Mueller Had No Power to Exonerate, Only to Accuse

By | 2019-03-25T08:54:10-07:00 March 25th, 2019|
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Mitt Romney, the former candidate for president who struggled to get out from under the shadow of his pick for vice president, Paul Ryan, posted this to his social media accounts:

The Mueller investigation, led by a person of such honor and integrity, has faithfully applied the rule of law despite accusations and fears to the contrary. It is good news that the Special Counsel has concluded that neither the President nor his campaign colluded with the Russian government. And now it is time for the country to move forward.

Move forward indeed.

It’s fair to ask, what evidence is there that Special Counsel Robert Mueller is a person of honor and integrity? Deputy Attorney General Rod Rosenstein had proposed his friend Mueller as the head of the FBI, and when Trump rejected this permanent fixture of the administrative state to succeed James Comey, Rosenstein appointed Mueller as special counsel. Not usual at all. An appearance of impropriety surrounds Mueller’s appointment. Where there’s smoke, there’s fire.

Mueller’s team of 19 prosecutors and 40 FBI agents served 2,800 subpoenas to produce nothing material to the immediate scope of his investigation, only process crimes that were never tried but pleaded to in order for those accused to avoid financial ruin, the indictment of foreigners who will never be tried, and convictions on unrelated matters designed—as the judiciary noted—to coerce testimony. None of this says integrity.

In his submission to the attorney general, Mueller had the temerity to pen these words: “this report does not conclude that the President committed a crime; it also does not exonerate him.” If Mueller were a first-year law student in criminal procedure he would receive a “D.” Prosecutors accuse. Only a trial by a jury of one’s peers “concludes” someone has committed a crime. Nor do prosecutors have the power to exonerate. Everyone in America, including a sitting president, is presumed innocent until convicted in a court of law.

That Mueller stumbled in his report and revealed that he has in his mind arrogated to himself the power of guilt and exoneration is a prima facie showing of a lack of integrity. These are the paces of papal inquisitors, not the actions of honest American prosecutors. Mueller’s contorted comprehension of the ground rules of our Anglo-Saxon system of justice, which rules are designed to jealously protect the liberties of the accused and any bystanders, is frightening.

Mueller’s weak comprehension of American justice is of the same species as the assault on citizenship that animates so much of the identity politics driving the administrative state. The political friendship of equal citizens requires that we hold one another innocent unless convicted through the process of law. The reciprocal affection needed to deliberate about the common good together, as friends in pursuit of a common object, cannot exist without it. This is not a ball that a prosecutor of integrity can fumble.

Given the lives ruined, should not Mueller’s office be investigated to discover his intention in trampling on these principles? If Mueller’s investigation lacked integrity, should not he and his prosecutors be disciplined? The integrity of our system of justice requires a close look at these questions, not only for the sake of future presidents but for the sake of anyone who might be subject to prosecutorial abuse.

Mueller’s comment on exoneration has another disturbing aspect. It is a message. The words “it also does not exonerate him” is a message to #TheResistance and NeverTrump to carry on frustrating this president.

David Frum tweeted: “No exoneration. The president remains a security risk.” Sadly we observe, the psychological condition of #TheResistance and NeverTrump is one of the people under the delusion that had they been alive in 1933 they would have stopped Hitler. This delusion is reinforced by their erratic actions opposing Trump. The more they oppose Trump, the more events convince them of their sanity. The more marginalized they become, the more confident they grow in their righteousness. They remind one of a schizophrenic who believes the television is speaking directly to him on behalf of a secret entity, except that Mueller is speaking directly to them, in French no less.

J’Accuse.

Photo credit: Tasos Katopodis/Getty Images

About the Author:

Jay Whig
J. Whig is an attorney practicing in New York and a resident of Connecticut specializing in insolvency and restructuring. Opinions are his own.