For two years now, many in the right-leaning political/commentariat class have advanced the notion that Special Counsel Robert Mueller’s probe, which began as a counter-intelligence investigation into Russian interference in the 2016 presidential election but quickly transmogrified into a catch-all criminal probe against the president’s 2016 campaign and subsequent administration, would ultimately serve no purpose other than as grist for over-zealous Democratic impeachment efforts.
Those same folks should now feel vindicated, for they have been proven right.
As Daily Wire Editor-in-Chief Ben Shapiro and I both noted last week, the bottom-line conclusion of the much-ballyhooed Mueller report amounted to one giant punt. After finding no “collusion” between the Trump presidential campaign and the hostile Russian government, Mueller then essentially teed up a litany of non-indictable obstruction of justice-related grievances, refused (in a violation of rudimentary prosecutorial norms) to expressly exonerate Trump, and then essentially told Attorney General William Barr and Congress to take it from there.
Barr did what any sane person in his position would have done — take the special counsel’s finding of insufficient evidence adduced to prosecute, so concluded after a time-consuming investigation and voluminous written report, and completed Mueller’s logic after the special counsel bizarrely, in the words of Andrew C. McCarthy, “did not resolve one of the main questions he was appointed to answer” in the first instance. Barr having done what any attorney general in his position would have done, this then leaves the ball entirely in the hands of Congress to decide whether to pursue the political, non-criminal remedy of impeachment.
Put another way, it ought to now be obvious that the entire over-arching purpose of the Mueller probe was to do one thing: Hint at non-indictable obstruction of justice grievances in order to possibly tee up the filing of impeachment articles from an over-zealous Congress.
But this should have always been obvious to sober-minded observers.
Let’s start with what the Mueller probe itself actually started with: A counter-intelligence probe into Russian governmental interference in the 2016 presidential election. No one except the most hardened and most fringe trolls of “alt-right”/”alt-right”-sympathetic circles denied that Vladimir Putin and his menagerie of power-hungry oligarchs sought to interfere and sow discord in the presidential election. Indeed, Russian/Soviet attempts to sow discord in our domestic elections have a very long and sordid history. And to be sure, the Trump campaign engaged in no shortage of conduct that seemed oddly obsequious toward Russia: Trump himself personally mollycoddled Putin repeatedly, Donald Trump Jr. knowingly took a Trump Tower meeting with a Russian government-connected attorney after being promised the attorney might provide dirt on Hillary Clinton, and the hiring of Paul Manafort — a figure with a prolific history of pro-Russia lobbying, including his years spent shilling for Putin in Ukraine — was an unforced blunder.
But despite all the “smoke” that many saw emerge from shady statements or conduct during the election, it ought to have been obvious to any reasonably fair-minded observer that there was never — nor would there ever be — any “fire.” Put bluntly, allegations of actual Trump-Putin “collusion” — of then-candidate Trump and Putin hopping on a phone to discuss the dissemination of anti-Hillary Clinton WikiLeaks documents, how to sabotage Democratic voters in Wisconsin, and so forth — was always pure, unadulterated leftist/mainstream media fantasy. And the concerted leftist/mainstream media hyping of that fantasy, when the only origin of that fantasy was the utterly disgraced Steele dossier, is truly nothing less, as Lee Smith wrote at Tablet last month, than “the biggest political scandal in a generation.” The complete implausibility of this narrative all along does raise the question, as the National Review Editors put it, “why the special counsel couldn’t have issued an interim report long ago, dispelling the persistent — and poisonous — idea that Trump was about to be proven a traitor.”
Next is obstruction of justice — the focus of Mueller’s criminal probe, into which the initial counter-intelligence probe oh-so-conveniently morphed after the shameful (and partisan) origins of the Steele dossier was laid bare and the fantastical notion of “collusion” was, Adam Schiff’s ceaseless braggadocio notwithstanding, shown to be an utter farce to any sentient human being. There are numerous issues with this aspect of Mueller’s probe, as it pertains to Trump himself. Consider these two tweets from last Friday:
Let’s break this down a bit. It seems plausible that a sitting president can obstruct justice within the textual purview of the underlying federal statutes, from a black-letter law perspective — destroying evidence under 18 USC § 1519 is one concrete example. But whether a sitting president can truly “obstruct justice,” even if he does violate the clear text of one of the underlying statutes from a black-letter perspective, amounts to an argument more about linguistics than it does anything else. And the reason for this is because it is the longtime policy of the Office of Legal Counsel (OLC), which is housed within the Department of Justice, that “[t]he indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
This OLC conclusion is intuitive and flows naturally from the clear text of the very first clause (the “Vesting Clause”) of Article II of the U.S. Constitution: “The executive power shall be vested in a President of the United States of America.” Unitary executive theory, perhaps best personified by Justice Antonin Scalia’s canonical dissent in the 1988 U.S. Supreme Court case of Morrison v. Olson, thus posits that the executive branch is necessarily controlled, via the Art. II Vesting Clause, wholly and unequivocally by the president — the one and only individual in whom the Constitution vests the “executive power.” The ability to fully control law enforcement and remove all subordinate officers who hold such prosecutorial power, furthermore, is the very quintessence of the “executive power” of which that Vesting Clause speaks. So while it is senseless, fruitless, and, according to OLC, even unconstitutional to attempt to indict a sitting president as part of a criminal probe that he himself can always quash in the process of executing his constitutionally prescribed role, the remedy to contain a potentially compromised, venal, and/or obstructive president becomes necessarily political.
And that political check means two things, primarily: The ballot box and the filing of articles of impeachment.
The final result of the Mueller probe is thus its mere utility as a Democratic Party oppo research document for purposes of both the 2020 presidential campaign and the filing of possible articles of impeachment in the U.S. House. This situation clearly never should have transpired, for both partisan interest reasons and fundamental separation of powers reasons. If Congress sought to gin up incitement for impeachment articles, then Congress was perfectly capable of doing so with its own subpoena power and formation of ad hoc investigation committees. And if the Democratic Party wants an oppo research file, then that is what the DNC is for.
The whole situation is lamentable. But what is tragic is how obvious — and preventable — it all was.