Andrew C. McCarthy: Robert Mueller Violated Prosecutorial Standards By Smearing Trump Without the Evidence For an Actual Criminal Charge

Dirty cop.

In his report, Mueller didn't resolve the [obstruction] issue. If he had been satisfied that there was no obstruction crime, he said, he would have so found. He claimed he wasn't satisfied. Yet he was also not convinced that there was sufficient proof to charge. Therefore, he made no decision, leaving it to Attorney General William Barr to find that there was no obstruction.

This is unbecoming behavior for a prosecutor and an outrageous shifting of the burden of proof: The constitutional right of every American to force the government to prove a crime has been committed, rather than to have to prove his or her own innocence.

This is exactly why prosecutors should never speak publicly about the evidence uncovered in an investigation of someone who isn't charged. The obligation of the prosecutor is to render a judgment about whether there is enough proof to charge a crime. If there is, the prosecutor indicts; if there is not, the prosecutor remains silent.

If special counsel Mueller believed there was an obstruction offense, he should have had the courage of his convictions and recommended charging the president. Since he wasn't convinced there was enough evidence to charge, he should have said he wasn't recommending charges. Period.

Anything else was -- and is -- a smear. Worse than that, it flouts the Constitution.

The Federalist's Margot Cleveland agrees:

After two years and spending an estimated $35 million, Robert Mueller issued a 448-page report that ignored the governing special counsel regulations. Those regulations required Mueller, at the conclusion of the special counsel's work, to "provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel."

Yet, instead of issuing the mandated closing documentation, Mueller explained that his team "determined not to make a traditional prosecutorial judgment" of whether "to initiate or decline a prosecution."

Attorney General William Barr spoke during today's press conference of Mueller's failure to perform this regulatorily required duty. When asked why he and Deputy Attorney General Rod Rosenstein felt it necessary "to take it to the next step to conclude there was no crime," Barr retorted:

The very prosecutorial function and all our powers as prosecutors, including the power to convene grand juries and compulsory process that’s involved there, is for one purpose and one purpose only. It’s to determine yes or no, was alleged conduct criminal or not criminal. That is our responsibility and that’s why we have the tools we have. And we don’t go through this process just to collect information and throw it out to the public. We collect this information. We use that compulsory process for the purpose of making that decision. And because the special counsel did not make that decision, we felt the department had to. That was a decision by me and the deputy attorney general. Yes.

Yet Mueller wrote that if Trump had proven that he clearly was innocent, then Mueller would have declared him such.

The burden lies on Trump? And at the "clear and convincing evidence" standard of evidence?

The "clear" standard is a high standard of evidence, a midpoint (or so) between the civil courts' preponderance of the evidence standard and the criminal courts' requirement of the state to prove every element of its case (including intent) beyond a reasonable doubt.

And this burden, we're now told, did not lie with the state but with with the accused.

It's not just that Trump must prove his innocence by the lesser preponderance-of-the-evidence standard -- he must prove his innocence by the clear evidence standard.

That's one step shy of saying that Trump must prove his innocence beyond a reasonable doubt.

Why stop at the "clear and convincing" level? Why not shoot the moon, Andrew Weissman?

And because Trump did not meet this made-up standard of providing the prosecutor "clear" evidence of his innocence, Mueller hits him with a "talking indictment" and smears him.

posted by Ace of Spades at 07:01 PM

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