Mueller and Obstruction of Justice

The irony was that Lt. Gen. Mike Flynn was charged with and plead guilty to making false statements to the FBI.

By his own standards Robert Mueller was guilty of making “false statements” in his parting gift to Democrat impeachment seekers. He was not, however,  under legal oath, which is maybe why Democrats did not want him to be questioned by Congress in a hearing beforehand.

Mueller has had to walk back his lie about Office of Legal Counsel policy keeping him from indicting a sitting president. In his alleged “farewell” address, former Special Counsel Mueller managed to channel former FBI Director James Comey. Where is it written that former FBI directors get to recite a litany of possible charges against someone they are not going to charge? If, as Mueller had said, you could indict a sitting President,  and that is why he was not indicted, then why did he spend some $40 million the past two years pursuing an indictment? Just what happened to the presumption of innocence?

Mueller told AG Barr that it was not DOJ policy on not indicting sitting presidents that guided his decisions. Then, knowing the lamestream media would run with his lie, said the opposite. Elizabeth Vaughan noted at Red State:

In his statement this morning, Robert Mueller said “if we had confidence that the president clearly did not commit a crime, we would have said so.” He also said that, because of Office of Legal Counsel guidance, his team did not have the option of charging a sitting president with a crime.

This is the opposite of what he told Attorney General William Barr and several other DOJ officials at a meeting which took place on March 5th.

Barr was asked about why Mueller had failed to come to a conclusion on the question of obstruction of justice during his testimony before the Senate Judiciary Committee on May 1st. He said, “We were frankly surprised that they were not going to reach a decision on obstruction and we asked them a lot about the reasoning behind this. Mueller stated three times to us in that meeting, in response to our questioning, that he emphatically was not saying that but for the OLC opinion he would have found obstruction.”

Barr made a similar remark at the press conference he held prior to the public release of the redacted Mueller Report. He told reporters, “We specifically asked him about the OLC opinion and whether or not he was taking a position that he would have found a crime but for the existence of the OLC opinion. And he made it very clear several times that was not his position.”

It is not his or any prosecutor's job to "exonerate" anyone. They are presumed innocent, are they not? It was not a matter of whether you can indict a sitting president. The fact is that no president can be indicted for doing what he is constitutionally empowered and entitled to do. That is not obstruction of justice. Trump could have fired Mueller just as he did Comey and closed his entire investigation at any time and it would not have been obstruction of justice.  So noted legal scholar Alan Dershowitz in an interview with Leandra Bernstein of the Sinclair Broadcast Group on ABC7/WJLA Thursday:

Constitutional lawyer and Harvard law professor Alan Dershowitz said the special counsel had a legally flawed approach to investigating alleged obstruction of justice by President Donald Trump.

"What jumps out at me is that the Mueller people got the law all wrong on obstruction of justice," Dershowitz told Sinclair Broadcast Group in a Thursday interview. "They came to the conclusion that a president could obstruct justice by simply exercising his constitutional authority under Article 2."…

According to Dershowitz, the president was within his authority to fire the FBI director and would have been justified, under the unified executive theory, to shut down the investigation.

"The position I've taken from day one is for the president to obstruct justice, he has to go beyond his own permissible constitutional authority and engage in conduct that would be a crime for anyone else, like tampering with witnesses, obstructing a witness, paying witnesses, telling them to lie. None of that is charged against President Trump," Dershowitz said.

Trump also could have fired Mueller and closed the Office of Special Counsel at any time. If he couldn’t, Democrats and some Republicans wouldn’t have tried to pass laws preventing just that event.  They are creatures of the executive. Trump can fire any of his executive branch employees at any time for any reason. Agreeing with that assessment, Andrew C. McCarthy writes at National Review:

In our system, we have a unitary executive. All executive power is vested in a single official, the president of the United States. That means subordinate executive officers do not have their own power; they are delegated to exercise the president’s power. When they act, they are, in effect, the president acting. …

Prosecutorial power is executive in nature. Federal prosecutors therefore exercise the president’s power. Deputy Attorney General Rod Rosenstein and Special Counsel Robert Mueller have no power of their own; they exercise President Trump’s prosecutorial power for as long as that arrangement suits President Trump. The president does not need cause to fire them. He does not need to explain any dismissal to Congress -- “Gee, it’s Thursday and I feel like firing someone” is good enough….

If lawmakers believe the president is abusing his power by firing good public servants arbitrarily, they can impeach the president. Or they can try to bend the president into better behavior by cutting off funding, refusing to confirm nominees, or holding oversight hearings that embarrass the administration. Congress has these powerful political tools. But it does not have legal means to usurp the president’s constitutional power.

But exercising presidential powers is not a crime. Of course, Robert Mueller didn’t need a crime. In the best traditions of Josef Stalin, Mueller with Flynn and others needed only the man. He would find the crime, As Dershowitz writes in the Washington Examiner:

Special counsel Robert Mueller was commissioned to investigate not only crime but the entire Russian "matter." That is an ominous development that endangers the civil liberties of all Americans.

Federal prosecutors generally begin by identifying specific crimes that may have been committed -- in this case, violation of federal statutes. But no one has yet identified the specific statute or statutes that constrain Mueller's investigation of the Russian matter. It is not a violation of any federal law for a campaign to have collaborated with a foreign government to help elect their candidate…

One does not have to go back to the Soviet Union and Lavrentiy Beria's infamous boast to Stalin, "Show me the man and I will show you the crime," in order to be concerned about the expansion of elastic criminal statutes. There are enough examples of abuse in our own history.

From McCarthyism to the failed prosecutions of Sen. Ted Stevens, Rep. Thomas DeLay, Gov. Rick Perry and others, we have seen vague criminal statutes stretched in an effort to criminalize political differences.

Obstruction of what? An investigation fraudulently spawned by James Comey's felonious leaking of a private conversation with President Trump and a fake dossier put together by a British spy from Russian sources and paid for by Hillary Clinton and the DNC? Funny, but Mueller never said his investigation was obstructed or impeded in any way. Nor was anything else.

How can you obstruct justice on social media in front of 300 million people anyway? Mueller is now free to run and hide from testifying before Congress and answering embarrassing questions like when did he know there was no collusion and why did he keep going anyway, why he hired a team of Democratic lawyers, including one from the Clinton Foundation, and had as his chief deputy someone who was at Hillary’s victory party?

By refusing to go after the real colluders with Russia who committed real crimes, it is Robert Mueller who was obstructing justice.

Daniel John Sobieski is a freelance writer whose pieces have appeared in Investor’s Business Daily, Human Events, Reason Magazine and the Chicago Sun-Times among other publications.              

The irony was that Lt. Gen. Mike Flynn was charged with and plead guilty to making false statements to the FBI.

By his own standards Robert Mueller was guilty of making “false statements” in his parting gift to Democrat impeachment seekers. He was not, however,  under legal oath, which is maybe why Democrats did not want him to be questioned by Congress in a hearing beforehand.

Mueller has had to walk back his lie about Office of Legal Counsel policy keeping him from indicting a sitting president. In his alleged “farewell” address, former Special Counsel Mueller managed to channel former FBI Director James Comey. Where is it written that former FBI directors get to recite a litany of possible charges against someone they are not going to charge? If, as Mueller had said, you could indict a sitting President,  and that is why he was not indicted, then why did he spend some $40 million the past two years pursuing an indictment? Just what happened to the presumption of innocence?

Mueller told AG Barr that it was not DOJ policy on not indicting sitting presidents that guided his decisions. Then, knowing the lamestream media would run with his lie, said the opposite. Elizabeth Vaughan noted at Red State:

In his statement this morning, Robert Mueller said “if we had confidence that the president clearly did not commit a crime, we would have said so.” He also said that, because of Office of Legal Counsel guidance, his team did not have the option of charging a sitting president with a crime.

This is the opposite of what he told Attorney General William Barr and several other DOJ officials at a meeting which took place on March 5th.

Barr was asked about why Mueller had failed to come to a conclusion on the question of obstruction of justice during his testimony before the Senate Judiciary Committee on May 1st. He said, “We were frankly surprised that they were not going to reach a decision on obstruction and we asked them a lot about the reasoning behind this. Mueller stated three times to us in that meeting, in response to our questioning, that he emphatically was not saying that but for the OLC opinion he would have found obstruction.”

Barr made a similar remark at the press conference he held prior to the public release of the redacted Mueller Report. He told reporters, “We specifically asked him about the OLC opinion and whether or not he was taking a position that he would have found a crime but for the existence of the OLC opinion. And he made it very clear several times that was not his position.”

It is not his or any prosecutor's job to "exonerate" anyone. They are presumed innocent, are they not? It was not a matter of whether you can indict a sitting president. The fact is that no president can be indicted for doing what he is constitutionally empowered and entitled to do. That is not obstruction of justice. Trump could have fired Mueller just as he did Comey and closed his entire investigation at any time and it would not have been obstruction of justice.  So noted legal scholar Alan Dershowitz in an interview with Leandra Bernstein of the Sinclair Broadcast Group on ABC7/WJLA Thursday:

Constitutional lawyer and Harvard law professor Alan Dershowitz said the special counsel had a legally flawed approach to investigating alleged obstruction of justice by President Donald Trump.

"What jumps out at me is that the Mueller people got the law all wrong on obstruction of justice," Dershowitz told Sinclair Broadcast Group in a Thursday interview. "They came to the conclusion that a president could obstruct justice by simply exercising his constitutional authority under Article 2."…

According to Dershowitz, the president was within his authority to fire the FBI director and would have been justified, under the unified executive theory, to shut down the investigation.

"The position I've taken from day one is for the president to obstruct justice, he has to go beyond his own permissible constitutional authority and engage in conduct that would be a crime for anyone else, like tampering with witnesses, obstructing a witness, paying witnesses, telling them to lie. None of that is charged against President Trump," Dershowitz said.

Trump also could have fired Mueller and closed the Office of Special Counsel at any time. If he couldn’t, Democrats and some Republicans wouldn’t have tried to pass laws preventing just that event.  They are creatures of the executive. Trump can fire any of his executive branch employees at any time for any reason. Agreeing with that assessment, Andrew C. McCarthy writes at National Review:

In our system, we have a unitary executive. All executive power is vested in a single official, the president of the United States. That means subordinate executive officers do not have their own power; they are delegated to exercise the president’s power. When they act, they are, in effect, the president acting. …

Prosecutorial power is executive in nature. Federal prosecutors therefore exercise the president’s power. Deputy Attorney General Rod Rosenstein and Special Counsel Robert Mueller have no power of their own; they exercise President Trump’s prosecutorial power for as long as that arrangement suits President Trump. The president does not need cause to fire them. He does not need to explain any dismissal to Congress -- “Gee, it’s Thursday and I feel like firing someone” is good enough….

If lawmakers believe the president is abusing his power by firing good public servants arbitrarily, they can impeach the president. Or they can try to bend the president into better behavior by cutting off funding, refusing to confirm nominees, or holding oversight hearings that embarrass the administration. Congress has these powerful political tools. But it does not have legal means to usurp the president’s constitutional power.

But exercising presidential powers is not a crime. Of course, Robert Mueller didn’t need a crime. In the best traditions of Josef Stalin, Mueller with Flynn and others needed only the man. He would find the crime, As Dershowitz writes in the Washington Examiner:

Special counsel Robert Mueller was commissioned to investigate not only crime but the entire Russian "matter." That is an ominous development that endangers the civil liberties of all Americans.

Federal prosecutors generally begin by identifying specific crimes that may have been committed -- in this case, violation of federal statutes. But no one has yet identified the specific statute or statutes that constrain Mueller's investigation of the Russian matter. It is not a violation of any federal law for a campaign to have collaborated with a foreign government to help elect their candidate…

One does not have to go back to the Soviet Union and Lavrentiy Beria's infamous boast to Stalin, "Show me the man and I will show you the crime," in order to be concerned about the expansion of elastic criminal statutes. There are enough examples of abuse in our own history.

From McCarthyism to the failed prosecutions of Sen. Ted Stevens, Rep. Thomas DeLay, Gov. Rick Perry and others, we have seen vague criminal statutes stretched in an effort to criminalize political differences.

Obstruction of what? An investigation fraudulently spawned by James Comey's felonious leaking of a private conversation with President Trump and a fake dossier put together by a British spy from Russian sources and paid for by Hillary Clinton and the DNC? Funny, but Mueller never said his investigation was obstructed or impeded in any way. Nor was anything else.

How can you obstruct justice on social media in front of 300 million people anyway? Mueller is now free to run and hide from testifying before Congress and answering embarrassing questions like when did he know there was no collusion and why did he keep going anyway, why he hired a team of Democratic lawyers, including one from the Clinton Foundation, and had as his chief deputy someone who was at Hillary’s victory party?

By refusing to go after the real colluders with Russia who committed real crimes, it is Robert Mueller who was obstructing justice.

Daniel John Sobieski is a freelance writer whose pieces have appeared in Investor’s Business Daily, Human Events, Reason Magazine and the Chicago Sun-Times among other publications.