Mueller’s Questions Prove His Investigation is Not About Justice
After a year of badgering everyone involved, Mueller found no acts of collusion with Russia during the election campaign. Now he’s trying to criminalize legal, Presidential functions and decisions after the campaign.
The one year anniversary of Special Council Robert Mueller’s investigation has come and gone with no evidence supporting the allegation that Candidate Trump partnered with the Russians to upend a certain Democrat election victory in 2016. Mueller’s assignment document, issued by the Department of Justice, instructs him to take over an existing FBI investigation into Russian interference in the election, including “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.”
After interviewing hundreds of witnesses and alleged suspects Mueller now wants to interview Trump personally. He has provided a list of 53 questions he wants the President to answer. The list was leaked to the New York Times and several websites. We’ve reproduced it here.
Based on Mueller’s assignment, above one would expect the 53 questions to drill down into alleged “coordination.” What did Trump do, or direct others to do – in coordination with the Russian government – during the election campaign? But if you think the questions should be about actions or conduct you’ll be disappointed. If you think the questions should be about the 2016 campaign, when Democrats and media insist there was “collusion” that denied Hillary Clinton her rightful victory, you’ll be disappointed.
It turns out that 43 of the 53 questions aren’t about the campaign at all. One is about the 2013 Miss Universe contest. Trump owned the contest then and the final event was held in Russia. Forty two are about events that occurred in the months and years after the election.
Nearly all the questions are designed to probe Trump for what lawyers call Mens Rea or guilty intent.
In a criminal trial the prosecutor typically must prove that the defendant both committed a criminal act and did so with mens rea or a criminal state of mind, with intent to commit the crime.
Pointing a gun at someone is a crime – assault with a deadly weapon. If Sam points a gun at Joe with the intent to shoot out of anger or hatred, Sam is guilty. But lack of mens rea/guilty intent can transform what would otherwise be illegal conduct into a legal act. If Sam believed Joe was about to attack Sally and pointed his gun while yelling stop, his state of mind, belief Sally was in danger and his intent to prevent harm to her would make him innocent of a crime. Even if Sam misunderstood the situation and wrongly perceived Sally to be in danger when she wasn’t, he could still avoid prosecution based on lack of mens rea – lack of guilty intent.
Perhaps the all-time, most famous example of a lack-of-mens-rea defense was provided to Hillary Clinton by then FBI director James Comey. The FBI had spent about ten months investigating her use of a private email server in her home to transmit and store classified materials while she was Secretary of State. She could have been charged with violation of several federal statutes. Probably the easiest violation to prove to a jury would have been 18 US Code 1924 (a):
Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than five years, or both.
Secretary Clinton had simply refused to use the government’s secure email system provided to her by the State Department. Instead she removed classified materials in digital form from government servers and transmitted them through, and then retained them on, her private, unsecured, home server – a clear, unambiguous violation of the law cited above.
In his public announcement of the conclusion of the FBI investigation Director Comey ticked off the smoking gun evidence of a crime the FBI had found on her server:
- “110 e-mails in 52 e-mail chains contained classified information at the time they were sent or received.
- “Eight of those chains contained information that was Top Secret at the time they were sent;
- “36 chains contained Secret information at the time; and
- “Eight contained Confidential information, which is the lowest level of classification.”
But he also offered this astounding opinion in her defense:
…we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information…
So, Mrs. Clinton was not prosecuted. Her flagrant, illegal acts – sending and storing more than 150 emails with classified information on her home server – were excused because Comey declared, preposterously, that she didn’t intend to send and store classified information on her home server. He never explained how he reached that conclusion.
Can mens rea cause legal conduct to become illegal? Suppose Sam grabs his gun from the closet while harboring thoughts of shooting Joe for insulting Sally the day before? If his guilty thoughts become action and he threatens Joe at gunpoint he commits a crime. But, if he reconsiders and puts the gun back in the closet there is no crime. No matter what his thoughts or guilty intent at the moment, his conduct, taking a gun out of a closet and then putting it back, is not illegal. A legal act can not be transformed into a crime via mens rea.
Yet nearly all of Mueller’s questions for Trump are attempts to turn mens rea on it’s head – to turn legal conduct into a crimes. Let’s consider a few examples:
Question: “What was your reaction to news reports on Jan. 12, 2017, and Feb. 8-9, 2017?”
The reports were that Michael Flynn, whom Trump had appointed as his National Security Advisor, had phone conversations with the Russian Ambassador after the election, during the transition period. The calls were not illegal but Flynn is alleged to have lied to the Vice President about them. Trump’s reaction, his thoughts about the news reports are irrelevant because it was not illegal for him t0 to read or view or listen to news reports.
Question: “How was the decision made to fire [National Security Advisor] Flynn on Feb. 13, 2017?”
Question: “Regarding the decision to fire Mr. Comey: When was it made? Why? Who played a role?
The Constitution gives the President unconditional authority to fire Executive Branch officials, no matter how or why his decision is made. Period. He is not required to have a decision making process that is acceptable to Mueller. Thus, There is no basis in the law for asking these questions and no legal reason for the President to answer them. And again, these decisions were not made during the campaign, the time period Mueller was assigned to investigate.
Questions:
- What was your opinion of Mr. Comey during the transition?
- What did you think about Mr. Comey’s intelligence briefing on Jan. 6, 2017,
about Russian election interference? - What was your reaction to Mr. Comey’s briefing that day about other
intelligence matters?
None of these questions have any proper basis in law. There is no right or wrong answer because no answer can turn Trump’s legal conduct – forming an opinion of Comey and listening to intelligence briefings – into crimes.
Question: What is the reason for your continued criticism of Mr. Comey and his former deputy, Andrew G. McCabe? [Trump fired Comey in March, 2017. The FBI fired McCabe in March, 2018]
It is NOT under any circumstances illegal for the President to continue criticize either man. Obviously, Mueller’s hope is Trump’s answer can be repackaged and presented as Mens rea/guilty intent. But it simply does not matter why Trump continues to criticize. No matter what his reason, his conduct is legal. Period.
Just as the police can’t pound on your door and demand that you justify legal conduct and then arrest you for the “wrong” answer, a President can’t be prosecuted for his legal, Constitutionally authorized conduct, no matter what his thoughts or intent.
Is there any precedent for prosecuting legal conduct based on guilty intent? Well, it turns out that sadly, there is. Andrew Weissmann, a federal prosecutor, did just that. In 2001 Enron Corp. an energy company was indicted for various financial crimes. Enron was a client of the Arthur Andersen Accounting firm. Mr. Weissmann was on the “Enron task force” and decided to criminally prosecute Arthur Andersen Co. for legal conduct based on alleged guilty intent. The company and several executives were convicted.
On appeal the US Supreme Court, in a rare unanimous ruling, overturned the convictions. The details of the case are in the Court’s opinion here. Sadly, Mr. Weissmann’s malicious prosecution had already caused the destruction of the Arthur Andersen Accounting Co and the jobs of 72 thousand employees.
Mr. Weissmann is now Mueller’s lead prosecutor.
There is a way, only one way, to punish a President for his thoughts or motives behind legal, Constitutionally authorized actions: Impeachment. This is a political, not criminal justice process. There is no need to prove beyond a reasonable doubt that a President did something illegal. All it takes a simple majority of the House of Representatives and a two-thirds majority of the Senate to agree that a President’s actions and/or motives were unacceptable.
But, under the Constitution, impeachment must be initiated by the House of Representatives. Mr Mueller has absolutely no authority over the process.
Only five of Mueller’s questions ask about any action by then candidate Trump during the 2016 campaign. He should offer to answer those, and only those questions. Trump is on firm Constitutional ground to refuse to answer all of Mueller’s mens rea questions.
Mueller’s investigation is a Constitutional Crises and must, somehow, be brought to a close.
