The Mueller Investigation Is the Fruit of a Poisonous Tree—There Must Be Pardons

By | 2019-05-02T22:11:15-07:00 May 2nd, 2019|
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There is an important reason why courts do not admit evidence that stems from corrupt law enforcement or prosecutorial activity—evidence known in law as “the fruit of the poisonous tree.” If corrupt governmental activities lead to convictions, and the threat of such convictions is used to trample upon the rights of free citizens, then those citizens will not, in fact, be free. They will not be citizens at all, in the proper sense of the term. They will, instead, become subjects of tyranny, victims of a government which can work its will without regard to the due process protections provided both by the Constitution and the customs of our law.

These protections are the guarantors of our freedom, and central among them is the bedrock principle in the Constitution’s Fourth Amendment that “no warrants shall issue, but upon probable cause.” Criminal inquiries should never be rooted in insinuation and gossip, much less politically motivated malice.

Thanks to the reporting of John Solomon, Sara Carter, Julie Kelly, Gregg Jarrett and others, we know that the so-called Steele dossier formed much, if not all, of the basis of the “Trump-Russia collusion” probe. Written by a former British spy named Christopher Steele, the dossier is full of falsehoods about Trump and his alleged ties to Russia. It is nothing more than opposition research, produced at the behest of Hillary Clinton’s campaign and circulated by high-ranking officials in President Obama’s intelligence apparatus.

Such baseless allegations should never have been used in pursuit of FISA warrants to spy on American citizens. The dossier could never have been grounds for a responsible criminal investigation of any kind. And yet, it is from this source that the entire “Trump-Russia collusion” narrative flows, along with any related or connected investigations—against Paul Manafort, Michael Cohen, Michael Flynn, and other Americans. This dossier is, therefore, the poisonous tree: a poisonous tree grown in the swamp of institutional, establishment Washington, fed and fertilized by venom and hatred for a new, outsider president and contempt for those who elected him. Its poisoned fruit is the Mueller report and all of the indictments, prosecutions, and guilty pleas ultimately connected, in any way, to its lies and hearsay.

The mainstream media—and the Mueller report itself—offer a different story. They claim the investigation started when a low-ranking Trump campaign associate named George Papadopoulos learned from “Joseph Mifsud, a London-based professor who had connections to Russia . . . that the Russian government had ‘dirt’ on Hillary Clinton in the form of thousands of emails.” Apparently, Papadopoulos then spoke about the Mifsud conversation with Alexander Downer, the Australian High Commissioner to the United Kingdom, in a London restaurant. Downer, in turn, informed the FBI.

Maybe, to reporters who have learned about criminal procedure from binge-watching television, “Papadopoulos-as-probable-cause” seems legitimate. But, if Papadopoulos were actually the starting point for the entire investigation, and even if the dossier had never existed, the investigation would still be poisoned. As Jarrett correctly observes in The Russia Hoax, everything about the Papadopoulos conversation is hearsay: it’s all about what the young operative possibly heard from one person and supposedly said to another, with no real evidence of wrongdoing by Trump or his campaign behind any of it. As a matter of fact, the Mueller report states while Papadopoulos tried “to arrange a meeting between the Campaign and the Russian government . . . [n]o meeting took place.”

Even if such a meeting had taken place, it wouldn’t necessarily have been illegal. Likewise, as Harvard Law Professor Alan Dershowitz and others have noted, “collusion” itself is not even a criminal offense. To launch an investigation on the basis of the Papadopoulos hearsay is no better, legally, than to launch one on the basis of the dossier. Neither establishes the foundation for probable cause of wrongdoing. If either, or both, were the catalyst for the investigation, then the entire proceedings are poisoned.

Yes, it is legitimate for the U.S. government to investigate any and all foreign intrusion and spying. There was evidence that the DNC servers were hacked, and our intelligence community believed Russia was responsible. So, allow an investigation to proceed by the regular channels: either in the executive branch, through its intelligence agencies or the Department of Justice where appropriate; or, conversely, in Congress to examine how better to secure national infrastructure in the future. To connect such legitimate inquiry with the utterly illegitimate and baseless investigation of Trump and his campaign was merely to supply cover for unremitting political attacks.

In the face of systemic failure in the justice system, the president, by virtue of the pardon power granted him by the Constitution, has the authority to set things right. The president must now counter the weaponization of the legal system, restore due process, and ensure against future baseless investigations. The only way to do this is to render moot all criminal allegations and convictions stemming from the original, poisonous tree. Every single individual whose criminal convictions or federal charges are traceable, directly or indirectly, either to the Steele dossier or the Papadopoulos hearsay should be pardoned. These include individuals charged both by the special counsel and by other federal prosecutors to whom his office made criminal referrals. These pardons should issue whether or not they are requested and irrespective of any possible underlying offenses. Affected individuals potentially include Paul Manafort, Michael Flynn, Papadopoulos, and even Michael Cohen.

As chief law enforcement officer of the United States, the president is obliged to protect our system—even when doing so will not benefit him personally, such as with pardoning Cohen, a man Trump has come to detest, or where such actions will lend themselves to even more negative media coverage.

No matter that law enforcement might uncover actual wrongdoing; if it does so by corrupt or unconstitutional means, any conviction hinging upon or linked to those means should be vacated. The alternative is to incentivize tyranny. The alternative is a precedent of investigation-by-gossip, of political warfare under the guise of “neutral” justice, of lawlessness under cover of the rule of law.

It is time to drain the poison from the swamp. There must be accountability for those who corruptly instigated the collusion charade. But first, there must be pardons.

Photo Credit: Win McNamee/Getty Images

About the Author:

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Augustus P. Howard, a Ph.D. candidate at the University of Cambridge, holds a B.A. from Williams College, an M.Phil. from the University of Cambridge, and a J.D. from Duke University School of Law. He has also served as a law clerk on the 11th U.S. Circuit Court of Appeals.