“The indictment or criminal prosecution of a
sitting President would unconstitutionally undermine the capacity of the
executive branch to perform its constitutionally assigned functions.”
-- DOJ opinion, October 16, 2000
The Department of Justice has long held that it would
be unconstitutional to criminally charge and prosecute a sitting
president. The Constitution itself expressly states that “indictment,
trial, judgment and punishment” can occur only
after a president is convicted upon impeachment (Article 1, Section 3).
However, there is nothing to prevent a special counsel from
investigating a president and leveling an
accusation
with no formal charge. The accusation could be completely manufactured
and meritless. Proving it in a court of law would be irrelevant because
impeachment is a political act, not a legal one.
A similar scenario has played out before. Independent
Counsel Ken Starr investigated President Bill Clinton and leveled
accusations of obstruction and perjury which then triggered Clinton’s
impeachment. After he was acquitted and left office, Clinton was never
indicted because prosecutors knew the case lacked the kind of proof
needed in court.
So, is this what special counsel Robert Mueller and
fired FBI Director James Comey have in mind? Are they now acting in
concert to conjure a case of obstruction where none exists … for the
sole purpose of precipitating possible impeachment proceedings? There is
nothing to stop them from doing it.
It is a legitimate question, given their cozy
relationship. They also have a motive to harm President Trump –
retaliation for the firing of Comey.
Mueller Has Unfettered Discretion
Mueller, as special counsel, has unlimited latitude
and unchecked discretion. Because he cannot indict the president, he is
unconstrained by the usual burden of proof to which prosecutors must
adhere in bringing a case.
The Washington Post reports that Mueller is
investigating whether Trump obstructed justice during a White House
meeting with Comey and in his subsequent termination. If the Post story
is true, the president should be concerned that he may not be treated
fairly. Why?
Is Mueller determined to exact retribution for the
firing of his good friend? Will he be tempted to ignore the law, the
paucity of evidence, and the normal requirements of proof in order to
bring a specious case of obstruction against the president?
Because on its face, there is no obstruction of
justice. Trump’s alleged statement to Comey bears no resemblance to the
requirements of the statute. “Hoping” that “a good guy” will be cleared
is not a “corrupt act” as the law defines it and as the U.S. Supreme
Court interprets it. There must be a lie, threat or bribe. Comey
alleges none.
Moreover, the act must be, as the high court said,
“immoral, depraved or evil.” An expression of compassion is the
antithesis of that. Therefore, under no legal interpretation could the
president have obstructed justice.
Forgotten in all of this is the fact that the
president denies he ever uttered the words ascribed to him. With no
known witnesses, no reasonable prosecutor would ever consider bringing
such a case based on one person’s word. It is the definition of
reasonable doubt.
As for Comey’s firing, it is evidence of nothing.
Comey admitted this himself when he wrote, “A president can fire an FBI
Director for any reason, or no reason at all.” He reiterated the point
during his Senate testimony.
Indeed, the president has the constitutional authority to end an investigation, which Comey also admitted, albeit reluctantly.
Even if Trump canned Comey out of frustration because
the Director refused to tell the public that the president was not
suspected of Russian collusion, it is still not the corrupt act required
for obstruction of justice.
Why, then, would an obstruction investigation be undertaken at all?
Mueller Has Not Recused Himself
The special counsel’s failure to disqualify himself
as the law demands invites suspicion that any desire to bring an
obstruction case rests not in the law and the facts, but in something
else.
As explained before, the special counsel statute requires Mueller to step down if he has a
“personal
relationship with any person substantially involved in the
investigation or prosecution.” It then defines personal relationship as
a
“friendship… normally viewed as likely to induce partiality” (28 CFR 45.2).
The Mueller-Comey friendship is well-documented and
indisputable. They have long been friends, allies and partners. Their
bond is driven by a mentor-protégé relationship which makes the
likelihood of favoritism and partiality self-evident.
Yet Mueller shows no sign of disqualifying himself
from the case in which his close friend is the pivotal witness. It is an
acute conflict of interest. Even the appearance of a conflict merits
mandatory recusal.
Perhaps this means that the special counsel is
not
investigating an obstruction charge against the president, as the Post
claims. Maybe the reporting based on anonymous sources is erroneous.
But if there
is such a probe, then Americans are entitled to wonder why Mueller has not recused himself.
Is he determined to exact retribution for the firing
of his good friend? Will he be tempted to ignore the law, the paucity
of evidence, and the normal requirements of proof in order to bring a
specious case of obstruction against the president - knowing full well
that Congress might take it up as grounds for impeachment once the
accusation is made?
It is also suspicious that the Acting Attorney
General, Rod Rosenstein, has not recused himself. As Mueller’s boss, he
oversees the investigation. If obstruction is, in fact, being
examined, then Rosenstein is a key witness in the firing of Comey. It
is inconceivable that Rosenstein could serve in the capacity of both
prosecutor and witness without rendering the entire matter a charade.
Trump has referred to Mueller as “conflicted” and has
questioned the objectivity of Rosenstein. But the president and his
legal team have yet to mount a strong public case that both men should
be allowed nowhere near the investigation.
If it becomes clear that obstruction of justice is
the subject of the special counsel’s probe, President Trump should not
fire Mueller and Rosenstein. Instead, he should demand they resign so
that a fair and impartial special counsel can be appointed to preside.
Anything less might permit a false case of obstruction to trigger a debate in Congress over impeachment.
Gregg Jarrett is a Fox News Anchor and former defense attorney.