Kenneth Starr: Trump Should Not Fire Robert Mueller

In common parlance, a made man is someone whose path to success was greased by circumstances. It also refers to someone formally inducted as a full member of a criminal outfit — the Mafia.  In the political atmosphere in which Robert Mueller was born, he, like John Kerry, was virtually assured of a prestigious place in society: He was a tall white man with a hatchet jaw who (like his classmate Kerry) went to an expensive private school – St. Paul’s — and came from a well-connected and well-off family.

His wife, Ann Cabell Standish Mueller, is related to Charles Cabell, once deputy director of the CIA.  Richard Bissell, formerly the CIA’s director of plans, is his cousin. Both men were fired by President Kennedy for their roles in the Bay of Pigs fiasco.

His own public service career includes a number of spectacular failures as well:

He kept four innocent men in jail for years (one for 35 years) to protect the vicious criminal Whitey Bulger, who had at times been an FBI informant.

Ripping FBI special counsel Robert Mueller as a political “zealot,” Harvard law professor emeritus Alan Dershowitz reminded staunch Mueller supporters about the former FBI director’s role in protecting “notorious mass murderer” Whitey Bulger as an FBI informant.

“I think Mueller is a zealot,” Dershowitz told “The Cats Roundtable” on 970 AM-N.Y. “…I don’t think he cares whether he hurts Democrats or Republicans, but he’s a partisan and zealot.

“He’s the guy who kept four innocent people in prison for many years in order to protect the cover of Whitey Bulger as an FBI informer. Those of us in Boston don’t have such a high regard for Mueller because we remember this story. The government had to pay out tens of millions of dollars because Whitey Bulger, a notorious mass murderer, became a government informer against the mafia…

“And that’s regarded in Boston of one of the great scandals of modern judicial history. And Mueller was right at the center of it. So, he is not without criticism by people who know him in Boston.”

He bungled the anthrax case (along with James Comey) so that one man — whom it is far from certain was responsible — killed himself and a clearly innocent man, Steven Hatfill, underwent incredible harassment and career destruction based on the flimsiest of evidence and the government (that is the taxpayers) again was forced to pay him millions in recompense.

Under his watch at the FBI, that agency and the Department of Justice’s criminal division framed Senator Ted Stevens and failed to stop the Boston bombing even though the Russians had warned them of the perpetrators in advance.

There’s more, of course, but is there any doubt in your mind that only a made man could have such a history of flops and still be considered for further high public office?

In the past weeks he tried to outsmart Attorney General William Barr. He’d earlier tried to sandbag Barr into not revealing the gist of his very flawed report. He delayed redacting the grand jury testimony in the belief that he would get the first public statement on the report. Barr outfoxed him by releasing a summary after first offering it to Mueller, an offer he refused.

This fiasco should be the last of his blundering career.

Clearly unhappy that Barr had exposed the 2½ year investigation as an expensive, partisan sham when he released early his summary of it, Mueller called a no-questions-allowed presser in which he unethically tried to muddy the waters again on obstruction, tarring the president with tales of suspicious (in his mind) behavior instead of evidence of wrongdoing. He was nervous, never departed from a written text, which he stumbled over reading. It appeared he was unfamiliar with its contents and at times appeared to be a hostage of some outside forces. He did all but blink an SOS.

The gist of his halting presentation was the implication that but for the DoJ policy that a president cannot be indicted, he had ample evidence of obstruction.

Barr batted that back.

If you read nothing else this week read this transcript of the interview by CBS’ Jan Crawford of the attorney general:

Two exchanges in particular are noteworthy. In this one he sweeps away the suggestion that the department’s rules precluded Mueller from concluding the president obstructed justice:

JAN CRAWFORD: Was there anything that would’ve stopped him in the regulations or in those… that opinion itself, he could’ve — in your view he could’ve reached a conclusion?

WILLIAM BARR: Right, he could’ve reached a conclusion. The opinion says you cannot indict a president while he is in office but he could’ve reached a decision as to whether it was criminal activity but he had his reasons for not doing it, which he explained and I am not going to, you know, argue about those reasons but when he didn’t make a decision, the Deputy Attorney General Rod Rosenstein and I felt it was necessary for us as the heads of the Department to reach that decision. That is what the Department of Justice does, that is why we have the compulsory powers like a grand jury to force people to give us evidence so that we can determine whether a crime has committed and in order to legitimate the process we felt we had to reach a decision.

JAN CRAWFORD: Well, I mean, he seemed to suggest yesterday that there was another venue for this and that was Congress.

WILLIAM BARR: Well, I am not sure what he was suggesting but, you know, the Department of Justice doesn’t use our powers of investigating crimes as an adjunct to Congress. Congress is a separate branch of government and they can, you know, they have processes, we have our processes. Ours are related to the criminal justice process we are not an extension of Congress’s investigative powers.

In the second quote, he was being generous to both Mueller and Comey:

Sometimes people can convince themselves that what they’re doing is in the higher interest, the better good. They don’t realize that what they’re doing is really antithetical to the democratic system that we have. They start viewing themselves as the guardians of the people that are more informed and insensitive than everybody else. They can — in their own mind, they can have those kinds of motives. And sometimes they can look at evidence and facts through a biased prism that they themselves don’t realize.

I say generous because I think a better characterization would be that these people regularly have masked self-interest and partisanship as “higher interest.”

In any event, a number of people quickly concluded that there was a conflict between Mueller’s recitation of how the department policy tied his hands and Barr’s  claim that it clearly did not. Nonetheless, Mueller had repeatedly conceded — and there were witnesses to that concession — that the Office of Legal Counsel’s longstanding policy of not indicting a president  had never precluded him from determining the president had criminally obstructed justice.

Shortly after the Barr interview, Mueller and Barr released a joint statement in which Mueller clearly backtracked from the calumny in his presser:

Former Special Counsel Robert Mueller released a joint statement with Attorney General William Barr Wednesday evening; raising even more questions over his unusual press conference that fueled Democrats’ calls for impeaching President Trump.

“The Attorney General has previously stated that the Special Counsel repeatedly affirmed that he was not saying that, but for the OLC opinion, he would have found the President obstructed justice. The Special Counsel’s report and his statement today made clear that the office concluded it would not reach a determination -one way or the other- about whether the President committed a crime. There is no conflict between these statements,” said a joint press release from Barr and Mueller’s offices.

Nothing in the memos even remotely bars a special counsel from reaching conclusions on the basis of possible criminal charges. Indeed, the memos accept that the Justice Department needs to establish such evidence to preserve a record for possible later charges. That is why Mueller was told by his superiors that there was no policy barring him from finding criminal conduct, only the policy against indicting while the president is in office. Even if you twist the memos to suggest some prohibition to reaching conclusions on criminal conduct, that debate should have ended when his two superiors, the attorney general and deputy attorney general, told him there was no such policy and asked him to reach a conclusion.

So it is clear that the song and dance in his presser was intended only to leave a cloud of suspicion over the White House. If he’d had any evidence of wrongdoing he was free to — in fact, encouraged — to so state that.

The editors of the NY Sun observed that the Mueller “swan song illustrates nothing so much as the constitutional illogic of having a special prosecutor set up to investigate the president in the first place.” The editors continue with an argument with which I fully agree:

It is not a partisan thing with us. We have been arguing since the days of Nixon against anything that smacks of independence from the president of any prosecutor. It was our view when Judge Walsh was sicced on Presidents Reagan and George H.W. Bush, during Judge Starr’s long pursuit of President Clinton, and Mr. Mueller’s mission against President Trump.

All these probes or prosecutions were crosswise with the logic of the Constitution. Only the president is authorized and required to take care that our laws be faithfully executed. To ensure he is able to do that, only the president is given the power to commission the officers of the United States. It is why there is a grant of authority to the Representatives House to investigate a president and forward to the Senate articles of impeachment.

It is also why the Framers established that “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” Yet it’s why they also established that if a president is removed from office through impeachment, his immunities end and he “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

And here we get to the nub of it — the Democrats hoped that they could use the Special Counsel and his biased staff to do the work for them in their drive to impeach a president whose only failing was beating their candidate.

In another article I strongly urge you to read in its entirety, David Rivkin and Elizabeth Price Foley explain that Congress cannot outsource impeachment and use Mueller’s probe to do their job:

Yet if there is a constitutional crisis, its source is the Democrats. They are abusing the powers of investigation and impeachment in an illegitimate effort to unseat a president they despise.

Congressional Democrats claim they have the power to investigate the president to conduct “oversight” and hold him “accountable.” That elides an important constitutional distinction. As the Supreme Court said in Watkins v. U.S. (1957), Congress may “inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government.” Executive departments and agencies are created by Congress and therefore accountable to it. The president, by contrast is not a creature of lawmakers. He is Congress’s coequal, accountable to Congress only via impeachment.

To commence impeachment, the House has a constitutional obligation to articulate clear evidence of “high crimes and misdemeanors.” A two-year Justice Department investigation did not find that Mr. Trump had committed crimes. [snip]

House Democrats claim they’re entitled to see Mr. Mueller’s underlying materials. But Congress may not use its subpoena power for a prosecutorial do-over… Turnover of prosecutorial materials would allow Congress to hide behind the fact-finding and legal determinations of the other branches, thereby diminishing its own political accountability. Because the nation’s law-enforcement officials have concluded Mr. Trump has not committed any crimes, Democratic representatives cannot legitimately draft articles of impeachment accusing him of criminal conduct involving the same offenses of which he was cleared by the Mueller investigation.

I can see where they’d figure this was okay: They’ve outsourced much of their legislative responsibilities to partisan judges and the administrative bureaucracy and figure collecting campaign donations and reading statements drafted by their staffs to complaisant reporters is the limit of their responsibilities — that is, when they aren’t trying to run the White House from the bowels of the DNC. In truth, they hoped Mueller would throw enough mud on the president that they could continue to hamstring him and vote to impeach without any evidence to warrant it. Mueller failed them and covered himself, not the president, in slime.

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