Thursday, May 17, 2018

What Is Mueller Up To?

Fox News: "Giuliani: Mueller told Trump team he won't indict president"

The intent by Mueller appears to be under the cover of a Special Prosecutor investigation of Russian Collusion with associates of President Trump during the 2016 Campaign, which is now an exposed fraud, to build a case for Obstruction of Justice and other charges that can then be used by the Democrats to push for Impeachment after the midterm elections.

There is no legal means for the federal Executive to bring charges against a sitting President. The Constitution clearly lays out that if a President is suspected of high crimes such as treason or bribery, the word misdemeanor that followed probably meant to apply more to what we now consider felonies, then he should be Impeached and if he is convicted and removed from office then he could be charged and brought to trial through the normal judicial process. There is no provision to first bring criminal charges through the Executive and Judicial branches and then Impeach.

The Congress has the power and resources to conduct its own investigations prior to deciding whether to Impeach. They can also receive information from prosecutors, or anyone else, when in the course of normal business information about impeachable misconduct is exposed. In this case that is not what is happening. Congress did not form its own Impeachment level investigation under the Judiciary Committee. That was partly because with the Republicans controlling both the Executive and the Legislative branches the Democrats could not control an investigation in Congress. Unlike with Watergate they could not present a spectacle to the public. Congressional committee reports have already declared that there is no grounds to consider Collusion charges against the President and that the Mueller investigation should be wound down. The minority Democrats have demanded an open ended fishing prosecution that defies over 350 years of constitutional and legal doctrine. They had to rely on an outside Special Prosecutor.

That is why they concocted the entire fantastic and convoluted plot to have Rosenstein first maneuver Sessions into recusing himself, and then have Rosenstein appoint Mueller as a Special Prosecutor for what they already knew was a fraudulent investigation, since both Rosenstein and Mueller should have known that the FISA warrant was bogus, and then have Rosenstein first advise the President to fire Comey, and then use that to pressure the Congress into demanding that the President not fire Rosenstein and Mueller. That in effect constituted a coup d'etat with an unelected and unaccountable power controlling what are Star Chamber proceedings. Anything produced by Mueller is the fruit of a poisoned tree.

There is a question as to how to investigate misconduct by a President when his partisans control Congress. Under the federalist conception of the Union the Senate does not Impeach it only conducts the subsequent trial but if the Senators were more independent, as they were before the adoption of the XVIIth Amendment, then they and the states could provide a check against a criminal and oppressive Executive supported by the House. Similarly if a criminal in the Executive was supported by a plurality of rural or small states against the interests of the majority of the population then the House could serve as a check. It is a defect of the modern system that one faction can control so many levers of power. In addition to repealing the XVIIth Amendment other means of reducing the influence of national parties and distributing power back to the states can be considered.

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