The Mueller Report — WC’s Final Notes


Class Act: By Robert J. Delahunty, John Yoo Published May 18, 2017 Fox News FILE: Feb. 2, 2012: FBI Director Robert Mueller testifies on Capitol Hill in Washington, D.C. FILE: Feb. 2, 2012: FBI Director Robert Mueller testifies on Capitol Hill in Washington, D.C. (AP)

FILE: Feb. 2, 2012: FBI Director Robert Mueller testifies on Capitol Hill in Washington, D.C. (AP)

The Mueller Report is going to be analyzed, dissected and criticized for years, maybe decades. WC predicts multi-volume treatises will eventually be written. It’s also somewhat talismanic: every side of the Trumpian debates — and there are more than two sides — can find something to seize upon in support of their positions. Although sometimes you have to be very selective in what lines from the Mueller Report you rely upon. WC has discussed selected topics from the Mueller Report from time to time for the last few weeks, trying to look at unanalyzed aspects, or (in WC’s view), mis-analyzed aspects of the sordid business. This essay concludes WC’s analysis, at least for the time being..

No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy and to observe the limitations which it imposes upon the exercise of the authority which it gives.

— United States v. Lee (1882)

Robert Mueller’s Report quotes Justice Miller’s famous line from Lee at page 8.1 On the one hand, Mueller makes it clear that, for all practical purposes, President Trump is a perp and that there is abundant, even overwhelming, evidence that he obstructed and attempted to obstruct justice. Mueller is even at pains to rebut the defenses offered by Trump’s lawyers and the Attorney General of the United States.

On the other hand, Mueller regards himself, as an agent of the law, bound by rules, even if criminals, by definition, are not. And the official position of the U.S. Department of Justice is that a sitting president may not be indicted. You may disagree with that official position. WC certainly does. Heck, Mueller probably does. But it is the rule, and Mueller, as an agent of the law, understands he must follow the rules. Mueller can and does lay out the evidence, in 800-plus pages of detail. Mueller can and does rebut the lame arguments of Trump’s horde of lawyers that a sitting President cannot obstruct justice. He even identifies potential motives for obstruction. But Mueller cannot change the DOJ policy. Only the Attorney General can do that, not special counsel.2

Mueller also stops short of accusing Trump of the crimes that the evidence makes perfectly clear the President committed. Because Mueller not only follows the law; he is ethical, again in stark contrast to the corruption that hangs around Trump like a stench. Unlike, for the matter, Attorney General Barr.3 It is unethical for a law enforcement officer to accuse a person of committing crimes when they will not have the opportunity to appear in court to depend themselves.4

It’s hard to disagree with Mueller’s decision not to indict a sitting president without behaving like Trump and ignoring the rule of law. You might very well not like the outcome of following the rule of law. But Trump escapes any indictment only until he is no longer president. It’s easier to disagree with Mueller’s decision not to make the accusation, because it is a matter of loose policy and not any formal attorney general opinion. Still, it’s the right thing, the ethical thing to do under the rule of law.

And that’s the thing, isn’t it? Chaos or the rule of law. With Trump, we get the chaos. We’ve lived the chaos more than two years. Mueller is telling us, without ever saying it, that you cannot defeat chaos with more chaos. That only gives you still more chaos. You defeat chaos with the rule of law.

It’s distasteful to watch Trump gloat that “They didn’t touch me.” But the thing about the law is that while it moves slowly, maybe too slowly, it generally works pretty well in the long run. WC has zero confidence that Congress will act. Even if the House impeaches Trump, there’s no realistic chance the Senate will convict. The Republicans’ near-total silence on the Mueller Report, not even a hint of reproval by any but two Republican senators. But Trump won’t be president forever. And if his successor is a Democrat, well, the case is made.

In the meantime, WC is content to follow the rule of law.

 


  1. 106 U.S. 196, Justice Miller, writing for the majority. 
  2. The contrast between Mueller and Attorney General Barr could not be sharper. Mueller held strictly to the rule of law. Barr, the chief law enforcement officer of the United States, discussed the report with Trump’s attorney in advance, selectively redacted materials, and attempted to spin, even misstate, contents of the Report before releasing it to the public. Barr did not follow the rule of law. The redactions for reasons of “personal privacy” are especially pernicious. 
  3. Can you imagine a prosecutor discussing an indictment with the perp’s lawyers, in advance of filing it with the court? Barr did. Barr got the job, in large part, because he written a gratuitous memo defending the President, arguing against Mueller’s investigation. Can you imagine staying on a case after demonstrating that kind of bias? Hell, even Jeff Sessions recused himself from involvement for lesser conduct. 
  4. Fairness concerns counseled against potentially reaching that judgment 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. — U.S. Dep’t of Justice, Justice Manual § 9-27.220 (2018) 
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