DOWN THE LEGAL RABBIT HOLE

Okay, the great Sphinx has spoken, and assured us he will not speak again.

But what Mueller did say makes the brain reel. While it is true that everything in his nine-minute talk was in his 428-page report, this time he gave us the Mueller headlines as opposed to the fake news Barr headlines. Here are Mueller's main points:

1. The Russians screwed with our 2016 election, and they did it to screw over Hillary Clinton.

2. Mueller did not say there was no collusion. He said he did not uncover sufficient evidence under the Penal Law to charge any American with criminal conspiracy with the Russians. That, my friends, is a lot different, and leaves a lot of work for Congress. For example, while there may not be evidence of Penal Law guilt beyond a reasonable doubt of criminal conspiracy, is it okay for a candidate for President to know of the Russians’ helpful criminal conduct and just sit back and enjoy it, say nothing to the authorities, and maybe even lie about it to the public? That is a question for Congress to pursue.

3. Mueller did not say there was no evidence of Presidential obstruction of justice. To the contrary, he repeated: If we had found there was no obstruction of justice, we would have said so. We did not say so.

4.  Then listen to this piece of rabbit hole logic:  DOJ policy -policy-- not a statute, not a court decision--policy says we cannot indict a sitting President,  therefore even if we had found evidence of obstruction, we could not say so because, it would be "unfair" to the President, who, without an indictment and trial, would lack a forum in which he could prove he was not guilty!

Let me repeat that Mueller argument: Even if we had found the President was guilty of a crime, we couldn't say so, because since we could not indict him, it would be unfair to him to say he was guilty of a crime without indicting him, which we couldn't do under DOJ policy!

If you think that is absurd, you are not alone.

Furthermore, the same logic would apply to collusion. Mueller is saying that even if he had found evidence of Penal Law conspiracy between the President and the Russians, Mueller couldn't say so because he couldn't indict the President.

Kinda makes the whole idea of appointing a special prosecutor ridiculous, non? A eunuch-prosecutor who can not prosecute, and can't even opine on guilt. The only thing he can do is say "Not Guilty."

Finally, and you heard it here first: The entire DOJ policy is bullshit. It is based on two Office of Legal Counsel opinions, one in 1973 and the other in 2000.

For openers, let us not forget that the OLC is part of the Department of Justice, the leadership of which is appointed by the incumbent President.

The 1973 opinion was the result of the Agnew defense team asserting that a sitting Vice President was immune from prosecution. Our claim was based on Constitutional language that implied but did not explicitly say that.

The 1973 OLC opinion was corrupt. More on that later.

In 2000, the President was Bill Clinton, and the question was whether he could be indicted for perjury. You would be shocked to learn that the opinion writer in the Clinton Department of Justice opined the answer was "No." He relied, in part, on the corrupt 1973 OLC opinion.

Inasmuch as 1973 seems to the foundational document for this policy, it is worth some closer examination.  As earlier reported here, J.T. Smith, the Executive Assistant for Attorney General Elliot Richardson, recently revealed that the OLC lawyer assigned to the matter could not find a clear answer to the question of Veep immunity, so the opinion-writer asked what answer Richardson wanted. Smith told him the AG wanted him to conclude Agnew was NOT immune. Not surprisingly, that is what the OLC lawyer did, though he added to his opinion his dictum that President Nixon was immune!

Recently uncovered evidence adds to the proof that Richardson himself did not believe there was Constitutional language supporting the OLC conclusion. Neither did others in the White House. More on that in another chapter.

Bottom line, if we are going to let Presidents decide, via their political appointees, whether Presidents can be indicted, we are going to get absurd results like this one, every time.

Is that what the Founders foresaw? Appointing powerless Special Prosecutors whose only function is to oblige the President by declaring him "Not Guilty," thereby passing the buck to Congress, and then having the President adopt a broad policy of stonewalling and frustrating Congress's power to inquire?

Now my head is spinning as much as yours.

A bientot.

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