RUTHFULLY YOURS

According to a report in the Washington Post, “Special counsel Robert S. Mueller III informed President Trump’s attorneys last month that he is continuing to investigate the president but does not consider him a criminal target at this point.” In other words, while Mr. Mueller still considers the president a subject of investigation, he has concluded, after nearly 11 months looking for something solid to use against President Trump, that he does not have enough evidence to charge the president with conspiring to collude with the Russians to interfere in the 2016 presidential election or, for that matter, with any other crime. Despite having gathered hundreds of thousands of documents for review, interviewed multiple witnesses, and gained guilty pleas for conduct unrelated to the Russian collusion investigation itself in return for full cooperation, Special Counsel Mueller has admitted that he lacks substantial evidence linking President Trump to the commission of any crime. Ironically, this matches the conclusion of former FBI Director James Comey himself before President Trump fired him.

While this development is obviously welcome news to President Trump, he is not entirely out of the woods yet. The Washington Post article added that Mr. Mueller informed the president’s lawyers that “he is preparing a report about the president’s actions while in office and potential obstruction of justice.”

The special counsel could suggest in his report that President Trump may have had a “corrupt intent” to interfere with the Russian collusion investigation by firing Comey, for example, or by asking Comey to go easy on former National Security Adviser Michael Flynn, but has not accumulated enough evidence yet to go forward with an indictment. Not only would the special counsel’s discussion along such lines in his report heighten calls for extending the special counsel’s mandate indefinitely, for further congressional investigations and for impeachment. Such a report would place more pressure on the president to submit to an interview with the special counsel or a high-level member of his team. President Trump has indicated a willingness to consider such an interview against the advice of John Dowd, the lawyer who had led the president’s legal team dealing with the Mueller investigation until he resigned last month. If the president does agree to an interview, he needs to tread very carefully to avoid falling into a perjury trap or saying something that the Mr. Mueller can use as evidence of the “corrupt intent” necessary to make a credible case of obstruction of justice against the president.

However, unless the president says something during such an interview to hang himself, there is nothing on the public record that would justify a charge of obstruction of justice against the president, whether before a grand jury or in an impeachment proceeding. There is no evidence we know of that President Trump acted himself to destroy or withhold relevant evidence or that he directed anyone else to do the same, as Richard Nixon was accused of doing. There is also no evidence we know of that President Trump told any witnesses to commit perjury, as Bill Clinton was accused of doing.

Moreover, it is turning the rule of law upside down to criminalize the president’s exercise of his constitutional authority as the government’s top executive officer to fire a member of the executive branch, including an FBI director. In any case, the FBI’s investigation of possible Russian collusion with then presidential candidate Trump or his campaign aides to interfere in the 2016 presidential election has proceeded without any disruption. Nor is there anything legally wrong with the president simply expressing his opinion that the special counsel investigation has become a witch hunt or his urging the FBI director to consider being lenient with a particular suspect.

“[T]here’s no credible case because under the Constitution a president cannot be charged for merely exercising his constitutional authority under Article 2,” according to attorney and constitutional scholar Alan Dershowitz. Professor Dershowitz added that “if the president simply exercises his constitutional authority, namely firing an underling, which he’s entitled to do; telling the FBI not to investigate a particular person, which he’s entitled to do; pardoning people, which he hasn’t done yet; thinking about whether he should fire the special counsel – that’s not obstruction of justice under the Constitution. It would create a constitutional crisis and a separation of powers issue if a president were ever charged with merely exercising his constitutional authority because the prosecutor didn’t approve of his motive. Everybody has mixed motives and to start creating thought crimes out of a president’s motives would create a serious constitutional conflict.”

Special Counsel Mueller’s investigation has only lasted this long because Deputy Attorney General Rod Rosenstein secretly expanded the scope of his mandate, ten weeks after Mr. Mueller’s May 17, 2017 appointment, to include matters unrelated to any allegations of Russian interference in the 2016 presidential election itself. It was only after Deputy General Rod Rosenstein’s secret expansion of the special counsel’s jurisdiction that Mr. Mueller was free to go after Paul Manafort, who served briefly as Donald Trump’s campaign manager, for his decade-old business dealings with a Russian-backed Ukrainian political party. This included the alleged involvement of Mr. Manafort’s company in a lobbying campaign that ended in 2014 and Mr. Manafort’s tax filings through 2014, all of which preceded Donald Trump’s entry into the 2016 presidential race.

Notably, Mr. Manafort was not charged with any crimes linked directly to the alleged Russian meddling in the 2016 election. Obviously, Mr. Mueller’s team was using the charges against Mr. Manafort and his associate Richard Gates as leverage to pressure them into cooperating in the investigation against President Trump. Mr. Gates has since pleaded guilty to lesser charges and is said to have been cooperating. Even so, Mr. Mueller has admitted he has nothing yet with which to criminally target President Trump.

Special Counsel Mueller’s investigation also produced a guilty plea by President Trump’s former National Security Adviser Michael Flynn for lying to the FBI. Again, the special counsel’s team was looking to possibly flip a key player against President Trump. It appears that the special counsel’s team was over-zealous in not providing Mr. Flynn’s defense counsel with potentially exonerating evidence to which it was entitled. In any case, Mr. Flynn’s guilty plea last December and promise to cooperate have evidently borne no fruit to use against the president.

This is not to say that Mr. Mueller has completely wasted his time and taxpayers’ money. For example, as a result of his investigation, the Department of Justice brought charges against 13 Russian nationals and three Russian entities for allegedly conspiring to interfere with “US political and electoral processes, including the presidential election of 2016.” The charges focused on engaging in propaganda to hurt Hillary Clinton’s campaign and help Donald Trump’s candidacy. George Papadopoulos, a former Trump campaign foreign policy adviser, has pleaded guilty to making false statements about his contacts with Russians to investigators. Dutch attorney Alex van der Zwaan, who admitted to lying to FBI investigators regarding his contacts with Gates and a suspected Russian intelligence operative with ties to Gates and Manafort, is the first individual charged as part of the Mueller investigation to have received a sentence – 30 days in federal custody and a $20,000 fine.

The special counsel’s office spent more than $3.2 million during the period from May 17, 2017 through September 30, 2017 alone according to a Statement of Expenditures it filed with the Department of Justice. It has spent more per day than the entire $20,000 fine it has garnered thus far for all its efforts. It’s been nearly 11 months since Special Counsel Mueller was appointed. In all that time, neither President Trump nor any other American has been charged with being a witting participant in colluding with the Russians to interfere in the 2016 presidential election, which was supposed to be the purpose of the special counsel investigation in the first place. It is time for Special Counsel Mueller to either immediately bring such charges with the mass of evidence he has already accumulated, or wind down the investigation and produce his final report. Enough is enough!