James Shott / June 4, 2019

At Long Last, This Investigative Exercise Is Over. Or Is It?

Now that Special Counsel Robert Mueller has concluded his investigation, submitted his report to Attorney General William Barr, and spoken publicly about the report, that more than two-year, $35 million investigation is over and done.

Now that Special Counsel Robert Mueller has concluded his investigation, submitted his report to Attorney General William Barr, and spoken publicly about the report, that more than two-year, $35 million investigation is over and done.

Personally, upon Mueller’s appointment as special counsel, my reaction was decidedly negative. Not because of Mueller himself, who was widely praised, but of the position of special counsel itself. The record of special counsels or independent counsels or special prosecutors, etc., is spotty, at best, and has at times been a significant blot on the concept of justice for all and the rule of law.

Someone who takes on this challenge is taking a chance and will be judged on his or her results. They cannot afford to fail. If there aren’t 10, 20, or 100 relevant indictments or pleas, the individual’s reputation will take a big hit. This potential result must have a significant influence on how the ensuing investigation transpires.

History has shown that special-counsel investigations are often a license for misfeasance, mischief, and less-than-honorable conduct of the special counsel’s staff.

On that score, my negative response was the correct one.

A special counsel is supposed to be assigned to investigate a known crime when the independence of the people who usually investigate these crimes in the Department of Justice may be in question.

But there was no known crime for Mueller to investigate; his job was to investigate to see if he could find a crime, which was generally imagined to be collusion between Donald Trump and the Russian effort to affect the outcome of the 2016 election, which Trump won in the traditional manner.

There was criticism of the investigative Team Mueller assembled. The UK Daily Mail reported: “The 16 lawyers known to be operating the Russia probe have previously been found to have made $62,000 in contributions to Democrats but just $2,750 to Republicans, based on Federal Election Records.” The team’s objectivity was suspect.

The special-counsel investigation did result in some indictments and guilty pleas. Those indicted in the Russian affair were Russian nationals who will never be put on trial. Most other indictments and pleas were for process crimes or wrongs committed years ago that were unrelated to the campaign and the election, therefore irrelevant to the matter at hand.

Now that the search for a crime is over, Attorney General Barr stands accused of behaving like “the president’s lawyer.” Consider, however, that the attorney general heads the Department of Justice, an administrative department. As such, the attorney general works for and reports to the president of the United States, Donald Trump.

According to the Department of Justice website, “The Attorney General represents the United States in legal matters generally and gives advice and opinions to the President and to the heads of the executive departments of the Government when so requested.”

Mueller has filed his final report with Attorney General Barr, as he was supposed to do; has closed his office; and held a news conference to comment on the completion of his work.

After all the hoopla of the investigation, Trump supporters hold the same opinion of the investigation as they did at the beginning, and Trump foes hold the same opinion of Trump as they did before. No Trump crimes were charged and little of relevance was accomplished.

Alan Dershowitz is professor emeritus at Harvard Law School, self-identifies as a Democrat who voted for Hillary Clinton, but is one of those who can step beyond political affiliation and look objectively at legal situations. 

In a May 29 op-ed for The Hill, Dershowitz cited former FBI Director James Comey’s improper comments about Hillary Clinton and her team’s mishandling of classified information.

“Mueller, however, did even more,” he wrote. “He went beyond the conclusion of his report and gave a political gift to Democrats in Congress who are seeking to institute impeachment proceedings against President Trump. By implying that President Trump might have committed obstruction of justice, Mueller effectively invited Democrats to institute impeachment proceedings. Obstruction of justice is a ‘high crime and misdemeanor’ which, under the Constitution, authorizes impeachment and removal of the president.”

Dershowitz continued: “Until today, I have defended Mueller against the accusations that he is a partisan. I did not believe that he personally favored either the Democrats or the Republicans, or had a point of view on whether President Trump should be impeached. But I have now changed my mind. By putting his thumb, indeed his elbow, on the scale of justice in favor of impeachment based on obstruction of justice, Mueller has revealed his partisan bias. He also has distorted the critical role of a prosecutor in our justice system.”

Perhaps this will at last bring about the end of special counsels. Lives are ruined and crimes created in the special counsel’s efforts to avoid failure. As Dershowitz said, witnesses are bullied to “sing or compose” when under oath, creating process crimes that cost thousands to defend against and ruin the lives of persons involved.

This lies well beneath the ideal of American justice.

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