Mueller Rewrites Jurisprudence – Guilty Until Proven Innocent

American jurisprudence is based on the presumption of innocence -- in other words, innocent until proven guilty. The accused remains innocent unless and until the prosecution can convince a judge or jury that the accused is guilty beyond a reasonable doubt.

Exoneration is not part of this equation for it represents the exact opposite principle, namely guilty until proven innocent. This is an impossible standard as it requires proving a negative. How does one prove that he or she didn’t commit a crime? How does one prove that Elvis or JFK aren’t still alive, conspiracy theories aside? Exoneration is an impossible standard and turns the American judicial system upside down.

This is just what Special Counsel Robert Mueller did in his final report on Russian collusion. The 400-page report could have been summarized in four words – no collusion, no obstruction.

White House Special Counsel to the President, Emmett Flood, laid it all out in a recent letter to Attorney General Barr. The purpose of the letter was a rebuttal, an on-the-record response to the Mueller report.

Flood began by saying that the Mueller report “Suffers from an extraordinary legal defect. It quite deliberately fails to comply with the requirements of governing law.”  This is a roundabout way of saying the report is illegal.

Flood went on in his four-page letter to the obstruction component, which as an aside was not the original intention of the special counsel. Remember Deputy AG Rod Rosenstein’s letter from May 2017 appointing a special counsel? In that letter, Rosenstein tasked Mueller with investigating, “Any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.”

That was the collusion component and definitively addressed in part one of Mueller’s report. Interestingly, as we are learning now, there was no basis to investigate Russian collusion in the first place. The premise of Trump campaign surrogates conspiring with Russians was all a set-up, based on “spies” inserted into the Trump campaign as begrudgingly reported recently by the NY Times.

Or as Byron York reported, “There are indications that special counsel prosecutors mostly knew by the end of 2017, and certainly by a few months later, that the evidence would not establish that conspiracy or coordination had taken place.”

This entire investigatory spectacle could have ended well over a year ago with a “no collusion” verdict, allowing the President to function without the cloud of Mueller and predicted indictments shadowing Trump’s every move and decision.

How might foreign leaders have been more amenable to working with the Trump administration knowing Trump wasn’t a Russian agent, as asserted repeatedly by high ranking Obama justice and intelligence officials claiming just that on cable news shows? Would the midterm elections have turned out differently? Would dozens of Republican members of Congress not have retired if they knew for certain that the leader of their party wasn’t a traitor, as they were hearing daily on the news?

Instead Mueller and his team pivoted to obstruction, and without Whitaker, then Barr, telling Mueller to wrap things up, the investigation would have dragged on for up to six more years, an albatross hanging around the neck of the Trump administration, in essence nullifying a presidential election.

This alone violated two constitutional amendments. The President lost his Fourth Amendment protections regarding “probable cause.” If the entire collusion premise was based on a phony unverified dossier and spies inserted into the Trump campaign to entrap George Papadopoulos, there was no “probable cause” to investigate collusion.

Then there is the Sixth Amendment, which provides a trial “without unnecessary delay,” not an endless one-sided investigation. There is also the “right to an impartial jury,” in this case the media acting as jury, reporting daily on the investigation, including material leaked to the media from investigators, with media coverage being 90-plus percent negative toward the President.

Finally, there is the presumption of innocence. As Emmett Flood explained,

What prosecutors are supposed to do is complete an investigation and then either ask the grand jury to return an indictment or decline to charge the case. When prosecutors decline to charge. they make that decision not because they have “conclusively determin[ed] that no criminal conduct occurred,” but rather because they do not believe that the investigated conduct constitutes a crime for which all the elements can be proven to the satisfaction of jury beyond a reasonable doubt. Prosecutors simply are not in the business of establishing innocence. any more than they are in the business of "exonerating" investigated persons. In the American justice system, innocence is presumed; there is never any need for prosecutors to “conclusively determine” it. Nor is there any place for such a determination. Our country would be a very different (and very dangerous) place if prosecutors applied the SCO standard and citizens were obliged to prove “conclusively . . . that no criminal conduct occurred.”

Boom! The entire second part of the Muller report has turned American jurisprudence upside down. Mueller’s job was to investigate and either find the evidence to bring obstruction charges against Trump or not. If no charges, then the accused is presumed innocent. Exoneration is not part of the equation.

Instead Mueller used, as Flood described as an “inverted-proof-standard” with so-called exoneration as a “political statement.”  Meaning Mueller did not do his job. “The inverted burden of proof knowingly embedded in the conclusion shows that the Special Counsel and his staff failed in their duty to act as prosecutors and only as prosecutors.”

It’s now blatantly obvious that the purpose of the obstruction portion of the report was to provide a “roadmap to impeachment” for Congress. Mueller did an investigation using resources and powers that Nadler and Schiff don’t have within their committees. Basically, Mueller did their homework for them and handed them a completed assignment.

Impeachment is a political remedy and the obstruction case is all laid out for them should they choose to pursue it, which is a political decision for Democrats. Given the recent news of the blockbuster economy and Trump’s approval numbers, Democrats can cry obstruction all they want, but for impeachment they will be playing a pair of kings against Trump holding a straight flush.

Mueller’s legacy, besides coming up empty, is inverting the presumption of innocence. Aside from, as Flood described, “causing immense and continuing interference with the function of the Executive Branch”, this is setting a dangerous precedent.

Justice Kavanaugh was presumed guilty with demands that he prove his innocence. Nick Sandmann was also presumed guilty by partisan media outlets eager to push a particular narrative. Fortunately, justice prevailed. Kavanaugh is on the high court and several media organizations are facing nine-figure lawsuits over their deliberate deceptive reporting of Sandmann.

Trump too will have his day as Team Barr and declassifications open the curtain on this entire sordid mess. And if the wrong doers are not severely punished and publicly shamed, the big loser is American jurisprudence. The opposite of “innocent until proven guilty” is the KGB and the Stasi. Is that the kind of power we want our justice system wielding?

Image credit: Donkey Hotey (croppped)

Brian C Joondeph, MD, MPS, a Denver based physician and writer. Follow him on Facebook,  LinkedIn and Twitter.