Commentary: Mueller Report disappointing for Democrats

That Democrats are not happy with Special Counsel Robert Mueller’s report goes without saying.

These folks have spent more than two years in the sure knowledge that Mueller’s team would find evidence that President Trump and/or his campaign staff conspired and colluded with Russia to tip the election to Trump and against Hillary Clinton.

Then after said investigation was under way, they also savored the conclusion that the president had obstructed justice in various ways, mainly by his decision to fire FBI Director James Comey.

Reid K. Beveridge

Let’s talk about collusion first. This allegation was mainly hatched in the days immediately following the 2016 presidential election by Mrs. Clinton and her senior advisers. Remembering back two and a half years, recall that very few Americans through Mrs. Clinton would lose. It was simply unthinkable. Unthinkable that the American people would actually vote for a man like Donald J. Trump.

Further, remember that the Clinton campaign had hired a convention center in Manhattan for the victory party. It had purchased lots of fireworks to light up the Hudson River in celebration. The TV images from election night were classic. These were the faces of disbelief. The faces of shock and despair. Tears were rolling down cheeks.

Mrs. Clinton didn’t even bother to come out to console her supporters that night. It was somewhat similar to election night 1980 when Ronald Reagan defeated President Jimmy Carter. Except that that night, the Carter people at least knew the polls had turned against them. In 2016, not many predicted that Trump would carry Pennsylvania, Wisconsin and Michigan not to mention Ohio, North Carolina and Florida. Mrs. Clinton had been thought to be leading in all those states.

But no collusion. Not to mention that collusion is not a crime. It may be politically fatal. It might rise to the definition of “high crimes and misdemeanors” and therefore an impeachable offense in the eyes of some. But not a crime.

So let’s turn to obstruction of justice. Now that’s a crime, but a crime that can be difficult to prove. For one thing, it requires proof of intent. Here, the Mueller report – as quoted by Attorney Gen. William Barr – takes an interesting turn. Mueller discusses this situation but comes to no conclusion whether to prosecute it. He leaves that decision to Barr.

Based on what we know today, this would seem to indicate a division of opinion among Mueller’s staff (of 19 prosecutors). This leads us to two points.

First, the Justice Department has a rule or policy saying that a sitting president cannot be indicted (and hence, prosecuted). Presumably, he could be after leaving office. But not while in the White House. This was the basis of President Ford’s pardon of Richard M. Nixon in 1974. The idea was that the Independent Prosecutor (not the same as a special counsel) might try to indict and try Nixon after his resignation.

Second, it is quite unclear whether any of Trump’s actions represent obstruction. The main one here is the firing of Comey. But as numerous constitutional scholars have pointed out, the president, any president, can fire any appointed official in the executive branch for any reason or no reason.

The FBI is a part of the Justice Department. The Justice Department is a part of the executive branch. Comey reported to the attorney general. The attorney general reports to the president. If the FBI director dislikes some directive from the president, he has two choices. Obey or resign. Or if refusing to obey, to be fired.

A further aspect of this scenario is the meeting between Trump and Comey shortly after the inauguration. Trump asks Comey to go easy on former national security adviser Michael Flynn. Honorable people can disagree whether the wording of this exchange, as quoted by Comey, represents an order or a “hope.” Hope was the word Trump used, according to Comey.

Comey made a written record of this meeting, which he then leaked (through a Columbia University law professor) to the New York Times. Which leads to the flip side of this tale – that Comey committed a crime by leaking the memo because any conversation between the president and a subordinate is classified.

In any event, Mueller left the obstruction decision to Barr. Barr along with Deputy Attorney Gen. Rod Rosenstein quickly concluded it was not prosecutable.

We conclude with the hope that Barr will release as much of the full Mueller report as possible. Not releasable will be grand jury information, information about ongoing prosecutions in New York City and other places and national-security information. Democrats from the leadership on down are already demanding every word, jot and tittle. They won’t get it.

Which means House Democrats, now in the majority, will press on in their investigations. The question then is this: How much more “investigation fatigue” will Americans tolerate?

Reid Beveridge has covered politics in Texas, Iowa, Wisconsin, Delaware and Washington, D.C. He is now retired at Broadkill Beach.

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