Opposing Views – Mueller’s Questions

I am assuming the authenticity of the questions that Special Counsel Robert Mueller reportedly wants to ask President Trump. The questions indicate that, after a year of his own investigation and two years of FBI investigation, the prosecutor lacks evidence of a crime. Yet he seeks to probe the chief executive’s motives and thought processes regarding exercises of presidential power that were lawful, regardless of one’s view of their wisdom.

If Bob Mueller wants that kind of control over the executive branch, he should run for president. Otherwise, he is an inferior executive official who has been given a limited license — ultimately, by the chief executive — to investigate crime. If he doesn’t have an obvious crime, he has no business inventing one, much less probing his superior’s judgment. He should stand down.

The questions, reported by the New York Times, underscore that the special counsel is a pernicious institution. Trump should decline the interview. More to the point, the Justice Department should not permit Mueller to seek to interrogate the president on so paltry and presumptuous a showing.

When should a president be subject to criminal investigation?
It is a bedrock principle that no one is above the law. The Framers made clear that this includes the president. But, like everything else, bedrock principles do not exist in a vacuum. They vie with other principles.

Two competing considerations are especially significant here. First, our law-enforcement system is based on prosecutorial discretion. Under this principle, the desirability of prosecuting even a palpable violation of law must be balanced against other societal needs and desires. We trust prosecutors to perform this cost-benefit analysis with modesty about their mission and sensitivity to the disruption their investigations cause.

Second, the president is the most essential official in the world’s most consequential government. That government’s effectiveness is necessarily compromised if the president is under the cloud of an investigation. Not only are the president’s personal credibility and capability diminished; such an investigation discourages talented people from serving in an administration, further undermining good governance. The country is inexorably harmed because a suspect administration’s capacity to execute the laws and pursue the interests of the United States is undermined. Naturally, this is of little moment to rabid partisans who opposed the president’s election and object to his policy preferences. By and large, however, Americans are not rabid partisans; they want the elected president to be able to govern, regardless of which party is in charge.

Still, the president cannot be above the law. Executive powers are too awesome to abide presidential immunity from the laws and the limits on those powers. So how do we police the president while minimizing the damage that an investigation of the president can do to the country? We acknowledge that we are willing to endure this damage, but only if there is strong evidence that the president is guilty of a serious crime or abuse of power.

A president should not be subjected to prosecutorial scrutiny over poor judgment, venality, bad taste, or policy disputes. Absent concrete evidence that the president has committed a serious crime, the checks on the president should be Congress and the ballot box — and the civil courts, to the extent that individuals are harmed by abusive executive action. Otherwise, a special-counsel investigation — especially one staffed by the president’s political opponents — is apt to become a thinly veiled political scheme, enabling the losers to relitigate the election and obstruct the president from pursuing the agenda on which he ran.

That is what we are now witnessing.

Pretextual appointment of the special counsel
Robert Mueller was appointed special counsel for two reasons: (1) ostensibly to take over a counterintelligence probe; (2) in reality, as a cave-in to (mostly) Democratic caviling over Trump’s firing of FBI director James Comey — which was lawful but incompetently executed. Democrats contended that Comey’s dismissal, in conjunction with Comey’s leak of Trump’s alleged pressure to drop the FBI’s investigation of Michael Flynn, warranted a criminal-obstruction probe. That is, the pretext of obstruction was added to “Russia-gate,” the already-existing pretext for carping about the purported need for a special counsel.

Neither of these reasons was a valid basis for a special-counsel investigation

As we have repeatedly noted, a counterintelligence investigation is not a criminal investigation. To the extent it has a “subject,” it is a foreign power that threatens the United States, not an American believed to have violated the law. A counterintelligence investigation aims to gather information about America’s adversaries, not build a courtroom prosecution. For these (and other reasons), such investigations are classified and the Justice Department does not assign prosecutors to them, as it does to criminal cases. Counterintelligence is not lawyer work; it is the work of trained intelligence officers and analysts. It is not enough to say that Justice Department regulations do not authorize the appointment of a special counsel for a counterintelligence probe. The point is that counterintelligence is not prosecution and is therefore not a mission for a prosecutor.

Foreign efforts to meddle in our elections are nothing new, but they are not to be taken lightly. Russia’s effort plainly warranted a counterintelligence investigation. But reliance on that necessity as a rationale to appoint a special counsel — a lawyer independent of the executive branch, who uses the president’s executive power to investigate the president — was a subterfuge. (Because of Deputy Attorney General Rod Rosenstein’s passivity, Mueller is de facto independent, even though he is technically Rosenstein’s subordinate.)

Prior to Comey’s firing, Democrat demands for a “Russia-gate” special counsel were rebuffed because they were nakedly political. Even if one accepts the dubious premise that Trump materially benefited from Kremlin interference in the election, there was no known credible evidence that he or his campaign committed a crime in that connection. If there had been such evidence, no one would ever have mentioned a counterintelligence investigation; they would have said a special counsel was being appointed to investigate, say, a hacking conspiracy — an actual violation of federal criminal law.

The Democrats did not want a special counsel in order to investigate a crime; they wanted a special counsel (a) to promote a political narrative that Hillary Clinton lost because of something other than her lack of appeal and (b) to frustrate Trump’s ability to govern — to mollify their “Resist!” base, to stop Trump from implementing policies they oppose, and to enhance their electoral hopes in the 2018 and 2020 cycles.

As for the second purported basis for Mueller’s appointment, the crime of obstruction, it cannot be established by lawful exercises of executive prerogatives. A president, of course, may not subvert an investigation by unlawful actions — e.g., by conspiring to suborn perjury or bribe witnesses (cf. Clinton, Nixon). Illegal acts could amount to actionable obstruction. But the president’s dismissal of subordinate executive officials (such as the FBI director), and his exercise of prosecutorial discretion (by merely weighing in on whether a person — here, Flynn — deserves to be investigated), are constitutional acts that are not judicially reviewable. Executive prerogatives that are not subject to judicial review may not be subjected to judicial review by indirection, under the guise of a prosecution.

This is not to say that lawful presidential actions are beyond reproach. Acts that do not transgress the criminal law may nevertheless be despicable. It is not a crime, for example, for a president to use the Oval Office for extramarital trysts with an intern, or to lie to the public about people being able to keep their health insurance. Nor am I contending that lawful presidential actions are unreviewable: The president can be impeached — just as the president has plenary power to fire an executive subordinate, Congress has plenary power to determine what constitutes high crimes and misdemeanors. If Congress believes that the president’s lawful exercise of an executive prerogative was corruptly motivated, Congress may remove the president. If, for example, there was a concrete basis to suspect the president of a crime, and the president pardoned his accomplices in return for their silence, the pardons would stand but Congress could impeach the president for abusing his power to conceal his misconduct.

But impeachment is not prosecution. If Congress believes that Trump has committed impeachable offenses, it is free to open an impeachment inquiry. Mueller is not Congress. He does not report to Congress. He is a subordinate officer of the executive branch whose job is to investigate and (if merited) prosecute crimes specified by his Justice Department superiors. A special counsel is not supposed to be Congress’s lawyer for the purpose of investigating non-crimes that might nevertheless constitute impeachable abuses of power.