Why the ‘president isn’t above the law’ argument is off the mark

Why the ‘president isn’t above the law’ argument is off the mark
(Image: Screen grab of MSNBC video)

The short answer on this is that Robert Mueller’s special counsel investigation doesn’t have a statutory criminal predicate at its core.  There’s no defined crime at issue.

If Donald Trump were under suspicion of murder, or if it could be reasonably assumed, from evidence, that he must know something about a murder that was committed, then it would be appropriate to discuss whether he is “above the law” when it comes to subpoenas or obstruction of justice.

In a criminal matter, we know how any other citizen of the United States would be treated.  (Possibly excepting Hillary Clinton.)  It’s reasonable, if not novel or open-ended, to compare the special position of the president to the average citizen’s position, when we are at least certain about the boundaries and application of the law itself.  With crimes defined by statute, that’s the certainty we have.

But that’s not the case here.  There are two layers of weird, in the case of the Russiagate special counsel, that precede any assessment of the president’s special position.  First, Mueller is a special counsel, and in fact one with an increasingly questionable charter – apparently broad enough to drive an aircraft carrier through, judging by all the tangents Mueller keeps going off on.  (Collusion with Qatar?  What’s next, collusion with a surf club in Belize?)

Mueller was appointed by the deputy attorney general – not by the AG, the president, or Congress – with a charter modified by the selfsame deputy attorney general under cover of secrecy, all of which is an exercise of executive authority (if one we ought to have strong reservations about) that resides ultimately with the president, and no one else.

For the exercise of executive authority, there is only one entity higher than the president, and that’s the people.  If the people object to his exercise of authority, we can demand that Congress impeach him, or we can wait to vote him out.

You find a criminal predicate for Mueller’s investigation, and then we can talk about who’s above the law.  (Even in that case, the constitutional remedy seems to be Congress impeaching and removing the president from office first, and then the federal executive moving on a prosecution.)

But the Mueller investigation doesn’t have a criminal predicate, and it never did.  This isn’t even debatable.  It was always a counterintelligence investigation.  It was endowed with the implied opportunity to morph into “something” with a criminal predicate, but what exactly that might be was left vague.

This is the second layer of weird: the fact that we’re not just talking about a special counsel investigation, but a bizarre hybrid of counterintelligence, and “if you happen to find something, dude – and we’re not telling you what you can’t find – like, go for it.”

There has been a healthy debate since the original Mueller charter was published as to whether he should prosecute collateral crimes he might uncover, or turn them over to a U.S. attorney for prosecution.  So far, Mueller has elected to run the prosecutions himself (e.g., of Manafort, of the Russians indicted for fraud incident to political trolling, and of the witnesses accused of false statements).

This actually weakens his position to demand cooperation from witnesses suspected of no crime, and, indeed, not reasonably suspected of having material knowledge.  This guy, right here, the one who wants to interview you, might convene a grand jury and indict your sorry little tuchas.  He’s not even going to turn it over to another office, where the proposed indictment could get a second look before it was presented with all the zeal and authority of the federal government to a grand jury.

Moreover, nothing requires him to.  There’s no check or balance on his ability to drag you into a courtroom.  Under black-letter law, he can’t indict you for what you say about counterintelligence questions with no criminal implications – but he can make you navigate a process-crime minefield the whole way.

As far as you know, this guy could ask you out of the blue if you were contacted by a Qatari with Russian business contacts on 18 July 2016, and who in the world knows that?  Some bozo with an Illinois phone number linked to a Qatari with Russian business contacts could have called my home number by mistake on 18 July 2016, and presumably I didn’t even answer, because I didn’t recognize the number.  I wouldn’t remember that, at all – and yet there’s nothing stopping Mueller from catching me in a “false statement” if I say no, I wasn’t contacted in any such manner.

Why should you – even an average citizen – have to give this guy ammunition against you, if the purpose for which he wants your “cooperation” is deviating at a geometric rate from a statutory tether and the expectations of due process?

The answer is, you shouldn’t.  And neither should the president of the United States.

The whole special counsel situation operates outside of the normal processes of administering the law.  The Mueller investigation, as a hybrid counterintelligence probe without an intrinsic criminal element, is nothing but a gigantic, walking exercise of executive discretion.  It’s basically making everything up as it goes along.

Note that in the case of a special counsel appointed by the Justice Department, wherever it exercises executive discretion, its ultimate, buck-stops-here authority is the president.

But now, forget whether the president is above that “law.”  You and I are above that “law” – or we’re supposed to be, under the Constitution and by any sane reading of the rule of law.  The president shouldn’t treat us that way.  Why should Robert Mueller be able to treat the president that way?

The U.S. federal government can’t just show up for no statutory reason and demand that you start answering questions, and then indict you for obstruction of justice if you refuse.  Yet Mueller wants to sit the president down for the “asking questions with no statutory reason” part, and Trump’s opponents are demanding that Trump submit to such treatment.

Don’t get confused.  You shouldn’t have to submit to that treatment.  Neither should the president.

Final point: it has become terribly common – terrible in every sense of the word – for the people to in fact be harassed by our governments in exactly this way.  Most people don’t have the means to fight this abuse.  We’ve come a long way from the days when most Americans understood that the government is not supposed to treat us so badly.

I suggest adjusting your mind right now.  Don’t let it slip backwards.  That deformed expectation is wrong, and it is deadly.  Everyone is above the law when it malfunctions that way.  Everyone should be.  Government is out of control, when it can mistreat the people in such a manner.

We must not let pundits and opposing politicians permanently normalize such mistreatment, and pervert the meaning of due process, as a by-product of their hatred of a particular president.  That’s the real question: not who’s above the law, but what the law is.  And the answer that matters here is, it’s not what Robert Mueller is doing.

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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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