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What Congress Should Learn from the Mueller Report

The Mueller Report is complete. But that is the only thing that we, the American people, really know about the report’s findings at this moment.

Beyond the announcement of the report’s submission to the Attorney General Barr and his subsequent letter outlining the report’s “principal conclusions” everything else is pure conjecture and interpretation.

When President Donald Trump trumpets that he is “completely exonerated” his statement contradicts the actual words of his own attorney general. AG Barr’s letter wrote “while this report does not conclude the president committed a crime” (Obstruction of Justice),” it also does not exonerate him”.

Nor does the attorney general’s letter “exonerate” the president and his team of the crime of conspiracy (with Russians) in the 2016 election. Again, attorney general wrote, the report says “The investigation did not establish” (emphasis added) “that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

The word establish is very important here. According to Webster establish means:

  1. Settle – to make firm or stable
  2. To gain full recognition
  3. To put beyond doubt

The word “establish” is not a synonym for exonerate which Webster defines as: clear from accusation or blame.

After watching a myriad of legal analysts dissect every possible leak, hint, heavily redacted legal document released, etcetera over the past 22 months, I’m going to do a little legal conjecturing of my own.

The use of the words “did not establish” may mean Special Counsel Mueller and his team found evidence of inappropriate conduct by the Trump Campaign but not sufficient evidence to bring a criminal complaint – i.e. they did not believe the factual evidence “proved the (conspiracy) case beyond a reasonable doubt”.

A Case for Constitutional Overreach?

As to the grey area between the president’s executive authority and the potential use of that authority to obstruct justice, the attorney general’s letter tells us the Mueller Report “does not exonerate” the president. The only logical conclusion is the special counsel found evidence of obstructive behavior but not “proof beyond a reasonable doubt” that President Trump intended to interfere with the investigation.

The President’s own lawyers have acknowledged they’ve long felt this was the potential area of greatest risk.

It was lost on no one that Richard Nixon’s resignation was forced when Special Prosecutor Leon Jaworski found four separate, provable, “criminal” acts of obstruction of justice by the president during the Watergate investigation and relayed his findings to a bi-partisan House Judiciary Committee.

Until the Mueller Report is released, Congress and the rest of us will not know – if then – the exact reasoning behind the special counsel’s decision not to decide this issue. I doubt that it was that he wanted to “kick it upstairs” to Attorney General Barr.

The attorney general’s insertion of his own opinion that Mueller “leaves it to the attorney general to determine whether the conduct described” … “constitutes a crime” strikes me as unnecessary – even, perhaps, Constitutional overreach.

It is not up to the Judicial Branch of our government to determine guilt or innocence – it is a jury of our peers.

In this case of the president, the Constitution makes it quite clear the jury of his/her peers is the Congress of the United States.

Role of the Special Counsel

Only three presidents since Richard Nixon have escaped becoming embroiled in a scandal that grew into a call for an independent investigator/investigation: Gerald Ford, Jimmy Carter and Barack Obama. Of these only Obama was a two term president.

A special counsel from outside the Department of Justice is appointed when the normal prosecutors cannot conduct the necessary investigation because the person (or persons) being investigated have direct authority over the normal investigator.

Following the firing of James Comey by President Trump, the president’s own statements conflated the firing and pressure on him re: “this Russia thing” raised questions of his intent in the minds of both leaders in Congress and the Justice Department. Deputy Attorney Rob Rosenstein, who had been involved in the Comey firing, could not, then, act as independent arbiter in this situation. The need for a special prosecutor was obvious.

But how “independent” is a special counsel who reports to the attorney general – who is appointed by president? That’s a question that is pending in real time as Attorney General Barr works with the special counsel to prepare his final report for publication.

The attorney general has announced that a redacted version of the report will be released simultaneously to Congress, the public and the White House.

The redactions the attorney general enumerated make sense before the public release of the report — given the sensitive national security issues involved in this investigation.

But this decision flies in the face of previous special prosecutor and special counsel investigations. In every previous case, the congressional committees of jurisdiction have received unredacted copies of the final report and all the evidence that supports the report. In those cases, Congress has been the body to make necessary National Security and other redactions from the report before public release.

Further, Attorney General Barr announced he had spoken with both Republican Chairman of the Senate Judiciary Committee, Lindsey Graham, over dinner and Democratic Chairman of the House Judiciary Committee, Jerold Nadler, briefly over the telephone, concerning the time and manner of the release of the report – raising suspicions of partisanship in the redaction process.

We would all be more confident that all the facts will be made public if the “Gang of 8” had received an unredacted version of the report last weekend when the attorney general published his first “status of the review” letter to the public.

But sadly – like so much of our politics today – there wasn’t enough trust among our elected leaders to have allowed such a seemingly normal process to occur.

It will be an injustice to the American people if a partisan lack of trust taint’s the report rather than strengthening our faith in our judicial institutions.

Public confidence can be increased with a change in the special counsel regulations insuring the “Gang of 8” is the initial recipient of future reports should they be needed.

Congress cannot allow the executive branch to “adopt regulations” intended to insulate itself from the forceful congressional oversight the Founding Fathers enumerated in Article One of the Constitution.

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