Cheating in a game of cards can
involve “stacking the deck” –arranging the cards in a way that
advantages yourself while ensuring your opponent loses.
It appears that this is the way special counsel Robert Mueller has approached his investigation. Consider the evidence.
Mueller chose, of all places, the venue of
Washington, D.C., to convene a grand jury to examine evidence in the
Russia-Trump investigation. It would be difficult to find a group of
people more hostile to Trump than in the nation’s capital. The
president garnered a scant four percent of the vote there, compared to
Hillary Clinton’s 93 percent.
There was already a grand jury convened in Virginia
looking into the related Michael Flynn matter and Mueller could have
easily presented his case there. But no, that would run the risk of
being potentially fair to the president since the jurors there are more
apt to be politically bi-partisan. So, from the outset, Mueller dealt
himself a
high ace on his way to a royal flush.
His next card, a
king, is the grand jury process itself. Over time, this 5
th
Amendment principle has devolved into a one-sided farce, favoring only
the prosecution. Defense attorneys are not allowed inside what has
become a secret “star chambe,r, permitting no adverse party to challenge
the truth and credibility of witnesses through the test of
cross-examination. It gets worse.
There are no enforceable rules of evidence during
grand jury proceedings, which means that otherwise inadmissible hearsay
or double-hearsay is perfectly acceptable. Unauthenticated documents
are copacetic. Prosecutors are free to present only incriminating
evidence, to the exclusion of exculpatory evidence. All too often grand
jurors simply rubber-stamp a prosecutor’s instructions. Thus, the old
saying, “you can get a grand jury to indict a ham sandwich.”
With no meaningful limits on abusive tactics, the
entire system is anathema to fairness. A grand jury is to justice what
military music is to music. It bears no resemblance. My apologies to
John Philip Sousa, but you get the point. This is precisely why grand
juries, which were once in vogue everywhere, have now been banished in
all nations except the United States and Liberia.
Mueller’s
queen card is the Obama-appointed
judge likely overseeing the D.C. grand jury. Under local court rules,
Chief U.S. District Judge Beryl Howell is the one who presides over
decisions on grand jury subpoenas, witness testimony, any executive
privilege and possible 5
th Amendment assertions. In the
past, she worked closely with former Attorney General Loretta Lynch and
one of Mueller’s top staff lawyers, Andrew Weissman.
Indeed, Howell and Weissman co-authored a scholarly
law article that explored obstruction of justice… which just happens to
be part of what Mueller is reportedly investigating in the Russia-Trump
case. Betsy Woodruff of the
Daily Beast
uncovered this nugget. A conflict of interest? Surely. But don’t
expect a judicial recusal anytime soon, even though Judge Howell teaches
ethics at American University’s law school.
Dealing himself a
jack, Mueller has chosen to
hire for his staff an unconscionable number of lawyers of the liberal
persuasion. Out of 14 lawyers retained thus far, eight have donated to
Democrats while none appear to have contributed a nickel to Republicans.
Several of Mueller’s lawyers gave generously to “Hillary for America,”,
while another actually represented the Clinton Foundation. The special
counsel could have selected a more balanced team devoid of partisan
ties, but he deliberately chose not to do so.
Finally, Mueller is holding a precious
ten
card in the very man who hired him, Rod Rosenstein, the Deputy Attorney
General who authored the infamous memo advising President Trump to fire
FBI Director James Comey. In any obstruction case arising therefrom,
Rosenstein would be a prosecutor, investigator and witness all rolled
into one. Despite his glaring conflict of interest, Rosenstein has made
no move to step aside. Which means he is unlikely to fire Mueller for
his own similar conflict of interest.
As explained in
previous columns,
Mueller’s close relationship to the key witness, James Comey, creates a
disqualifying conflict of interest specifically forbidden by the
special counsel law itself (28 CFR 600.7 and 45.2), not to mention the
Code of Professional Responsibility which governs the conduct of
lawyers. Their record as longtime friends, allies and partners is
well-documented and indisputable.
It is inconceivable that Mueller could be completely
impartial in judging the credibility of his friend versus the president
who fired his friend in deciding whether to pursue a charge of
obstruction. Even scrupulously honest people can be influenced in ways
they do not recognize themselves. This is exactly why there are legal
and ethical rules that demand recusal based on prior relationships.
Even the
appearance of a conflict is sufficient for recusal. But Mueller remains on the job.
And so, the deck has been shrewdly stacked against
President Trump. Robert Mueller has dealt from the bottom of the deck.
There is a lot at stake on the table.
The only good hand the president may have requires a
trump card called innocence. Does he have it?
There is no bluffing in this game.
Gregg Jarrett is a Fox News Anchor and former defense attorney.
