Sunday, April 21, 2019

When memories were fresh

Richard Nixon was referred to in grand jury documents as an "unindicted co-conspirator." He was unindicted because the Justice Department's Office of Legal Counsel had issued an opinion that a sitting president could not be charged with a crime. That Justice Department policy (it is not a law) remains in effect to this day.

When Watergate Special Prosecutor Leon Jaworski turned his findings over to Congress, his documentation was referred to as a "road map" for congressional action. The road map was a meticulous legal account of Nixon's transgressions which laid out the way forward in pursuit of constitutional remedies that were unavailable to Jaworski.

That still-effective OLC policy determined how Robert Mueller decided to proceed with his own investigation and convey his findings. Mueller wrote in his report that

"we determined not to apply an approach that could potentially result in a judgment that the President committed crimes."

Mueller explained that

"a traditional prosecution or declination decision entails a binary determination to initiate or decline a prosecution, but we determined not to make a traditional prosecutorial judgment"

because, in part,

"[t]he Office of Legal Counsel (OLC) has issued an opinion finding that 'the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions' in violation of  'the constitutional separation of powers.'"

Mueller's explanation sheds useful light on his report's saying that

"[i]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of  justice, we would so state. We are unable to reach such a judgment."

It does not take a lot of reading between the lines to suspect that Mueller believes that crimes were in fact committed, especially when one reads the exhaustive legal case he lays out for specific examples of obstruction by Trump—in addition to his belaboring the reasons he could not bring charges. I hope Mueller wouldn't object to such a reading. Mueller's case, in its detail, presentation, and analysis, can be rightly viewed as a road map for further action that Mueller himself is unable to take.

At a minimum, Mueller deemed it important to establish a definitive record, not least because other remedies are available that could benefit from it.

"Given those considerations, the facts known to us, and the strong public interest in safeguarding the integrity of the criminal justice system, we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available."

What other remedies are available which would benefit from preservation "of the evidence when memories were fresh and documentary materials were available?" Impeachment, of course. But also, in due course, prosecution:

"The OLC opinion also recognizes that a President does not have immunity after he leaves office."

A president may be prosecuted for previous crimes once he's no longer in office. His not being in office can be a result of impeachment and removal, or merely having his term expire. Richard Nixon could have been prosecuted after he resigned, except that Gerald Ford pardoned him. And Bill Clinton could have been prosecuted after his term ended, except he reached a settlement with prosecutors on his final day in office. That settlement involved his paying a fine and having his law license revoked.

Because being in office confers immunity, Trump has a strong incentive to win reelection.

Mueller is walking a very fine line, which itself raises difficulties, but it's the best he can do. He notes that

"[f]airness concerns counseled against potentially reaching that  judgment [of criminality] when no charges can be brought. The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor's judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator."

Again, when Mueller belabors in such detail what he could not or should not do, it suggests what he would otherwise want to do, were circumstances different.

It's even more delicate when a president is involved:

"The concerns about the fairness of such a determination would be heightened in the case of a sitting President, where a federal prosecutor's accusation of a crime, even in an internal report, could carry consequences that extend beyond the realm of criminal justice."


Having a special counsel's accusation hanging over his head could, it is argued, place the president in an untenable position relative to the duties of his office, so no accusation was made. And yet, the evidence laid out is serious and perhaps damning, and goes some way toward the compromise of the president that Mueller seeks to avoid. As I said, it's an unavoidably fine line that Mueller walks.

Mueller noted that even a sealed indictment (to be unsealed when the president leaves office) was deemed unworkable for fear that it would become public. His multiple explanations for why no charges were brought, and that the president was not exonerated, is a strong indication that in his opinion crimes were committed. But the remedy is not with Mueller, but rather elsewhere.

So what Mueller delivers is a road map to allow the constitutional system to run its proper course, offering this observation:

"The conclusion that Congress may apply the obstruction laws to the President's corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law."

Copyright (C) 2019 James Michael Brennan, All Rights Reserved

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