Mueller’s Last Stand

Watching the competing Mueller twits during the pair of House committee hearings was a bit surreal, as the sides waged the battle of interpretation, that his testimony either conclusively nailed the coffin on Trump’s presidency or exonerated Trump of all wrongdoing. As Ken White perceptively twitted, the hearings conclusively proved that everyone’s beliefs were proved.

If you care to review the testimony, there is no shortage of passionate pundits in the bigly papers to tell you what to think, what it means and what will or should happen from here. Some of these brilliant folks are lawyers who should know better, but refuse to be humbled by either knowledge or capacity to understand what the Mueller Report said and found. They have a cause that needs their support, and they will use every tool at their disposal to spin this sucker as hard as they can. If they can convince you, convince a nation, they can put this matter to rest.

It’s likely that there will be no more public appearances by Robert Mueller, no more public discussions of what his report, available to be read over and over if that’s how you enjoy spending your leisure time, says. And there should be no doubt that it says exactly what Mueller and his people intended it to say. What it does not say is that either side wants it to say.

It does not exonerate Trump.

It does not prove Trump’s guilt.

What did you expect? But more to the point, Mueller was special counsel to the Department of Justice, a prosecutor. Even if he had arrived at a conclusion of guilt, it would have most constituted an accusation. Prosecutors don’t get to convict people. Prosecutors get to charge people. They conduct investigations and reach their conclusions, but they’re their conclusions, not our conclusions or a jury’s conclusions or, in this case, the Senate’s conclusions.

On the flip side, the notion of exoneration is lost on most people, since there is rarely proof of the negative, that a crime wasn’t committed or that the accused didn’t commit the crime. Our system is structured such that the party with the burden of proof must prevail or the accused, guilty or innocent in some existential sense, walks free.

There was smoke going into the investigation, or there would have been no reason to begin this investigation in the first place. But this wasn’t an episode of Nancy Grace, her southern drawl informing us, “where there’s smoke, there’s fire.” That may be good enough for the homebound and terminally unemployed, but lawyers, and particularly Mueller, need to produce more than an aphorism to make the case.

There was substantial evidence of efforts made by Trump and his administration (and family, to the extent there’s a difference) to thwart and end this investigation into whether there was “collusion,” the silly word that became a mantra to the unduly passionate. But that was a teaser for the public and pundits. Did he do it? Was it a crime? Did the President of the United States, Donald J. Trump, commit the crime of obstruction of justice? Did he, Bob. DID HE?!?

Those who rely on Mueller’s Report, Mueller’s testimony, need to bolster the man, for if he’s lacking, whether in integrity or capacity, then his work product falls short of serving as the weapon of Trump destruction. Others condemn Mueller’s failure to give America the one thing we asked of him, demanded of him: the answer.

Trump proclaimed, naturally, that he was exonerated, but that’s obviously ridiculous. There was no conclusion that he affirmatively did not commit the crime of obstruction. It was theoretically possible that he could be exonerated, that Mueller would find evidence to prove that Trump knew nothing about anything, never sought to stymie the investigation or worse. That didn’t happen. Not by a long shot. Trump was not proven innocent.

But Trump was not proven guilty, either. First, the concept doesn’t apply to Mueller’s Report, which was never more than an investigation by an independent prosecutor. It was never to prove anything, but to ascertain whether there was a factual basis to accuse Trump of a crime, after which it would be up to an appropriate authority to make the determination.

But beyond the limitation of the word “proven,” it would have been a very different report had Mueller found a video of Trump handing Putin a paper bag filled with cash, saying “now fix the election for me, Vlad.” Or an Oval Office tape of Trump telling Don McGahn, “just make sure everybody tells the same lies, Don.”

But that didn’t happen. Instead, there is evidence suggesting rampant impropriety, but not certain enough to call “proof” of the commission of a crime. Surely enough that, had this not been the president, it would be worthy of very serious consideration of an indictment, but this wasn’t some random guy against whom one would throw one’s evidence and see what sticks. It was the president.

Had there been confidence that Trump was a Machiavellian mastermind who knew exactly what he was doing, that might add weight to the evidence of his intentions. But the doubt caused by the belief that he’s an ignoramus, or suffering from senile dementia, or just a reality TV host barely capable of putting together a cogent sentence, undermines the value of the evidence. Mueller was left with the facts he believed could be proven, but with a broad swathe of ambiguity between the conduct emitted a horrible stench and a crime.

Lawyers are used to this. Most of the time, we have no clue whether a crime was committed and who committed it. We have an enormous tolerance for ambiguity because we fight in this gray area of uncertainty. Hard as we argue, we’re well aware that we don’t actually know what really happened. As the burden of proof is on the accuser, as it must be, the question is ultimately resolved by whether the proof of guilt is sufficient to sustain the burden. It may mean a guilty guy walks, but we can live with that as the way our system works.

The public does not possess this tolerance for ambiguity. They see TV shows which tell them who’s guilty. They read newspaper articles which tell them who’s guilty. They expect a conclusive answer, and that’s what they demanded of Mueller. Mueller gave us an answer, that the evidence does not exonerate Trump by a long shot, does not prove innocence, but also does not prove guilt to the extent that it is sufficiently conclusive to take down a president. Lawyers should be able to understand this answer, even if the public cannot.

As the burden of proof is on the accuser, it has fallen short. It doesn’t prove Trump’s innocence, but it doesn’t prove his guilt either. This is the space within which lawyers live, and Mueller gave us a lawyer’s report. As for the political question about impeachment, that has nothing to do with law.

36 thoughts on “Mueller’s Last Stand

  1. Norahc

    Douglas Adams said it best…
    “The President in particular is very much a figurehead — he wields no real power whatsoever. He is apparently chosen by the government, but the qualities he is required to display are not those of leadership but those of finely judged outrage. For this reason the President is always a controversial choice, always an infuriating but fascinating character. His job is not to wield power but to draw attention away from it. On those criteria Zaphod Beeblebrox is one of the most successful Presidents the Galaxy has ever had — he has already spent two of his ten presidential years in prison for fraud.”

    Who knew we elected our own Zaphod as President?

    1. Dan

      He elsewhere concludes that anyone capable of being elected President should by no means be allowed to do the job. I think he had a point.

  2. Hunting Guy

    Doesn’t matter what either side thinks of him.

    He still has the nuclear launch codes.

  3. B. McLeod

    It is good that we have no real problems, so Congress and the media can spend days and weeks conducting these elaborate shows. I think they don’t understand that circuses are not supposed to be boring.

  4. Skink

    “The public does not possess this tolerance for ambiguity. They see TV shows which tell them who’s guilty. They read newspaper articles which tell them who’s guilty.”

    Explaining why this is wrongthink is increasingly impossible.* Not long ago, as in recent years, conversations in airport bars with non-lawyers was somewhat successful. By explaining the requirements, reasons and process of our constitutional government in a slow manner produced some enlightenment. Not so in the last couple years. Basic constitutional requirements are barely said before faces harden and words such as, “yeah, but he’s. . .,” are uttered.

    People are so set in their position that they not only do not consider the opposite, they will not see the neutral: the law. The attempt is not even considered. It’s like showing someone a dog, but the person insists the dog is a gator. One might explain that a gator has no fur, but it matters not–it’s a gator.

    *SHG, I am not giving up.

    1. SHG Post author

      When facts and logic gave way to the alternate reality of emotional experience, there really isn’t much to argue about. You can’t even argue about their entitlement to their believe their fantasy to the death. And these are the highly educated ones.

  5. Cinnamongirl

    It’s not a circus. Congress has oversight responsibility and the obligation to hold the executive branch accountable under the Constitution. Mueller, through his report, proves there is smoke but he didn’t find the gun. Pelosi is now working through the courts to obtain the evidence, the smoking gun, assuming it exists, to move forward with impeachment. Checks and balances between the 3 branches is the most important pillar of our democracy.

    1. SHG Post author

      Putting on a dog and pony show isn’t oversight responsibility. It’s a palliative to the most ignorant and gullible of the unduly passionate masses, short of the actual obligation to impeach a president if he’s done something worthy of impeachment. As for Pelosi “working through the courts to obtain evidence,” that’s some good weed you’re smoking, but you’re gonna have one hell of a headache when the high wears off.

      1. Cinnamongirl

        I didn’t find it palliative in the least. Mueller frustrated both sides with his non-answers. But when the vanilla media such as CBS evening news has the headline -Mueller does not exonerate the President. Mueller states the investigation was not a witch hunt – it was important for the masses to hear. Especially those who are not lawyers, reporters and media junkies and don’t dive too deep, if they dive at all. The base won’t care but the moderates, independents and suburban women who will decide the next election just might be paying attention. For the Dems to lay out the obstruction of justice in simple terms through screens was worth it.

          1. Miles

            Now that it’s clear who you are (based on your subsequent comment), allow me to explain why this is ironic. You were personally destroyed by the forces of social justice, forced to leave your job, suffered depression, endured your “colleagues” calling you a “raging racist” for not acquiescing to their social justice will and taking a bullet for the cause.

            It’s not that Trump isn’t awful, but that you would put the same sort of people who destroyed you into positions of power, knowing how they too will abuse it, hunt you down and burn you at the stake for your heresy?

            Nero may fiddle as Rome burns, but the alternative will scream with glee as you burn. If anyone should know this, it’s you.

            1. Cinnamongirl

              The point of the whole thing is to keep Trump’s criminal behavior in the spotlight to win over swing voters. I don’t think the moderate Dem candidate I will be supporting will burn me at the stake, but thanks for clarifying. The lawyers who targeted me have serious issues and my employer gave them a public forum to vent their hate. It’s nothing more than that really. So, no I don’t see the irony.

    2. Jardinero1

      “Congress has oversight responsibility and the obligation to hold the executive branch accountable under the Constitution. ” This statement is factually incorrect. While Congress persons claim to exercise oversight on the Executive Branch and hold hearings as such, from time to time; the Constitution does not delegate any oversight authority to Congress over the Executive Branch, except in the discrete case of Impeachment.

      1. Cinnamongirl

        How do they get to impeachment in the court of public opinion, which is the only one that matters, (as the Senate is useless) without conducting due diligence?

        1. Jardinero1

          There is nothing in the Constitution about a court of public opinion or due diligence either. Impeachment requires a simple majority vote by the House. The House makes its own rules on voting.

        2. SHG Post author

          You lost it first on the court of public opinion. Then you lost it again on due diligence. You just had special counsel investigate and report, but a bunch of reps are going to put on a dog and pony TV show for the hysterical idiots and that’s due diligence? Hate Trump all you like, but hate him with actual thought instead of this crap.

          If you want to be taken seriously, then write serious things. Or go to the beach. Your call.

          1. Cinnamongirl

            What I write is not crap. There is a political reality that can’t be ignored. I agree with Pelosi that we have to lay down the best hand for impeachment and that must include public support. That’s why the Mueller testimony was relevant. There are cases pending in the courts that will help gather more evidence. At least Dem leadership is doing something. No one else is. Maybe they’ll never find the smoking gun, the tape, whatever and we lose. So we tried.

            There is a reason I don’t hang out with lawyers anymore. I temporarily lost my mind a few weeks ago. However, I do thank you SHG for posting about my lawsuit. I hope something will come of it that will help my colleagues still in the trenches. But, I have left the war zone and won’t be going back. My focus now is quality time remaining and yes that includes the beach.

            Love and peace to all of you,

            1. cthulhu

              “There is a political reality that can’t be ignored”
              Jack Bruce has something to tell you, and it will make you sad:

  6. D-Poll

    Unless I’ve profoundly misunderstood the concept of exoneration, which I’m not willing to rule out, I think your definition as applied to this case is too strict. In general, one usually calls a “not guilty” verdict an exoneration regardless of whether the spectral ‘actual innocence’ was affirmatively proven or guilt was simply not proven, yes? Would you say that that usage is wrong? If not, I’m not sure this example is so easily distinguished; at the very least the distinction must be more than just the lack of affirmative proof of innocence.

    I confess that I have freely used “exoneration” to describe dismissals of charges and decisions (like this one) not to prosecute due to insufficient evidence heretofore. If I’m wrong to do so, I’d like to know.

      1. D-Poll

        I thought you might say that. I take your point; there’s a world of difference between a final jury verdict and a prosecutor just saying “nah”. If a jury verdict never happens, though, doesn’t excluding the decision not to prosecute from counting as an “exoneration” feel at least a little like a “perpetual dissent”?

        Still, I don’t want to waste any more of your time arguing about words and their jelly-like edges. Thanks for clarifying your position; I do find it compelling even if I’m still uncertain.

    1. Skink

      “I confess that I have freely used “exoneration” to describe dismissals of charges and decisions (like this one) not to prosecute due to insufficient evidence heretofore. If I’m wrong to do so, I’d like to know.”

      You’re wrong. As SHG explained, prosecutors decide whether there’s enough evidence to bring charges. Exoneration is not a result of that decision–that is left to juries, if at all.

      That’s the end of the Skink Free Legal Clinic for this month. The rest must be Skink-free.

  7. Elpey P.

    If he can’t provide the public and media with the correct conclusion, and if the alternative result isn’t in his purview, the best thing to do is get that water good and muddy.

  8. Black Bellamy

    Couldn’t they have just taken his DNA? And matched it? And also, there are security cameras EVERYWHERE! Why are we not seeing enhanced images with the proof that we need? Why didn’t anyone dust for fingerprints for chrissake? Surely there are carpet fibers, did someone forget their detective tape? There are literally dozens of bite-mark experts, and not a single one of them was called, and it’s obvious the man has to eat. With his mouth and teeth! They didn’t even do a line-up! The magnitude of this incompetence is so astounding as to immediately raise questions as to what backroom deal was made here. Not to worry, lie-detectors for everybody will solve this shit right quick.

    I feel victimized. It’s like I need to make a statement. With impact.

  9. losingtrader

    I thought I heard Sol say on Fox last night that this did exonerate Trump. I’m not sure who to believe here, I mean family relationships and all.
    I noted Sol did wear a nice hankie in his coat pocket. He looked superb.
    I didn’t bother listening to his podcast with Laura.
    I’d like to say the family is proud but they are all far left Democrats so Sol has been disowned.

  10. Pedantic Grammar Police

    The Mueller show is similar to The Jeffersons; it is a spinoff from a popular long-running show. Starring widely respected, apolitical straight shooter Robert Mueller, it details the daily grind of a straight-shooting prosecutor chasing the worlds most evil villain. Nobody is spared; even Mueller’s old friend Bob Barr is in danger of going to prison as these two lifelong friends join different sides and are at each other’s throats. Like most great shows, it has two audiences; those who love Mueller and those who hate him; both sides watch it religiously because they don’t want to miss any of the drama. What will happen? Will Trump and Barr go to prison, or will it be Mueller and his merry band of Democrats? Someone is going down… learn all about it in the next exciting episode.

Comments are closed.