Andrew McCarthy has laid out a strong case explaining that Special Counsel Robert Mueller’s probe of the alleged Russia-Trump election collusion has devolved into an obstruction (read impeachment) investigation.
McCarthy, a former assistant U.S. attorney for the Southern District of New York, points out that the commentariat is misinforming the public, and themselves about how prosecutors build cases. As McCarthy puts it, “they reason that Mueller is methodically constructing a major case on Trump by accepting minor guilty pleas from Michael Flynn and George Papadopoulos for making false statements, and by indicting Paul Manafort and an associate on charges that have nothing to do with Trump or the 2016 election.” McCarthy tells us straight out that’s not the way it works:
[I]f a prosecutor has an accomplice cooperator who gives the government incriminating information about the major scheme under investigation, he pressures the accomplice to plead guilty to the major scheme, not to an ancillary process crime — and particularly not to false-statements charges.
Strategically, and for public-relations purposes (which are not inconsequential in a high-profile corruption investigation, just ask Ken Starr), a guilty plea to the major scheme under investigation proves that the major scheme really happened — here, some kind of criminal collusion (i.e., conspiracy) in Russia’s espionage operation against the 2016 election. The guilty-plea allocution, in which the accomplice explains to the court what he and others did to carry out the scheme, puts enormous pressure on other accomplices to come forward and cooperate. In a political corruption case, it can drive public officials out of office.
Justice Department policy calls for prosecutors to indict a defendant on the most serious readily provable charge, not to plead out a case on minor charges to obtain cooperation.
[. . .]
Trading a plea on minor charges for cooperation is a foolish gambit that badly damages the prosecutor’s case. It suggests that the cooperator must not have disclosed details about the major scheme. Otherwise the prosecutor would have charged him with it. It implies that the prosecutor is so desperate to make a case on a major target that he gave bad actors a pass on serious charges — something experienced prosecutors know that juries hate.
It is even worse to plead accomplices out on false-statements counts. This establishes that the main thing the jury should know about the accomplice is that he is not to be trusted.
That should lead you, as it does McCarthy, that Mueller has no collusion case. After more than a year of intense hard ball investigation there is still no there there.
Since there is no collusion case, McCarthy tells us we can assume Mueller is primarily scrutinizing President Trump with an eye toward making a case of obstructing an FBI investigation:
Mueller’s theory appears to be straightforward: The FBI was investigating Russian meddling in the election and the possibility of Trump-campaign complicity in it. Even though Flynn’s interactions with Russian ambassador Sergei Kislyak did not amount to Trump-campaign collusion in Russia’s perfidy, they did show that the Trump transition was dabbling in foreign relations with the Putin regime (among other foreign governments) and was attempting to undermine the policy of the incumbent Obama administration — at least on the U.N. resolution condemning Israel. (On the sanctions Obama had imposed on Russia, Flynn made no commitments and encouraged his Russian counterpart not to escalate matters in retaliation, which, if anything, was supportive of Obama’s policy.)
[. . .]
Mueller would theorize, Flynn had a motive, for legal and political reasons, to lie about his contacts with the Russian ambassador. And because Flynn was taking direction from Trump-transition officials in connection with those contacts, President Trump had a motive to make the FBI’s Flynn investigation disappear. This motive, the theory goes, explains why Trump pressured Comey to drop the Flynn investigation, and why he ultimately fired Comey — a move that, the very next day, he told Russian diplomats was related to the pressure Trump had been facing “because of Russia.”
McCarthy points out that as president, Trump undeniable power to fire the FBI director. The president may not be prosecuted in a criminal judicial proceeding for exercising discretion. If Mueller tried to indict him, Trump would have unfettered discretion to fire Mueller and to direct the Justice Department to drop the case. There is a remedy if Congress believes this was an abuse of the president’s executive power — impeachment:
Obstruction of an FBI investigation may not be realistically prosecutable in court, but there is congressional precedent — in the Nixon and Clinton situations — for obstruction to be a “high crime and misdemeanor” triggering impeachment. Undoubtedly, abuse of the pardon power would also be an impeachable offense, even though it is not reviewable by the courts.
I continue to believe that this is the real danger for President Trump: A report by the special counsel, either through the grand jury or some other vehicle, concluding (a) that the president had obstructed the FBI’s investigation of Flynn and of Trump-campaign collusion with Russia, and (b) recommending that the matter be referred to Congress for consideration of next steps, potentially including impeachment and removal.
While the Conservative McCarthy makes the cases that Mueller is conducting an obstruction/impeachment investigation, Liberal constitutional and criminal law scholar Alan Dershowitz, who taught at Harvard for 44 years, explains that there is no case to be made President Trump for obstruction of justice. Dershowitz laid out his argument during an appearance on “Fox and Friends.” It boils down to one point:
You cannot charge a president with obstruction of justice for exercising his constitutional power.
You can watch Dershowitz make his case in the following video:
BRIAN KILMEADE: Really? Is that the way it is? Democratic Senator and Ranking Member of the Senate Judiciary Committee, Dianne Feinstein, who’s being primaried, by the way, claiming she sees an obstruction of justice case forming against President Trump. Is there actually a case? Let’s ask Harvard Law School professor, life-long Democrat, and author of “Trumped Up,” it’s out right now, Alan Dershowitz. Professor, is she right? Do you see a case for obstruction building?
ALAN DERSHOWITZ: No, I don’t. And I think if Congress ever were to charge him with obstruction of justice for exercising his constitutional authority under Article II, we’d have a constitutional crisis. You cannot charge a President with obstruction of justice for exercising his constitutional power.
[. . .]
DERSHOWITZ: For obstruction of justice by the President, you need clearly illegal acts. With Nixon, hush money paid, telling people to lie, destroying evidence. Even with Clinton they said that he tried to influence potential witnesses not to tell the truth. But there’s never been a case in history where a President has been charged with obstruction of justice for merely exercising his constitutional authority. That would cause a constitutional crisis in the United States, and I hope Mueller doesn’t do that, and Senator Feinstein simply doesn’t know what she’s talking about when she says it’s obstruction of justice, to do what a President is completely authorized to do under the Constitution.
KILMEADE: Right, so let me get specific, for example, going up to the Chairman of the Senate Intelligence Committee and saying to Senator Burr, ‘Hey, guys, can you wrap this up? Where are you at with this committee, can you wrap this up quick?’ Is that obstruction?
DERSHOWITZ: Of course not. The President has the authority to speak to Congress, tell Congress what he wants them to do, and Congress has the power to say, no, we have separation of powers. You can’t have obstruction of justice by each party under the separation of powers exercising their authority.
My colleague, Sarah Lee, took on this issue earlier today. She focused on the hullabaloo over Trump’s tweets this weekend which the anti-Trump folks claim made a case for obstruction of justice. Even McCarthy found the tweets problematical, But I side with Dershowitz — to impeach Trump is going to require a prosecutable crime.
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