The Russia Collusion Probe Must End
The Mueller "Russia collusion" probe has just received two judicial rebukes, one mild and one stern, from two different judges. After a year of furious activity, Special Counsel Robert Mueller's investigation may be hitting the end of its tether. This is not to impugn the integrity of Mr. Mueller or the small army of lawyers under him. Rather, this is merely to recognize the reality that politically charged criminal investigations like this one have an unfortunate habit of exceeding their lawful reach and developing a deadly form of mission creep.
So far the Mueller team has only mounted cases with very little relevance to Russia election collusion that it was selected to investigate.This raises the question whether Mr. Mueller has exceeded the legal authority given him under the appointment order from the Department of Justice (DOJ) on May 17, 2017 that was specifically limited to investigating "Russian interference with the 2016 Presidential election and related matters" and the August DOJ memo that granted permission to also investigate alleged lobbying for Ukraine by Trump associate Paul Manafort.
In the Manafort case, federal judge T.S. Ellis verbally lanced the Mueller team in open court recently, suggesting that their prosecution case wasn't really about "bank fraud" (the formal criminal charge that has been filed) but rather was about gathering any "material that would lead to Trump's prosecution or impeachment." Judge Ellis is currently pondering whether Mueller has over-reached his prosecutorial authority, stating, "We don't want anyone in this country with unfettered power."
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After that, a second federal judge turned down the Mueller team's request for a delay in the trial date in their case against an additional defendant, Concord Management, a Russian company. Further proceedings will go ahead in July despite the Mueller lawyers' plea for more time.
In light of this it's easy to understand Vice-President Mike Pence's call for Mueller to "wrap it up." The Trump Administration has already provided over a million documents to the Mueller team to aid their investigation, yet by all indications no evidence of campaign "collusion" with Russia has surfaced. In recent op-eds law professor Steven Calabresi has joined that chorus, noting not only the potential conflict of interest of Mr. Mueller in pursuing this inquest, but also pointing to a 1988 Supreme Court decision that noted the restricted authority that should be the hallmark of independent "inferior" level prosecutors like Mr. Mueller who are administratively appointed rather than confirmed by the Senate. As professor Calabresi points out, the ever-increasing scope of the Mueller probe far exceeds the authority that any single Senate-confirmed U.S. Attorney could wield.
We've seen politically charged cases take malicious turns before. Retired Marine Lt. Col. Oliver North, a member of President Reagan's National Security Council, was caught up in the Iran-Contra affair in the late 1980s and was charged with offenses almost entirely alleged to have arisen out of the Independent Counsel's investigation, rather than predating it. Like the Mueller probe, the North case looked like an investigation triggering a crime rather than discovering whether one had been committed in the first place. Col. North's case was so riddled with errors favoring the prosecution that the core of his conviction was rightfully reversed by the U.S. Court of Appeals resulting in all charges being dismissed. After all that legal effort, all that remained was the scorched earth left behind from the Independent Counsel's prosecutorial manhunt.
Prosecutors wield a stunning level of power and discretion. In light of that, the late Supreme Court Justice Robert Jackson once famously noted, "Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than cases that need to be prosecuted." In high-profile cases saturated with political overtones like the current "Russia collusion" matter, the risk of prosecutorial misconduct and overreach is even greater.
Most prosecutors do the right thing, and many of them have to scale incredible obstacles and even personal threats in their pursuit of justice. But those of us who have represented clients whose lives were damaged by abusive and improper prosecutions have witnessed first hand the personal collateral damage that can be caused. When an investigation rises to the level of the current Russia proceeding, however, the stakes are even higher, because it naturally has a distracting affect on the Executive Branch and its duty of governance. Beyond that, an abusive investigation can cause the public to loose faith in its legal system. A CBS poll this month revealed that 53% of Americans believe that the Mueller investigation is "politically motivated" and not "justified." The ancient mandate that "officers" of the law should operate "with righteous judgment" and not "distort justice" Deuteronomy 16:18-20, still holds, and the consequences when that is ignored can be devastating.
After twelve months of its disruptive work, it is time for the Mueller investigation to end.
