Demo High Hopes for Mueller's Nothingburger
"Special Counsel Mueller is building a report, not a case," argues Andrew McCarthy.
Congressional Democrats (and Jeff Flake) hold exceedingly high expectations for Special Counsel Robert Mueller — enough to pursue legislation to neutralize President Donald Trump, who can send Mueller packing if and when he chooses. But as National Review’s Rich Lowry reminds us, any kind of pro-Mueller statute devised by Democrats is on dubious grounds:
Mitch McConnell just did our constitutional order an enormous favor by burying the so-called Robert Mueller protection bill, hopefully never to rise again. … The president is the chief executive, and like it or not, Trump is president. … If the president can fire the attorney general (the ill-used Jeff Sessions attests that he can), he certainly can fire Mueller. The attorney general is a much more important position than the special counsel.
In compelling Senate testimony, Yale law professor Akhil Amar explained the constitutional problems with the Mueller protection bill. One is that to be constitutional, the special counsel must be an inferior officer. Otherwise, he has to be confirmed by the Senate, which Mueller wasn’t. And if he’s an inferior officer, he can be fired. Mueller can’t be an inferior officer in some respects and a hypersuperior officer in others, enjoying protections from his ouster that even Cabinet officials don’t enjoy.
The other perplexing facet is that Democrats are conspiring to protect what still appears to be a nothingburger, at least in a legal sense. Recall that to date, the only connection Mueller has made between the 2016 election and Russia was included in his indictment of a handful of Russian hackers. But that meddling started a year before Donald Trump announced his candidacy, and the their objective was to foment discord, to undermine Amerian confidence in our electoral system, not to support Trump. But, arguably, after Trump’s upset election, the Democrat Party hysterics, bolstered by the accompanying Leftmedia histrionics and the epidemic of leftist Trump Derangement Syndrome, have done far more to undermine electoral confidence than Russia could ever have hoped to achieve!
Former federal prosecutor Andrew McCarthy says, “Special Counsel Mueller is building a report, not a case.” From his legal point of view, “No prosecutor builds a case the way Mueller is going about it. What prosecutor says, ‘Here’s our witness line-up: Michael Flynn, George Papadopoulos, Alex van der Zwaan, Rick Gates, Paul Manafort, Michael Cohen. And what is it that they have in common, ladies and gentlemen of the jury? Bingo! They’re all convicted liars.’”?
For a prosecutor, like any trial lawyer, what the jury thinks is at least as important as what the law says. If the most memorable thing the jury takes into the deliberation room is that no one should believe a word your witnesses say, you are not going to convict the lowliest grifter, much less the president of the United States of America. As a prosecutor, you build a case by having your cooperating accomplice witnesses plead guilty to the big scheme you are trying to pin on the main culprit. After all, what makes these witnesses accomplices, literally, is that they were participants in the main culprit’s crime. That’s the scheme you’re trying to prove. … In short, you build a case by first establishing the foundational criminal offense. Juries do not convict people because they like or trust the prosecution’s witnesses. They convict because they are persuaded that justice demands redress for a real crime.
McCarthy believes that Mueller “is not going to indict the president, which would precipitate a trial at some point. The convicted liars are not going to be jury-trial witnesses, so Mueller is not concerned about their lack of credibility. The report will detail disturbing — and thus politically damaging — connections between Trump associates and Kremlin cronies. But there will be no collusion crime, and thus no charges and no need for witnesses.”
Unfortunately, Mueller’s conclusion won’t quell the Left’s politicking. Far from it.