueller and his team, charged Russians are presumed innocent. An American president, however, is presumed guilty unless and until Mueller’s team determines he is innocent. Such a standard is an obscene abomination against the rule of law, one that would never be committed by independent attorneys who place a fidelity to their oaths and impartial enforcement of the law ahead of their political motivations. 

The contradictions and double standards didn’t stop there, though. 

“It would be unfair to potentially accuse somebody of a crime when there can be no court resolution of the actual charge,” Mueller said, after all but stating that Trump committed a crime for which he was never charged by Mueller. Just as Mueller’s own words and actions at the Wednesday press conference prove that he didn’t want his team’s report to speak for itself, the report itself proves that Mueller and his team don’t believe it’s unfair to accuse somebody of something which a court cannot resolve.

However, Barr himself gives the lie to Mueller. In his meeting with Mueller, Barr urged him to provide an opinion--DoJ policy may forbid an indictment, but it does not forbid offering an opinion. Note in the following account that Barr is not alone--he's joined by Rod Rosenstein. This is undoubtedly why Mueller is now in no position to complain about anything Barr said or did--which speaks volumes about how far Barr trusted Mueller:

Barr, in testimony to the Senate Judiciary Committee, said that he and the Justice Department's No. 2 official, Deputy Attorney General Rod Rosenstein, met with Mueller as early as March 5 to discuss the findings of the special counsel's probe, which was nearing its conclusion after nearly two years. 

... 

At the March 5 meeting, Mueller indicated that he and his team of more than a dozen prosecutors would not bring charges against the president for obstruction – but they wouldn't exonerate him.

"We were frankly surprised that they were not going to reach a decision on obstruction, and we asked them a lot on the reasoning behind this and the basis for this," Barr testified. "We did not understand exactly why the special counsel was not reaching a decision, and when we pressed him on it, he said that his team was still formulating the explanation."

Understand what's going on here. Barr is Mueller's boss. He's asking Mueller to do his job as a prosecutor, and Mueller is declining to do so. Under close questioning from Barr and Rosenstein, Mueller then makes a significant statement. In the meeting with Mueller the OLC opinion, which states that a sitting president cannot be indicted was discussed. In other words, in trying to understand why Mueller was refusing to reach a decision on the sufficiency of the evidence for obstruction, Barr asks Mueller whether Mueller is influenced by that OLC opinion--and Mueller emphatically responds in the negative:

Barr, in his testimony to the Senate panel, said that the Office of Legal Counsel's opinion came up in his March 5 meeting with Mueller: "Special Counsel Mueller stated three times to us in that meeting, in response to our questioning, that he emphatically was not saying, but-for the OLC opinion, he would've found obstruction," Barr testified.

Again, to paraphrase: Mueller three times stated that his refusal to offer an opinion was not influenced by the very OLC opinion that Mueller today cited in his statement. Again, that "three times" indicates how far Barr was willing to trust "Bob" Mueller--Barr and Rosenstein were counting, keeping a list. But what emerges is very clear. Barr clearly pressed Mueller to offer a prosecutive opinion--indictment was a different matter. Mueller refused to do so and continued to refuse an opinion today:

... we concluded that we would not reach a determination one way or the other about whether the president committed a crime. That is the office’s final position and we will not comment on any other conclusions or hypotheticals about the president.

And that's why Barr did reach a determination--because the evidence was clear.

Does any of this make sense? Well, yes, but only if you accept that Mueller is a snake. It seems clear that the reason Mueller refused to offer an opinion but then refused to be tied down to any clear reasoning--claiming instead that they were still busy writing up the evidence--is that he didn't want to give away to Barr that they were writing up an obstruction theory that was legally inadmissable. That means Mueller wanted to present Barr with a completed report, a fait accompli, and force Barr to redact it. This explains why Mueller tried to force Barr into releasing the executive summaries: Barr would have been forced to either publicly release the offending legal theory or redact it. But Barr was too smart for that. Barr sent a letter to Congress providing the principle conclusions of the investigation--including the opinion of the top officials at DoJ that the evidence in the Mueller Dossier did not fulfill the elements of the crime of obstruction. Mueller's ploy was thwarted.

To finish up, I'd like to offer some excerpts from Jack Goldsmith's reflections on Barr's decision making, as I have in the past. As usual, I offer the caveat that Goldsmith, currently a Harvard Law professor but also a lawyer with a huge amount of experience in this field, is anything but a Trump fan. With that in mind, regarding Barr's handling of the Mueller Dossier, Goldsmith writes:

I think Mueller made a mistake, one that diminishes the perception of his independence and the credibility of his report, in failing to make a prosecutorial judgment one way or the other on obstruction, and especially in his extra-prosecutorial insistence that he was not “exonerating” the president. (Mueller opened himself up to this powerful rebuttal from the president’s special counsel, Emmet Flood.) Mueller’s action seems inconsistent with what the regulations tried to accomplish, which was to prevent extra-prosecutorial editorializing. In effect Mueller made an impeachment referral that the regulations do not contemplate, though he followed the regulations in leaving it to Barr to make the report public, which he knew Barr had pledged to do. 

... 

First, Barr believes that the Justice Department’s job in this context is to decide (as he told Sen. Richard Blumenthal) “whether or not there is a crime” and nothing more. That is what the special counsel regulations and Justice Department traditions counsel as well. This is why Barr objected to Mueller’s strange in-between decision “not to make a traditional prosecutorial judgment.” No U.S. attorney would ever do that, and Barr clearly thinks it odd, and probably wrong, that Mueller did that. Whether one thinks Barr is right or wrong (I think he’s right), this is a perfectly respectable judgment for an attorney general to make.

I find it significant that Goldsmith--who never seems to have harsh words for anyone but Trump--should come right out and state that Mueller's refusal to make a prosecutorial judgment diminishes his credibility. His point that Mueller's refusal, in fact, undercut the intention of the regulations, which was to prevent the Special Counsel from being used for partisan political purposes, is well taken and undoubtedly historically accurate. Further, Goldsmith, by his characterization of Emmet Flood's "rebuttal" clearly sees merit in what Flood wrote to the AG, which included passages such as this:

Prosecutors simply are not in the business of establishing innocence, any more than they are in the business of "exonerating" investigated persons. In the American justice system, innocence is presumed; there is never any need for prosecutors to "conclusively determine" it. Nor is there any place for such a determination. Our country would be a very different (and very dangerous) place if prosecutors applied the SCO standard and citizens were obliged to prove "conclusively . . . that no criminal conduct occurred." 

Because they do not belong to our criminal justice vocabulary, the inverted-proof-standard and "exoneration" statements can be understood only as political statements, issuing from persons (federal prosecutors) who in our system of government are expected never to be political in the performance of their duties. The inverted burden of proof knowingly embedded in the conclusion shows that the Special Counsel and his staff failed in their duty to act as prosecutors and only as prosecutors. 

Second, and equally importantly: ln closing its investigation, the SCO had only one job -- to "provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel." 28 CFR. 600.8(c). Yet the one thing the SCO was obligated to do is the very thing the SCO intentionally and unapologetically refused to do. The SCO made neither a prosecution decision not a declination decision on the obstruction question. Instead, it transmitted a 182-page discussion of raw evidentiary material combined with its own inconclusive observations on the arguable legal significance of the gathered content. As a result, none of the Report's Volume II complied with the obligation imposed by the governing regulation to "explain[] the prosecution or declination decisions reached."

Goldsmith has recently weighed in on the obstruction issue in a lengthy two part article: The Mueller Report’s Weak Statutory Interpretation Analysis and Part II. The article is long and the argumentation somewhat complex (as Goldsmith acknowledges at the start), but the concluding "speculative" paragraphs bear out my own view of why Mueller proceeded as he did, refusing to perform his job as Special Counsel as regards obstruction. However, to set the background for the concluding "speculation," I'll quote from Goldsmith's introductory paragraphs. I'm sure he'd object to my editing--recall, he is essentially a NeverTrumper and a card carrying apologist for the Deep State--but they are his words and, while the context is not as full as he might like, I believe the editing is fair for our purposes.

Goldsmith begins by recounting that he received an inquiry via Twitter and that this was the response he was tempted to make:

I was inclined to respond: “The statutory interpretation analysis in the Mueller report is one-sided and weak.” I instead decided to try to explain why I believe this, knowing full well that it will infuriate the vast majority of legal elites who are convinced that the only things preventing President Trump from going to trial today are the Office of Legal Counsel’s ruling that a sitting president cannot be indicted and Attorney General William Barr’s “lack of inner strength.”

He then continues:

Before I explain what I see as the legal flaws in Special Counsel Robert Mueller’s report, I want to stipulate that Trump did some very bad (not to mention stupid) things ... I have little trouble concluding that Trump committed impeachable offenses, should Congress want to pursue that option. 

What I am not sure of is that Trump committed a crime. Indeed, I am pretty sure that many of the 10 events outlined in Volume II of the Mueller report could not even theoretically be crimes under the obstruction statutes as they are currently written. ... 

To commit a crime, Trump had to violate a provision of the U.S. Code that applied to him. There are many obstruction of justice statutes. Generalizing a bit, they make it a crime for “whoever” commits an obstructive act, with a nexus to an official proceeding, and with a corrupt intent. One might think that “whoever” includes Trump. But two high hurdles must be overcome before reaching that conclusion. First is the constitutionally based clear statement rule that determines whether the obstruction statutes, despite their broad general language, actually apply to the president. And second, if the statutes are properly read to apply the president, one must do constitutional “balancing” to determine if Congress has the power to so burden the president.

The Mueller report addressed both issues. I focus here on the first: the clear statement rule. To my amazement, the great lawyers who wrote the report botched the analysis ...

OK, Goldsmith is a NeverTrumper. He thinks it's arguably OK for the Deep State to run a hoax to set up and remove a duly elected president. Really. Nevertheless, his explanation for why Mueller did what he did is worthwhile--all the way at the end of Part II:

One reason for Mueller’s decision not to make a traditional prosecutorial decision was that it prevented Barr from having a procedural context in which to exercise his power under the regulations to overrule Mueller’s legal analysis. As I stated in my last post: “One underappreciated consequence of the special counsel’s unusual decision not to make ‘a traditional prosecution or declination’ was that it allowed him to make damning insinuations about the criminality of the president’s behavior without taking an ‘investigative or prosecutorial step’ which, under Section 600.7 of the special counsel regulations, would have permitted the attorney general to review the step, identify its faulty legal basis and determine that ‘it should not be pursued.’”

My conclusion? Mueller refused his duty. He's also a villain, who put the country through two years of divisive trauma based on an investigation that he knew was baseless. If you're interested in why Goldsmith might defend that abuse of the legal system, here's a long discussion.