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Wednesday, April 24, 2019

A Response to Checks & Balances' Press Release on the Mueller Report

Checks & Balances issued a press release: New Statement from Checks and Balances on the Mueller Report (Apr. 23 2019), <https://checks-and-balances.org/new-statement-from-checks-and-balances-on-the-mueller-report/>. The Press Release stated: “The Special Counsel’s investigation was conducted lawfully, and under longstanding Attorney General guidelines.” I think a more prudent approach might have been for the Press Release’s signatories to await a review of the process that launched the Special Counsel’s investigation before describing its conduct as “lawful.” My understanding is that such a review is expected in the near future from the Inspector General’s office, and it appears that Attorney General Barr will authorize a review of the Department of Justice’s conduct.

The Press Release also states: “The facts contained in the report reveal that the President engaged in persistent conduct intended to derail, undermine and obstruct ongoing federal investigations.” It is unclear what specific allegations within the report the Press Release is relying on. Whether those allegations are, in reality, facts or not has not been established by anything like an unbiased or independent decision-maker—like an Article III judge—after both parties have had notice and an opportunity to be heard. By contrast, the Special Counsel’s report is merely a prosecutors office’s memorandum which attempts to marshal one side of the evidence, where the object of the investigation has had no opportunity to respond (e.g., to submit physical evidence, to file affidavits, to cross-examine witnesses and other persons interviewed by the Special Counsel, or to present his own witnesses). As far as I know, the Special Counsels report is not even sworn to, as one would swear (or affirm) to any ordinary affidavit or declaration offered into evidence. Yet the Press Release relies on this report in arriving at far-reaching conclusions about the President’s conduct. Checks & Balances’ care free attitude in regard to fair play (a/k/a due process) is somewhat odd for an organization named “Checks & Balances.”

Finally, the Press Release speaks to “the President’s violations of his oath, including but not limited to [1] his denigration of the free press, [2] verbal attacks on members of the judiciary, [3] encouragement of law enforcement officers to violate the law, and [4] incessant lying to the American people.” Examples of [1], [2], and [4] are not specified. Absent some specific examples, I will posit that the Press Release’s signatories (which includes several legal academics) are merely characterizing lawfully protected free speech as constitutional violations by the President. Likewise, no example in regard to [3] is specified—if it refers to the President’s exercise of his pardon power, then the critique amounts to just a mundane political disagreement in regard to who should be the object of the President’s bountya matter entirely committed to the Presidents discretion. All the allegations, mentioned above, from the Press Release amount to [1] constitutionally protected free speech; [2] internal Executive Branch deliberations (and legal advice) about policy during policy formation; and, [3] normal politicsbeing recharacterized as a constitutional wrong, tort, or crime. Indeed, the Press Release concludes by supporting an investigation of the President based upon his having had engaged in First Amendment protected free speech and his exercise of the pardon power (which remains lawful even when exercised to achieve contested or political purposes). If this is not the criminalization of democratic politics, it is too close for comfort. 

But I guess some people long to bring back the Sedition Act of 1798.


Seth Barrett Tillman, A Response to Checks & Balances Press Release on the Mueller ReportNew Reform Club (Apr. 24, 2019, 8:42 AM), <https://reformclub.blogspot.com/2019/04/a-response-to-checks-balances-press.html>. 

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TMLutas said...

In 2014, the DOJ finally struck down the previous rule against recording interviews, finally recognizing the obvious, that actually hearing the words as uttered could have a positive contribution to finding the truth that was not being served by only recording the impressions of agents in form 302s.

The Mueller report is wall-to-wall footnotes supporting their allegations referring back to form 302s.

Are there tapes? Are the 302s accurate? Is there bias? Mueller's conduct to prefer 302s over recordings is a choice and a poor one both for the interests of justice and for the interests of political settlement of the issues arising from the election of 2016.

This stinks on ice.

MikeP said...

Folks have lost their minds over Trump and it is simply astonishing to see formerly balanced professionals become raging lunatics.

It's scary to consider that folks may not regain their minds anytime soon.

KSpapi said...

The media mentions on the published page with their press release, to discussions with The Bulwark and MSNBC, reveal as much about their bias as the text.

It bears repeating, continuously and loudly, that presidential privilege was not invoked and that the Mueller investigation had unprecedented access to both executive branch personnel and documents that would clearly reveal any claim of obstruction as nothing other than political posturing.

Greg Glen said...
This comment has been removed by a blog administrator.
Anonymous said...

AG Barr chose to accept the Report without going into the evidence, stating that it's finished, but the Congress, citing their oversight responsibilities, thinks otherwise. I am confused about the power of Congress to engage in oversight, and would appreciate a clarification. It doesn't exist in the Constitution, unless the power to constitute tribunals means oversight. Wouldn't it be limited to legislative matters? What about separation of powers? Should the power of oversight exist, as it seems to have for some time now, the Congress has no right to violate the Fourth Amendment against unreasonable seizures and searches, requiring them to them limit their inquiries to specific points where they have a basis for concern.

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