Friday, June 7, 2019

When The Rule Of Lawyers Replaces The Rule Of Law, You Get The Mueller Report

Robert Mueller's investigation into alleged Russian meddling in the 2016 election was supposed to be the definitive, objective, non-partisan word on the matter.

Now we are learning that it was neither objective nor non-partisan, and its findings are proving to be anything but definitive.

The latest crucial failing of the Mueller Report comes courtesy of Jon Solomon, writing in The Hill about the reports deliberate and egregiously inaccurate mischaracterization of Ukranian businessman and Paul Manafort associate Konstantin Kilimnik as a Russian intelligence asset, when the truth was that Mr. Kilimnik has been an American intelligence asset--and an extremely valuable one at that:
In a key finding of the Mueller report, Ukrainian businessman Konstantin Kilimnik, who worked for Trump campaign chairman Paul Manafort, is tied to Russian intelligence.

But hundreds of pages of government documents — which special counsel Robert Mueller possessed since 2018 — describe Kilimnik as a “sensitive” intelligence source for the U.S. State Department who informed on Ukrainian and Russian matters.
How sensitive an asset was Kilimnik? Sensitive enough to meet several times a week with the chief political officer in the US Embassy in Kiev.  Sensitive enough to meet with top level State Department officials. Sensitive enough to present a peace plan for the conflict between the Ukraine and Russia to the Obama administration in 2016.  

In other words, pretty sensitive.

How did Mueller characterize Konstantin Kilimnik? Judge for your self--from Page 6 of the Mueller Report (emphasis added):
Separately, on August 2, 2016, Trump campaign chairman Paul Manafort met in New York City with his long-time business associate Konstantin Kilimnik, who the FBI assesses to have ties to Russian intelligence. Kilimnik requested the meeting to deliver in person a  peace plan for Ukraine that Manafort acknowledged to the Special Counsel's Office was a "backdoor" way for Russia to control part of eastern Ukraine; both men believed the plan would require candidate Trump's assent to succeed (were he to be elected President). They also discussed the status of the Trump Campaign and Manafort's strategy for winning Democratic votes in Midwestern states. Months before that meeting, Manafort had caused internal polling data to be shared with Kilimnik, and the sharing continued for some period of time after their August meeting. 
Keep in mind that this is coming from a report that found no evidence of any "collusion" between the Trump Campaign and Russian intelligence. 

Keep in mind also that this comes after an earlier disclosure that the report altered the transcript of a voicemail left by Trump lawyer John Dowd to Lt. General Michael Flynn's attorney, as well as substantial allegations the Mueller team mischaracterized another interaction, between Trump attorney Michael Cohen and one Giorgi Rtskhiladze, going so far as to splice multiple recorded conversations together to form a telephone discussion that, according to Rtskhiladze's lawyers, is simply false. Keep in mind also that, despite Mueller's public statement that Department of Justice policy precluded even thinking about indicting Donald Trump, Attorney General William Barr flatly rejected this contention, or that Mueller could have been operating under such a presumption.
"I personally felt he could've reached a decision," he told CBS News chief legal correspondent Jan Crawford during an exclusive interview in Anchorage, Alaska, on Thursday. 
"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," Barr added. "But he had his reasons for not doing it, which he explained and I am not going to, you know, argue about those reasons."
For those keeping score, mischaracterizing Kilimnik's relationship to Russian vs US intelligence agencies is the third such revelation of factual inaccuracy within the report. Include Mueller's public statement about the report and the role of the DoJ guidance on indicting a sitting President and you have four not-insignificant challenges of fact within the report.

These factual errors combine with the strong criticism (and in some cases, outright condemnation) of Mueller's statements claiming the report does not "exonerate" the President. Alan Dershowitz called Mueller's statements "shameful." Andrew McCarthy considered the non-exoneration a diversion from the report's substantive legal flaws. It cannot be said often enough that prosecutors must prove guilt, as innocence is presumed, yet Mueller felt compelled to say repeatedly, in the report and in public, that he could not prove President Trump's innocence.

How did such a well respected legal figure such as Robert Mueller, armed with presumably an A-list roster of legal talent to conduct his investigation, create such a hot mess of an investigative report? My personal theory is that it is because Mueller and his team are all lawyers.

In American jurisprudence, much is made of the term "the rule of law".  Our courts call particular attention to the phrase and its meaning:
Rule of law is a principle under which all persons, institutions, and entities are accountable to laws that are:
  • Publicly promulgated
  • Equally enforced
  • Independently adjudicated
  • And consistent with international human rights principles.
In Chief Justice John Marshall's historic ruling Marbury v Madison (5 US 137) made the concept a simple yet powerful declarative: "It is emphatically the duty of the Judicial Department to say what the law is." 

The "rule of law" is a fixed and permanent legal guide; it is our legal system's due north compass heading, against which all legal theories, interpretations, and advocacies may be coherently oriented. The rule of law is not a whimsy of lawyerly invention; it is not the result of legal caprice.

Mueller, however, has paid but scant lip service to this ideal. Instead, through 448 pages of legal introspection, he and his investigation team sought ways to capriciously and inventively sidestep this bedrock principle. Where the law did not serve their purposes, they proposed alternate theories of the law that would bend the law until it did serve their purposes. Shaking off Marshall's long-standing dictum, Mueller, not satisified with what the law is, attempts to dictate what the law should be.

Nor is Mueller alone in his ignominy.  His tortuous statements regarding the non-exoneration of President Trump are an uncomfortable bookend to former FBI Director James Comey's July 2016 press briefing, where he outlined all the ways in which Hillary Clinton broke the law, and then said the Department of Justice would not be indicting her.

What Mueller and Comey represent is a dark and ultimately dysfunctional legal mindset, one that views the law as an infinitely malleable means to whatever ends are desired. It is a view that stands in direct opposition to the stated ideals of American courts. It is a view that is rejected outright throughout the United States Constitution, where due process and the rights of the accused are explicitly made paramount. It is a view that is more in keeping with Lavrentiy Beria's cavalier concept of law, "show me the man and I'll find you the crime." It renders law as autocratic authoritarianism rather than the best defense of liberty.

With this in mind, the political, biased quality of the Mueller Report comes as no surprise. When the "rule of lawyers" displaces the "rule of law", an hodgepodge of political poses and pontifications becomes not only likely, but inevitable. The Mueller Report is the result of lawyers presuming the law exists to serve them, to further their agenda, and eschewing the ideal that lawyers serve the law and, through the law, serve the public.

Given the history of American jurisprudence, the Mueller/Comey ideation of lawyers can not stand--it must not stand.  It cannot stand because even the Preamble to the Constitution, beginning as it does with "We the People....", rejects the notion that anyone can or should bend the law to their own ends. The Constitution is the supreme law of the United States, and from the very beginning it cast as one law, one rule of law, for the whole of the United States. As Ronald Reagan said in his farewell address:
Ours was the first revolution in the history of mankind that truly reversed the course of government, and with three little words: "We the People." "We the People" tell the government what to do; it doesn't tell us. "We the People" are the driver; the government is the car, and we decide where it should go, and by what route, and how fast. Almost all the world's constitutions are documents in which governments tell the people what their privileges are. Our Constitution is a document in which "We the People" tell the government what it is allowed to do. "We the People" are free.
Mueller and Comey would reverse this. Mueller, Comey, and all lawyers of their ilk (names such as Strzok, McCabe, Weissman, and Rosenstein come to mind) by their actions seek to elevate their knowledge of the mechanics of the law into a diktat in lieu of the law. In the Mueller/Comey theory of law, "We the People" are only as free as they decide to allow for the moment, and only in this moment.

Thus apprehended, the Mueller Report perversely becomes, if not an exoneration of Donald Trump, certainly an explanation for Donald Trump. The single great political sin of Donald Trump has been his rejection and at times cavalier dismissal of the "norms" that have defined American politics for the better part of at least the last century. Where the Mueller Report crouches behind dense legalese, Donald Trump tweets in almost pedestrian vernacular.  Where the Mueller Report relies on complex convolutions and analyses, Donald Trump states his principles, his goals, his agenda simply and forthrightly ("A nation without borders is not a nation"). Mueller and Comey, longtime denizens of the permanent Administrative State apparatus within Washington, often derided as "the Swamp", are in every regard the antithesis of the free-wheeling Donald Trump Administration. The Mueller Report is how the permanent Administrative State view the law and how it applies to the average American; its publication allows the average American to gauge that view against their own notions of what the law should be.

That is, perhaps, the one clear political good to arise from the Mueller Report--the opportunity for the average American to decide for himself the merits and demerits of the permanent Administrative State, of an unelected bureaucracy that imposes its own notions of law and justice on a subservient public. Once more, thanks to Robert Mueller, we are presented with a time--and a chance--for choosing. 

Do we want lawyers deciding whimsically and capriciously who is innocent and who is guilty? Do we want lawyers reinventing law to further their ends, without regard to facts or evidence?

Or do we want laws, conceived, articulated, debated, and voted by those whom we elect, by those we charge to craft good and just laws in order to build the more perfect Union our Constitution seeks? 

Shall "We the People" remain free, with government bound to our will?

"Rule of law" vs "Rule of lawyers". In the Mueller Report, we get to clearly see the difference.

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