Mueller Investigation

From Defending Conservatism Encyclopedia
Jump to navigation Jump to search
Robert Mueller, 2012

Unconstitutional[edit]

Expiration of the Ethics in Government Act[edit]

The current Mueller investigation is unconstitutional. The legislative authority for a Special Counsel/Prosecutor expired in 1999 when Congress declined to renew the 1978 Ethics in Government Act.

Reno's Corruption[edit]

While the Attorney General in 1999, Janet Reno, proclaimed the ability to appoint special counsels through the Department of Justice's Attorney General, that ability was supposed to lack the legislative, statutory authority and independence of Congress-appointed independent counsels.[2] Ironically it was Reno's own corruption that led to Congress' decision to let the Ethics in Government Act authorizing special counsels expire, since Reno was refusing to appropriately enforce the Act and appoint a Special Counsel to investigate the Clinton administration.[3] As such, the usurpation of special counsel appointment authority powers by a corrupted Attorney General, after Congress let those powers disappear upon realizing she was misusing them, was suspect at best. Reno herself was accused by Congress of changing her interpretation of the Special Counsel Act to obstruct justice.

Reno did not just begin her corruption during the Clinton era. She also, while Dade County State's Attorney from 1978-93, pioneered a since-discredited practice of engineering false evidence against innocent people, accusing them of child abuse. Several people such as Bobby Fijnje were falsely accused; justified only after years of false accusations.[4]

As such, the unconstitutional DOJ guidelines were authored by an utterly corrupt Attorney General who protected the Clinton administration by refusing to enforce Congress' Ethics in Government Act requiring the appointment of a special counsel and inconsistently interpreted the statute to do whatever she wanted. Reno falsely accused innocent people and tried to wreck their lives using the power of the courts.

DOJ Special Counsels vs. Independent Counsels[edit]

And what independence are Special Counsels supposed to have less of? Independence from the authority of the Attorney General.[5] Lacking legislative authority, a special counsel such as Mueller should be directed almost entirely by the Attorney General (now William Barr).

The Bush/Comey Era[edit]

There had been no Special Counsel since 2003 when Attorney General John Ashcroft recused himself from an investigation into the Bush administration, and appointed James B. Comey, Jr. as Special Counsel to oversee the investigation into the Bush administration.[6] Not until Rosenstein appointed Mueller in 2016 without either legislative or executive basis had there been a Special Counsel.

The Current Investigation[edit]

As part of the executive branch, both Mueller and Rosenstein are supposed to be accountable to Donald Trump. If Congress wanted to investigate Trump, it should do so via legislation or committee authorizing special investigation as it did during the Nixon era with the Senate Watergate Committee.

Mueller's False Authority[edit]

Democrats are currently challenging the appointment of Matthew Whitaker as Attorney General, claiming that such appointment is unconstitutional, because they know that Mueller is supposed to be accountable to the Attorney General. They furthermore claim that Mueller should not be considered a 'principal officer' requiring Senate approval since he was appointed by an inferior officer, Deputy Attorney General Rod Rosenstein, instead of the previous Attorney General Jeff Sessions.

The problem with arguments such as that made below by the New York Times is obvious, however. The Deputy Attorney General lacks authority to appoint a special counsel, and no special counsel has ever been appointed by a Deputy Attorney General. The Constitutional legitimacy for a special counsel to be appointed after Congressional statutory authority expired in 1999 was on shaky grounds to begin with. The only way it didn't provoke Congressional opposition at the time was by promising that the special counsel would be strictly under the control of the Attorney General; lacking the statutory authority and independence of past independent counsels. What Democrats now want to do is sneakily have an inferior officer appoint Mueller to claim that he should have even more authority and power than if he'd been appointed by a principal officer (the Attorney General), on par with the power of independent counsels--which again, expired in 1999 after Congress refused to renew it, in part due to then-Attorney General Janet Reno's corruption to begin with.[3]

All of which is beside the point. Rosenstein was only able to appoint Mueller as a Special Counsel because Sessions recused himself--thus making Rosenstein the Acting Attorney General. Rosenstein was only able to appoint a Special Counsel by being an Acting Attorney General, effectively using the authority of the Attorney General's office, thereby making Mueller himself a principal officer who was appointed without Senate approval.

Thus, any lawsuit questioning Whitaker's appointment without Senate approval necessarily implicates the Constitutionality of Mueller's appointment, who was also appointed without Senate approval. And Mueller, contrary to the New York Times' claims, was a principal officer since he was appointed by Rosenstein as Acting Attorney General.

Recess Appointments[edit]

Matthew Whitaker was appointed on the basis of the Federal Vacancies Reform Act of 1998, which authorizes the President to appoint someone for 210 days in a federal role:

Democrats ultimately argue that Whitaker's appointment is not valid, because he wasn't confirmed with the advice and consent of the Senate. However, many principal officers have been confirmed before without that advice and consent, through what is known as recess appointments. The Senate has been blocking Trump's ability to appoint officials such as Whitaker through an arguably unconstitutional motion known as pro forma, where the Senate stays perpetually open so that Presidents can never provide recess appointments.

So if the Senate were to recess for a single day, allowing Whitaker's appointment through a recess appointment, his appointment would suddenly be valid, under such logic? There would still be no formal Senate vote on his appointment. The recess appointment power is clearly Constitutional under Article 2, Section 2:

But the Senate is refusing to recess, so what could be done? Trump can actually force Congress to adjourn, and then provide temporary appointments, per Article 2, Section 3:

By simply forcing Congress to take the recess they should be taking anyway, then temporarily appointing Whitaker, who could then remove Mueller, all objections based on Constitutionality would be silenced.

Ultimately, Mueller is using powers that should not be granted to him, that expired in 1999 and were not renewed by Congress. As such, any actions he has taken for discovery could be disqualified, in the same way that police who use unlawful methods (e.g. unlawful search and seizure) can have evidence disqualified as impermissible via the Exclusionary Rule.[12]

Judicial Review?[edit]

For more on the need for a modern judiciary act, see Political Reforms

Mueller is currently protected by judicial tyranny that has intervened to stop Trump's executive orders and Congressional legislation such as the Defense of Marriage Act. Irrespective of Congress, the runaway judiciary will doubtless intervene to protect Mueller should he be fired by Justice Department officials or Trump himself, by simply declaring that his removal is unconstitutional. As such, a modern Judiciary Act such as the one I have recommended is necessary to limit the scope of judicial jurisdiction.

Judicial jurisdiction, like Presidential jurisdiction (Article 2, Sec. 3), should stop where legislation begins, consistent with Article 6 of the U.S. Constitution, which clearly states that "This Constitution, and the Laws of the United States... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby..."[11]

For an extensive overview of the problems with the doctrine of Judicial Review, see chapters 5 and 17 in "Defending Conservatism." Needless to say, however, Marbury v. Madison did not justify Judicial Review, and oversight by the Judiciary of either the Legislative or Executive Branches. With Marbury, the Supreme Court Justices refused to intervene in a dispute involving appointment of federal judges; refused to force Secretary of State James Madison to deliver the appointments of President John Adams to the judges in question. Rather than justifying judicial oversight of the Executive and Legislative branches, Marbury actually showed the Court lacks jurisdiction to dictate what is and isn't Constitutional to the other branches.[13]

Any removal of Mueller should, ideally, occur only after passage of a Judiciary Act restricting judicial jurisdiction from overriding legislative and executive decision-making.

Democrat Hypocrisy[edit]

Democrat Hacking[edit]

The Democrats hacked Russia before Russia hacked them. The Obama administration was caught spying on 35 world leaders and hacking the Google and Yahoo servers to steal hundreds of millions of global emails. I guess it was alright for the Democrats to hack Russia but not the other way around?[14]

CIA Has Interfered With More Foreign Elections Than Russia[edit]

From 1946 to 2000 the CIA interfered with 81 foreign elections, whereas Russia interfered with only 36.

Clinton Collusion[edit]

The Wikileaks emails showed very real corruption on Hillary's part. Hillary was colluding with CNN's Donna Brazile, the former DNC head, to steal the debate questions, and with the DNC to keep Bernie Sanders from winning.[16] Maybe if the Obama administration honored our own Whistleblower protection laws, Snowden and Assange wouldn't have been forced to seek asylum in Russia in the first place.

Podesta and the Russians[edit]

Hillary Clinton's campaign manager, John Podesta, was himself involved in corruption with the Russians, as was Mark Warner, the top Democrat on the Senate Intelligence Committee.[17]

Likely Outcomes[edit]

As of December 11th, 2018, I expect the following to occur.

  1. If Donald Trump decides to fire Mueller, he will be stopped by the Judiciary, which will declare the firing unconstitutional on the basis of obstruction of justice while blocking Whitaker's appointment. Since it appears unlikely he will pass a modern Judiciary Act in time to prevent judicial overreach (by January 3rd before the new Congress is seated), this will result in a showdown between the President and the Judicial branch in his final two years of office. It appears Democrats will obstruct Whitaker's appointment as long as possible, and may even get away with blocking the appointment for Trump's remaining two years, unless he adjourns Congress forcibly and appoints Whitaker as a recess appointment, who could then remove Mueller. Even then, if acting according to every legal technicality when appointing Whitaker, it is likely Democrats will simply pay judges to obstruct Whitaker's appointment by abusing the legal process, barring the passage of a Judiciary Act.
  2. Democrats will spend the next two years filing non-stop impeachment articles against Trump, calling for investigation after investigation. Although they clearly lack the 67 votes needed in the Senate to successfully impeach him (they have just 47, and would need 20 Republican votes), they want to win the battle of public opinion. Their goal will be to tarnish his reputation and the Republican Party's image over the next two years, with an eye on larger seat gains in 2020.
  3. Because impeachment is the only valid tool for removing a President in office, Democrats will wait to go after Trump until he is out of office, perhaps looking to indict him. Unless the evidence from Mueller's investigation can be declared inadmissible and he is clearly removed in a way that renders the results moot, that evidence will likely be used against Trump upon completion of his presidency. In particular, Democrats will target him over the hush money payments made and campaign tax evasion (tax evasion being the issue used to target Manafort and Cohen[18]).

Sources[edit]

  1. Maskell, Jack (2013, June 20). "Independent Counsels, Special Prosecutors, Special Counsels, and the Role of Congress." Congressional Research Service.
  2. Suro, Robert (1999, June 30). "As Special Counsel Law Expires, Power Will Shift to Reno." Washington Post.
  3. 3.0 3.1 3.2 3.3 Committee on Government Reform (2000, December 13). "House Report 106-107: Janet Reno's Stewardship of the Justice Department: A Failure to Serve the Ends of Justice." House of Representatives.
  4. (2002, April 28). "Reno Owes the Public Answers." St. Petersburg Times.
  5. Helsel, Phil (2017, May 17). "'Special Counsel' Less Independent Than Under Expired Watergate-Era Law." Washington Post.
  6. Lichtblau, Eric (2003, December 31). "Special Counsel is Named to Head Inquiry Into Leak." New York Times.
  7. Katyal, Neal M. & Conway III, George T. (2018, November 18). "Trump’s Appointment of the Acting Attorney General Is Unconstitutional." New York Times.
  8. Electronic Code of Federal Regulations (2018, December 10). "Title 28: Judicial Administration, PART 600—GENERAL POWERS OF SPECIAL COUNSEL." Government Publishing Office.
  9. Ward, Alex (2018, November 21). "The Strongest Case For--And Against--Matthew Whitaker's Appointment." VOX.
  10. Kerpen, Phil (2018, November 16). "Senate Republicans Are Blocking Trump Appointments." Townhall.
  11. 11.0 11.1 11.2 11.3 11.4 Madison et. al. (1787). "The Constitution of the United States: A Transcription." National Archives.
  12. Jurkowski, Stephanie (2017, June). "Exclusionary Rule." Legal Information Institute.
  13. "This Day in History: February 24, 1803." History Channel.
  14. Ball, J. (2013, October 25). "NSA Monitored Calls of 35 World Leaders After US Official Handed Over Contacts." The Guardian.
    "NSA Secretly Tapped Google, Yahoo Data Centers Worldwide, New Report Claims." FOX News.
  15. Shane, S. (2018, February 17). "Russia Isn't the Only One Meddling in Elections. We Do It Too." New York Times.
  16. "Donna Brazile Leaves CNN After Leaks Reveal Campaign Collusion." Snopes.org.
  17. Atkisson, Sheryl (2018, February 11). "Democratic Ties to Russia are Ample, and Often Ethically Dubious." The Hill.
  18. Singletary, Michelle (2018, August 22). "Paul Manafort. Michael Cohen. How Tax Fraud Took Them Down." Washington Post.