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 Counsel’s 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 bounty—a matter entirely committed to the President’s 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 politics—being 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

Seth Barrett Tillman, A Response to Checks & Balances’ Press Release on the Mueller Report, New 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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