The View from the Back of the Theater, Con’t.

Fenster writes:

Former federal prosecutor Andrew McCarthy once again delivers a clear-headed and legally meticulous analysis of the current mess. If you can find fault with his reasoning or facts have at it. If not and you prefer to just grouse, IMHO STFU.

I resist cutting and pasting snippets since the analysis ought to be taken whole.  It is an impressive and closely reasoned argument.

That said, while McCarthy sticks to the facts and builds hypotheses carefully on the basis of what is actually known, he is left hanging, unable to come up with a good answer, on a central question.

As he writes, the country needs an answer to that question. But not from Barr. From Mueller.

A nagging question persists: Why did Mueller allow the investigation to continue for well over a year after it must have been patent that there was no collusion case?

But what to make of the recent cloud of smoke being thrown up by the media: that Barr is the one who has explaining to do, that he is not telling the whole story and that the Mueller people are not happy about it?

On the one hand, it is easy to discount the news reports about the dissatisfaction expressed by the Mueller team about what is happening. Articles in the mainstream press based on anonymous sources have not held up well at all.

Yet if McCarthy’s take is well-founded–and I think it is–grousing by Mueller’s staff is to be expected. They did not get their way on the very weak obstruction argument that in the end was what the whole shebang was about.

In June 2018, Barr had submitted an unsolicited 20-page memo to Rosenstein. Citing the legislative history of the obstruction statutes, leading case law, and longstanding Justice Department policy, he contended that Mueller’s apparent theory of obstruction was legally untenable and practically unworkable. Putting the president aside, the theory would subject to possible prosecution any Justice Department supervisor who made a routine personnel decision during a case (say, reassigning a lawyer from one investigation to another) if some prosecutor later suspected an improper motive. Barr further made what should be an incontestable point: Given the damage such a prosecution can do to the nation’s governance, a president should not be prosecuted in the absence of something all reasonable people can agree is a clear, serious violation of law.

Once Barr was confirmed, Mueller had to see the handwriting on the wall: The new AG was not going to approve a dubious obstruction charge. The special counsel thus had a choice: concede that Barr was right on the law, or fight for the controversial theory his staff had pursued — i.e., recommend an obstruction charge and dare the AG to nix it. But Mueller shrank from making the decision, choosing merely to summarize the evidence and leave the prosecutorial judgment to Barr.

In consultation with Rosenstein, Barr found no prosecutable case. Deftly, he reasoned that even if one accepted the questionable premise that a lawful act can lead to an obstruction charge if corruptly motivated (Mueller’s theory), the case would still fail. Corruption, Barr elaborated, would have to be proved beyond a reasonable doubt, and here, where the president had not colluded with Russia and had cooperated with the investigation, it would be impossible to prove he had a corrupt intent to thwart the investigation.

On the other hand to say that leaking by miffed members of team Mueller is understandable is not the same thing as saying it is defensible, ethically or legally.  John Solomon argues that it is not.

The job of prosecutors is not, as the Times headline suggested, to pen “damaging” narratives about people they couldn’t indict. And it’s not their job to air those people’s dirty laundry, or that of suspects outside of a grand jury room or a courtroom. . . Prosecution isn’t a game of horseshoes or hand grenades where prosecutors get to score points or inflict damage without indicting the target. In fact, the Founding Fathers built a legal system specifically to avoid the tarring of citizens when there wasn’t enough proof to meet a criminal charge.

And then there is the added fillip of the Times coverage. It is OK to publish information unethically or illegally leaked (though you would expect some mercy for Assange on that count; good luck and bon voyage Julian!)

But it is not even clear that the Times ran the story on the basis of a first hand source but rather on the basis of second-hand hearsay. That’s not legally actionable (n.b., that pesky Assange thing again!) But it is arguably not journalistically sound, especially with all the BS the press has thrown around.

Bonus: Kim Strassel on the hollowness of the Times coverage.

About Fenster

Gainfully employed for thirty years, including as one of those high paid college administrators faculty complain about. Earned Ph.D. late in life and converted to the faculty side. Those damn administrators are ruining everything.
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8 Responses to The View from the Back of the Theater, Con’t.

  1. peterike says:

    I haven’t read McCarthy’s piece, but over at Conservative Treehouse they make the case that the whole point all along was to try and provoke Trump into obstruction. They knew from day one that the Russia story was nonsense, but they set up Mueller and kept it going in the hope that Trump would fire Mueller and then they could go after him for obstruction.

    This is why they went after Trump cronies on unrelated charges: all to make Trump act out of anger. The whole SWAT team to pick up old man Roger Stone was done as a provocation. The constant media speculation on “is Trump Jr. next?” Every bit of this was coordinated between the Democrats, FBI traitors and the media. Yet somehow, the not-very-patient Trump managed to stay patient and he didn’t fire Mueller.

    I still think the Dems in the House are crazy enough to start impeachment proceedings over “obstruction,” because Trump tweeted mean things about Mueller, or something. They really don’t need a reason.

    Finally, it will be interesting if we ever find out the truth about Jeff Sessions. Was he a Deep State plant all along? A weakling in way over his head? Or did they have something on him?


    • fenster says:

      the CT analysis, especially on the idea that Trump was being goaded and did not take the bait, is not the same as what McCarthy says but it is congruent with it. Especially noteworthy is the idea in both that Russia must have been discarded as a subject long ago, with the idea being how to devise a case based on obstruction.

      McCarthy can only theorize about how the end game played out: aggressive staff pushing a fairly extreme argument for obstruction; Mueller sees the writing on the wall and waffles at the end. But it is a sensible guess and it conforms also with the recent leaks. Recall that the leakers did not take issue with the findings on no collusion but appeared to be grousing over Barr not taking seriously the obstruction argument that they were developing.


  2. JV says:

    Oh please. For one, we don’t know what’s in the report. For two, there was more than enough shenanigans going on to warrant an investigation. Was there a political component? Of course, but no more (and I’d say substantially less) than other special counsel investigations.


    • fenster says:

      your commentary is always welcome as it is clear and thoughtful. i do think you are missing the boat on this one but we will see.


  3. Collusion is a description, a characterization of acts, not a crime. Even without the report, it’s known that Mueller founds numerous acts that can be characterized as collusion. And a bunch of crimes.
    Mueller was apparently considering whether what was found could be proven by a reasonable doubt at trial. One could call that being overly conservative.
    Fenster, as well as all conservatives, has complete knowledge of the contents of the report, so his word is inarguably, impeccably correct. The rest of us know nothing so have worthless opinions.


    • peterike says:

      “it’s known that Mueller founds numerous acts that can be characterized as collusion. And a bunch of crimes.”

      Oh yeah? Like what? What “crimes” were found that had anything to do with the specified purpose of the Special Counsel?

      “The rest of us know nothing so have worthless opinions.”

      Yet you seem pretty confident that there was both collusion and “crimes.”


    • fenster says:

      I don’t have complete knowledge of the report and was hoping to transmit some of the provisional quality of my thinking in the very title of the blog post. I am sitting in the back of the theater. Like you, I suspect. As such I have to rely on translating and processing all manner of information from honest analysis to debased spin.

      As I wrote, I find McCarthy’s analysis here to be very persuasive. And that’s not just because “I like it” but because his manner of moving from initial theory through evidence through stronger hypotheses to reasonable (thought not yet proven) conclusions has been shown over time to be sound.

      Like I wrote in the piece, readers are invited to follow him down the trail of evidence, law and legal reasoning and come to a different conclusion. But then *do* that. Don’t just lazily out a few unsupported statements and think your views are competitive. They are not. You wanna make a real argument step up your game. Meantime, I find your note quite unpersuasive.


  4. Pingback: The View from the Back of the Theater, further. | Uncouth Reflections

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