When AG Bill Barr first released his summary of the Mueller report some weeks ago there was one part that set hair ablaze all throughout the media. Namely, that Robert Mueller decided to not rule on the most important question before him, i.e. if Donald Trump obstructed justice with his criticism of the Russia investigation. Furthermore, Mueller proclaimed that he had not exonerated the President despite the fact that he was not recommending charges.
As I wrote at the time, this was a total cop-out and not his job as a prosecutor.
It was a total, damaging cop-out for him to include that line instead of just making the call in a normal prosecutorial fashion. That doesn’t mean he needed to say Trump was innocent because that’s not his job, but the proper response would have been to say that he lacks evidence of obstruction and he cannot recommend further action. By ambiguously claiming that he simply can’t make the call, instead leaving it to the DOJ, he’s set us up for another 18 months of mind-numbing stupidity that will end the same way the collusion narrative ended.
Today, Andrew C. McCarthy, far more versed on this topic than myself, opined on just how bad it was for Mueller to do what he did.
In his report, Mueller didn’t resolve the issue. If he had been satisfied that there was no obstruction crime, he said, he would have so found. He claimed he wasn’t satisfied. Yet he was also not convinced that there was sufficient proof to charge. Therefore, he made no decision, leaving it to Attorney General William Barr to find that there was no obstruction.
This is unbecoming behavior for a prosecutor and an outrageous shifting of the burden of proof: The constitutional right of every American to force the government to prove a crime has been committed, rather than to have to prove his or her own innocence.
As I said earlier today, this is why the DOJ has guidelines on not releasing findings if no one is charged and it’s why they should have been followed here. It is not a fair use of our legal system to slander people who ultimately weren’t found to have committed a criminal act. Gut feelings don’t count. Robert Mueller had two choices in so far as doing his job in a professional way. Either present evidence of obstruction of justice and recommend charges or shut up about it. There should have been no choice number three where he lays out a bunch of insinuations and interpretations, while choosing to not actually do his job and rule on the evidence. That’s not what a prosecutor does.
McCarthy lays the case out for that as well.
This is exactly why prosecutors should never speak publicly about the evidence uncovered in an investigation of someone who isn’t charged. The obligation of the prosecutor is to render a judgment about whether there is enough proof to charge a crime. If there is, the prosecutor indicts; if there is not, the prosecutor remains silent.
If special counsel Mueller believed there was an obstruction offense, he should have had the courage of his convictions and recommended charging the president. Since he wasn’t convinced there was enough evidence to charge, he should have said he wasn’t recommending charges. Period.
Mueller clearly felt the President possibly did something wrong and did everything he could to steer public opinion in that direction with how he wrote the report. When it came time to take the shot though, he couldn’t pull the trigger. Why? Because he knows his “evidence” would have never stood up in a court of law. Mean tweets coupled with full cooperation does not equal obstruction. Firing Comey while allowing the investigation to not only continue, but expand, is clearly not obstruction. Did Trump do some things that could be described as borderline or not recommended? Perhaps, but borderline isn’t a legal standard. A prosecutor either makes a decision to charge or they don’t.
By punting on the issue, Mueller deprived Trump of the legal right to defend himself and instead let the issue become purely political. The justice system is not supposed to be used as a tool for innuendo, much less to feed media hysteria for years on end. It strains reason to think Mueller just didn’t realize that would happen.
This is why I’m not on the bandwagon of praising Robert Mueller just because he didn’t frame Trump. That’s a pretty low bar to meet. On the most important question in the entire report (because we’ve known for years the collusion narrative was false), he abdicated his responsibility and ensured the country would spend another two years paralyzed by this nonsense. He had the power and a duty to settle the issue by doing his job and making a decision, which was the only reason for his appointment in the first place. If he wasn’t willing to do that, he should have resigned long ago.
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