Reminder: The Mueller investigation is neither due process nor the rule of law

Reminder: The Mueller investigation is neither due process nor the rule of law
(Image: Screen grab of MSNBC video)

Three arresting posts in the last few days have reminded me of the basic character of the Mueller investigation.  The nature of the investigation is such that, in itself – aside from its procedural arrangements – it cannot be due process or the rule of law.

That means something very important about it.  It means that there is no automatic, inherent moral high ground on it.  No side can claim the “right,” at least by having in view a process and an outcome that can meet a standard of measurement (such as the definition of a crime, and the elements of proof for it).

All support for the Mueller investigation, like all criticism of it, is political.  It’s an argument over politics and policy.  Frankly, as others have pointed out, it’s a bastardized re-litigation of the 2016 election.  You’re either for that, however you work your way into that position, or against it.

The Mueller investigation itself is an arbitrary use of state power: the very opposite of due process and the rule of law.  It invokes the rule of law only when it wants to constrain its targets.  It is not bound by the rule of law in terms of its own actions.

And we see the effects of that in a number of ways.  Two of them have been topics for the arresting posts I refer to.

Crimes to fit the man

In the first instance, Roger Simon wrote at PJ Media – quoting Alan Dershowitz – about the similarity of Mueller’s special-counsel oeuvre to that of Lavrentiy Beria, the infamous head of Stalin’s secret police.  Dershowitz had cited Beria’s most famous dictum: “Show me the man and I’ll find you the crime.”

Nearly a year ago Alan Dershowitz said on CNN:

I don’t like criminal investigations to start hoping that you have the target, maybe we’ll find the crime. Maybe we’ll find the statute. If we can’t find the statute we’ll stretch the statute to fit the person. That sounds like Lavrentiy Beria and Joseph Stalin. ‘Show me the man and I’ll find you the crime.’ I don’t want to ever see that come to America.

Unfortunately — through no fault of Dershowitz’s, who has done yeoman work — it has come to that, and then some.  Robert Mueller, unwittingly or not, has revealed himself to be a loyal follower of Comrade Beria, but unlike the monstrous head of Stalin’s secret police, he does his work in the unique, seemingly sanitized American way we call “process crimes.”

Dangling people for months on end, in order to gouge process crimes out of them, is what due process and the rule of law are supposed to prevent.  There is supposed to at least be reasonable suspicion of a crime defined in law before the power of state is used to destroy people’s lives.  Yet in the case of the Mueller investigation, there is not.

Due process as a weapon

At the same time, just in the last week, we heard from one of the “little people,” one whose life has been rendered unlivable by the “Russia” investigation.  In fact, the lament of Michael Caputo, a former Trump campaign staffer, is a reminder that the problem is even larger than the Mueller investigation.  Although the Mueller probe is at the center of it, the investigations by the houses of Congress are taking their toll as well.

The entire weaponized apparatus – Mueller, the original FBI probe, the congressional probes – maps back to a political opposition effort mounted by Democrats in the 2016 election.  The chief fruits of that effort are two: the Steele dossier, which gave the effort something to coalesce around, and the perpetuation of the “Russia” theme by the media.

Caputo, in his testimony, spoke witheringly of the $50 million campaign, funded by left-wing dark money, to keep that media theme supplied with material – an effort undertaken by former Dianne Feinstein staffer Daniel Jones, and contracted to Fusion GPS.  The compulsion of Congress to keep slogging away at its “Russia” investigations was sparked by the media-focused operation of Fusion GPS between September 2016 and January 2017, and its flames fanned by Fusion ever since.

There was no way to interdict the Steele dossier, of course.  Making opposition research illegal is not an option, and trying to have law infallibly qualify what oppo research is “legitimate” would be a fool’s errand.

Nor is there a way to interdict what the media do with the dossier, or any other theme placed by Fusion, other than through audience attrition; i.e., enough people tuning the media out and turning them off.

But the U.S. federal government could have decided against taking the bait.  It did take the bait, however; and now, people like Michael Caputo, against whom nothing is alleged, find themselves forced to alter their work and living arrangements to deal with legal bills for wholly politicized, faux-“legal” processes aimed at others.

Mark Steyn quoted Caputo – speaking to the Senate Intelligence Committee – in a post on 3 May:

In 2009, my wife and I moved to my hometown of East Aurora, New York to have a family. Making far less money back home, we had a far better quality of life. That is, until the Trump-Russia narrative took off. Today, I can’t possibly pay the attendant legal costs and live near my aging father, raising my kids where I grew up.

Your investigation and others into the allegations of Trump campaign collusion with Russia are costing my family a great deal of money – more than $125,000 – and making a visceral impact on my children.

Caputo went on to point out that he now has to move to where he can seek higher-paid work again, just so he can recover some of what he has lost (including his children’s educational fund).  He made no relevant campaign- or Russia-implicated decisions that brought this on himself.  The only thing he could have done to avoid having to rack up those bills was not work for the Trump campaign at all.

If you think it’s just fine for someone to pay a price like that for his choice of political candidate, then by all means, I hope it happens to you.  No one is immune.  At any time, if we accept the model of Russiagate and the Mueller investigation, someone can decide to drag all the campaign supporters of your candidate through harrowing, life-altering legal processes, based on the open-ended pursuit of an ill-defined non-crime.

Mark Steyn’s reminder is that in Michael Caputo’s case, as in too many others in the last 20 or more years, the process is the punishment.  The example of people’s lives altered, leaving them in dire financial straits or in forms of suspended animation for years at a time, is a deterrent to exercising our rights and freedoms.

It is not OK for “due process” to be a weapon of punishment for the innocent.  That, like finding crimes to fit the man, is the opposite of the rule of law.  It’s what the rule of law is supposed to prevent.

“Interesting” questions

The third post was David French’s at NRO’s The Corner, after the New York Times published the supposed list of Mueller’s questions for Trump.

I thought French’s title was curious: “Mueller’s Questions about Collusion Are the Most Interesting Questions of All.”

Virtually all of the attorneys I’ve seen commenting on the questions have lambasted them (I was skeptical myself that the questions could be an accurate paraphrase of any list of questions written by an experienced prosecutor).

But French’s post is a reminder of the most important point of all, which is that Mueller’s probe is not an exercise of law and order.  Law and order doesn’t ask interesting questions.  It asks the questions that will convict (or not).  It asks questions that will establish the elements of proof defined by statute.

And it is constrained to do so, because asking interesting questions can blow up theories of a crime, put defense lawyers on alert, violate the rights of those being questioned, and get convictions overturned on appeal.

Interesting questions are the province of intelligence.  They’re the province of policy.  Interesting questions are discretionary – and often arbitrary, or speculative, which is why they are not to be asked with the gun of the state pointed at people’s heads.

In the matters of the 1993 World Trade Center plot and the 1995 Oklahoma City bombing, it was an interesting question whether ancillary actors in those dramas – whose stories and possible involvement were pursued exhaustively by investigative journalists – might have been connected to Saddam Hussein, or Iran.

But pursuing those characters and possible connections might have jeopardized convictions for the culpable individuals sitting in American prisons.  Federal prosecutors didn’t need their cases polluted by a cast of participants who were outside the reach of U.S. jurisdiction.  It wasn’t foolish from their perspective to concentrate on getting convictions – although it wasn’t foolish either for others to worry that international terror connections were being ignored.

There’s a big difference, however, between Russiagate and these illustrations of why the interesting questions of the intelligence trade don’t go well with rule-of-law prosecutions.

Approving the Mueller investigation is not siding with the rule of law

The difference is that with the bombings of 1993 and 1995, there was an actual, defined crime.

Russiagate has no crime at its core.  It wasn’t a crime for Donald Trump to win the 2016 election.

That makes the Mueller probe, at most, a fishing expedition for “intelligence” that might support an alternative theory about the electoral outcome – an alternative, that is, to the blindingly obvious theory that Trump won because he gained enough political support in the requisite states to achieve a victory in the electoral college.

The “collusion” theory assumes, without justification, that it would have required “Russian interference” and Trump’s collusion in it to bring about a Trump victory.  If it doesn’t make that assumption, then what is all this even about?

We already knew that Russia has made a practice of trying to foment political divisions in the United States, and that our elections and major political arguments are regular, high-profile events on which Russian strategists focus.  The intelligence community assessment on Russia and the 2016 election made that very point.

It also summarized, in early January 2017, the other major points on which the Mueller probe has turned up nothing that required interviewing Trump officials: that the Russians are thought to have been behind the intrusions on the DNC and DCCC IT systems and John Podesta’s email account, and that Russian Internet trolls pushed themes in social media during the election cycle.

A straight counterintelligence probe of Russian activity could have been undertaken by the federal agencies without putting a single Trump campaign official under oath.  If something came of that, something implicating a Trump official, appropriate action would then be indicated, and something tangible – like an indictment on a crime related to “interference in the 2016 election” – would actually happen.

The hybrid “investigation” we have gotten instead, which quite clearly aims to put as many Trump associates under oath as possible, may be “interesting.”  But it is not a rule-of-law use of the power of prosecution.  It is not due process.

Rather, it is a case of slapping a prosecutorial badge on an evidence-free, tendentiously-premised theory based in political disgruntlement.

A true intelligence probe would know when to cut its losses for lack of yield.  In any case, it could function like a vendetta for years without harming the innocent through legal harassment, because it wouldn’t have prosecutorial power.

A true law-and-order probe, mindful of judges and appeals courts, would manufacture process crimes solely in pursuit of actual underlying crimes (e.g., to leverage cooperation that could prove crimes and convict perpetrators).

Mueller’s probe is neither.  That’s why it is so profoundly dangerous and wrong.  It’s the power of the state, being wielded without the most basic constraints and restraints of the rule of law.

It cannot stand.  This model of weaponized state power must not remain a possibility in our future.  The only positive outcome will be if the Mueller probe – the whole process surrounding it – becomes the torpedo that hits its own launch platform.  We may at least hope for that.

J.E. Dyer

J.E. Dyer

J.E. Dyer is a retired Naval Intelligence officer who lives in Southern California, blogging as The Optimistic Conservative for domestic tranquility and world peace. Her articles have appeared at Hot Air, Commentary’s Contentions, Patheos, The Daily Caller, The Jewish Press, and The Weekly Standard.


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