Special counsel Robert Mueller claims correctly that a traditional prosecution or declination decision is a binary choice — to prosecute or not to prosecute. Mueller was able to make a decision regarding collusion, so why couldn’t he make one regarding obstruction? He claims he couldn’t because the Office of Legal Counsel had previously opined that a sitting president cannot be indicted; he also claims it would be unfair to accuse the president of committing a crime without indicting him and thus denying him the right to defend himself in court to clear his name.
Then why did Mueller spend millions of taxpayer dollars investigating the president for obstruction when he wouldn’t indict him for it anyway?
Mueller claims he was creating and preserving a record for the future, perhaps when Trump is no longer president and thus can be indicted. But he also wrote that he was concerned that indicting Trump would, “preempt constitutional processes for addressing presidential misconduct.” What does he mean? Read his footnote; he means impeachment. So, Mueller didn’t charge obstruction because he didn’t want to preempt the Democrats’ impeachment plans.
Instead of performing his duty as a prosecutor, Mueller was creating a roadmap to impeachment. Mueller made a political decision, not a legal one. He was appointed to investigate any coordination between the Trump campaign and the Russian government to interfere in the 2016 presidential election. He was authorized to prosecute any federal crimes arising from his investigation. He admitted there was no evidence of collusion, conspiracy or even the made-up crime called, “coordination.” Yet on corruption, instead of reaching the obvious and same conclusion, he deferred to Congress.
But Mueller is a prosecutor, not a member of Congress. His job is to enforce the criminal code, not to facilitate impeachment.
Where Mueller played the politician, Attorney General William Barr played the prosecutor. Barr determined the evidence established by Mueller was insufficient to establish an obstruction of justice charge. In reaching that decision, Barr based his conclusion on the evidence, which is what prosecutors are supposed to do. Barr even examined the evidence using Mueller’s unconventional legal theory that a person can be charged with obstruction for carrying out his lawful duties, and still found none.
Mueller, on the other hand, laid out the “factual issues” that he believes could support an obstruction charge: “public attacks on the investigation, non-public efforts to control it, and efforts in both public and private to encourage witnesses not to cooperate with the investigation.” First, public criticism cannot constitute obstruction; the president, like any American, has the First Amendment right to criticize the government, including the agents who prosecute him. Even if one disregards the Constitution, the facts reveal that although the president criticized the investigation, he did nothing to hinder it.
Second, the president has the constitutional duty to take care that the laws are faithfully executed; that duty includes efforts to control any federal investigation. And whether he acknowledges it or not, the special counsel ultimately works under the president.
Again, if one disregards the Constitution and examines just the facts one reaches that same conclusion; there was no evidence that the president actually “controlled” the investigation. The evidence reveals the opposite. Mueller reports that Trump wanted him removed for a “conflict of interest.” Well, he wasn’t; he wasn’t even asked. Mueller reports that Trump wanted then-Attorney General Jeff Sessions to “un-recuse” himself. Well, he didn’t. And, the president’s response, “I’m not going to do anything or direct you to do anything. I just want to be treated fairly.”
The third “factual issue” is the only one that could possibly be in the realm of obstruction of justice. But, upon examination of the facts, not Mueller’s characterization of them, there is no there, there. Mueller claims Trump made, “efforts in both public and private to encourage witnesses not to cooperate with the investigation.” Mueller’s best proof? Michael Cohen claiming that the president’s personal counsel told him to “stay on message” and not contradict the president. Yet, Cohen had pleaded guilty to lying to Congress and was trying to save himself from a long prison sentence. He lacks any credibility.
In the end, Mueller has done significant damage to the Trump presidency. Because he refused to do what he was appointed to do, he has fueled the fires of impeachment. So, now we’ll spend the next year and a half with Democrats beating the drums of impeachment even though the special counsel exonerated the president of committing the crime for which the special counsel was appointed, and the attorney general cleared the president of obstructing justice. Mueller reports that Trump complained that the appointment of the special counsel will end his presidency.
Let’s hope the American people see this for what it is — a political prosecution, not a legal one.
Marc A. Scaringi, Esq. Mr. Scaringi is an attorney in Harrisburg, Pennsylvania, a radio talk show host of “The Marc Scaringi Show” on WHP 580AM and I Heart Radio and a Donald J. Trump endorsed Delegate to the 2016 Republican National Convention.
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