Mueller’s Copperhead Bill of Attainder

On the one hand, the second part of Special Counsel Robert Mueller’s report reads like a brief opposing presidential powers in a separation of powers dispute. But even more, it reads like a justification for a bill of attainder or an ex post facto law—two forbidden forms of legislation in the Constitution (Article I, Section 9, clause 3; and Section 10, clause 1). Such constitutionally prohibited laws are designed and targeted to punish individuals (in this case President Donald J. Trump) and are not general statements about the rule of law. A Congress devoted to identity politics, or politics about personal traits, can only fashion laws that make personal attacks on people.

Thus, as a defender of the Constitution, Attorney General Bill Barr should dismiss part two of Mueller’s report like dicta (unsupported viewpoints) in a Supreme Court opinion, or a bizarre brief concocted in a stupor—as Barr evidently has done.

Citing cases involving President Nixon’s Watergate materials, the special counsel’s odd thoughts on the separation of powers are owed no deference whatsoever. White House Special Counsel Emmet Flood recently gave a justly deserved tart reply to Mueller.

In fact, the legal terminology worth marveling at in the cases Mueller cites in part two of the report is the bill of attainder, with all its old British antecedents. The House Judiciary Committee (as are other House committees) is without a doubt involved in the preparation of such proscribed legislation. Anyone devoted to the Constitution should not cooperate with the committee’s monstrous fulminations.

“Thus,” says Flood, “none of the Report’s Volume II complied with the obligation imposed by the governing regulation to ‘explain the prosecution or declination decisions reached.’” (Emphasis in the letter)

Flood continues:

The [special counsel] instead produced a prosecutorial curiosity—part “truth commission” report and part law school exam paper. Far more detailed than the text of any known criminal indictment or declination memorandum, the Report is laden with factual information that has never been subjected to adversarial testing or independent analysis. That information is accompanied by a series of inexplicably inconclusive observations (inexplicable, that is, coming from a prosecutor) concerning the possible application of law to fact. This species of public report has no basis in the relevant regulations and no precedent in the history of special/independent counsel investigations.

I would add as an example that the case that draws the most citations in part two is Nixon v. General Services Administration (1972), involving access to the former presidents’ papers. The Supreme Court decided the case with a fragmented plurality, with three concurring opinions and two dissents. Today, the logic of the dissents would likely command a majority.

There is much else in Flood’s five-page letter worth keeping in mind, such as the illegal leaks of intelligence information, executive privilege, and former FBI Director James Comey’s involvement in launching the investigation by the special counsel.

But I want to focus on the bill of attainder issue. As it happens, we have seen this before.

In research I have been conducting at the National Archives Annex, I came across a James Miller report, circa 1864, addressed to “The Democracy That May Die in Darkness.” Despite missing pages and smeared ink, I have been able to reconstruct at least some of manuscript.

I am not sure which James Miller this is, but he may have been the attorney who had some role in investigating a series of poisonings involving small pox-soaked blankets. More to the point, this Miller colluded with some Democratic politicians, including a mysterious “Mac,” to try to derail Abraham Lincoln’s presidential reelection campaign. The idea, it seems, was to spring their plot in the fall of 1864 and offered the hoped-for Democratic majorities in Congress a means of thwarting Lincoln or even bringing about impeachment charges.

The death of Chief Justice Roger Taney on October 12, 1864 dealt a blow to their chances. Former officials of President Buchanan’s administration, the mayor of New York, some senators, and the governor of Maryland were among the conspirators. Of course, Lincoln’s successful reelection and the Republican majorities in Congress throughout the fall put an end to that scheme.

The charges focused on the following accusations of violating the Constitution through his wartime acts, especially those involving slavery:

The chief hypocrisy this Devil concocted was his offer in his First Inaugural address to support a constitutional amendment protecting slavery in perpetuity. But once this butcher launched the unconstitutional war that cost hundreds of thousands of lives his Emancipation Proclamation inspired slave rebellions with all their murderous consequences, all quite in contradiction to the Declaration of Independence, which condemned such rebellions. Emancipation destroyed the property rights and the fortunes of thousands of citizens of the South.

The foul traitor’s unnecessary war violated the most basic rights of those in the Union, including habeas corpus and free speech. This tyrant crushed the rights of white Americans to liberate blacks and make them our equals in all ways. But the Dred Scott opinion remains the law of the land: blacks “had no rights the white man was bound to respect.” Yet this lawless low-life defied the Supreme Court by granting blacks passports, patents, and even citizenship. His Army armed them and made them soldiers. This monster sacrificed tens of thousands of white men for their sake. We must restore the Constitution! Sic semper tyrannis! No more Ape-raham!

At this point the manuscript breaks off. I will return to further work on it. I am thinking of titling the book, with scholarly apparatus and commentary, The Copperhead Chronicles. It will take some years to put together, so I’ll need to set up a GoFundMe page. It might make a two-volume set with the Mueller Report, The Copperhead Chronicles: Parts 1 and 2. What do you think?

Photo Credit: Alex Wong/Getty Images

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About Ken Masugi

Ken Masugi, Ph.D., is a distinguished fellow of the Center for American Greatness and a senior fellow of the Claremont Institute. He has been a speechwriter for two cabinet members, and a special assistant for Clarence Thomas when he was chairman of the Equal Employment Opportunity Commission. Masugi is co-author, editor, or co-editor of 10 books on American politics. He has taught at the U.S. Air Force Academy, where he was Olin Distinguished Visiting Professor; James Madison College of Michigan State University; the Ashbrook Center of Ashland University; and Princeton University.