Rule of law

Checks and Balances Updates

A statement on the Mueller Report and other things

|The Volokh Conspiracy |

Last fall, I joined a group of conservative and libertarian lawyers to form Checks and Balances to speak out in defense of constitutional governance, traditional legal norms and the rule of law.

I have not blogged much about organization's activities and efforts here, as I've figured those who are interested could check out the C&B website or Twitter feed.

That said, I figured some may be interested in the statement several of us issued on April 23 on the Mueller report.

In addition, C&B members Donald Ayer, Stuart Gerson, and Paul Rosenzweig wrote this op-ed for USA Today explaining how the Mueller Report's contents demonstrate the extent of the President's contempt for the rule of law (and the role of lawyers).

For more, check out the @chkbal feed and C&B website.

NEXT: Spotted at a Neighborhood Restaurant

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  1. Fancy pants lawyers talk about the “rule of law” but ignore the fact that liberals basically engineered the entire fake Russian collusion with the treasonous goal of unseating a duly elected President.

    1. Years ago, when black helicopters were a thing, I pointed out to some of my liberal friends that they were going to be very hard to debunk. Problem was, the shattered lives the conspiracists actually lived were little different than the lives they would have been living had their loony theories been true. To them, at least, it didn’t much matter if it was black helicopters, or something else, so why not the helicopters?

      This time it’s Russians, and the liberals get the role of the conspiracists. On the internet, nobody is going to be able to tell if comments like Jimmy the Dane’s little anti-fact rant above come from Russian trolls or not. And it doesn’t really matter, does it? Might as well ascribe them all to the Russians.

      1. As I point out every time when somebody references “black helicopters” in this manner, the black helicopters were real.

        They weren’t particularly nefarious, but they were real.

        The special forces needed urban combat training, so they were contracting with big city governments that had abandoned buildings, and doing night training in them. (Later on, the government, IIRC, built it’s own abandoned city someplace for training purposes, so the sightings stopped.)

        The government didn’t want fanboys showing up during their training, so any time somebody spotted these helicopters, (They were dark, not invisible!) they got the “Black helicopters? You’re imagining things!” line, and the people went off and tried to come up with their own explanation for why there would be black helicopters without running lights flying around a city, and the government denying they existed.

        I point this out, not because black helicopters are very important in their own right, but instead because the story demonstrates something important about conspiracy theories: They thrive where they get blown off instead of investigated and rationally evaluated. The program in question wasn’t all that secret, the media COULD have investigated and explained them, instead of making the term into shorthand for “crazy conspiracy theory.”

        But they didn’t, so they really did get a crazy conspiracy theory.

        1. This is not how conspiracies work. The light of more media scrutiny does not make them less plausible, it makes it more so and wider disseminated.

          Do you really think that media stories of ‘black helicopters are kind of a thing, but honestly not that sinister!’ would 1) garner readers, and 2) be believed among the black helicopter set??

          The media’s culture leaves a lot to be desired, but conspiracy theories are one thing that isn’t their fault.

          1. Brett is making up the story, plus the “black helicopters” conspiracy theory typically was about United Nations black helicopters coming to do whatever the feckless-except-when-taking-over-the-US UN was going to be doing.

            1. I have no idea if what Brett wrote was true, but the UN thing is irrelevant to his point. His point was that people actually saw black helicopters and had false beliefs about them. You’re pointing out that they were supposed to be UN helicopters instead of US ones.

      2. Ummm….it is not an “anti-fact” that Russian collusion was clearly a setup and a treasonous attempt to overthrow a duly elected President of the United States. That is called a fact and it is readily apparent to just about anyone and everyone.

        1. Saying that akshually something is clearly true, and that everyone secretly agrees with you that it is clear isn’t really a comeback. Says more about your pinched worldview than about anyone you’re replying to.

          1. That is a good one Sacrasted. Please tell us another one. How about a funny joke about how since there was no Russian collusion the Democrats had nothing left but to gin up some fake obstruction of justice accusations? Oh wait that isn’t a joke. That is what they had to do.

            1. Considering how much you need to repeat this story, I wonder if even you believe it.

              1. Are you saying there was Russian collusion? If so, why are you trying to repeat an anti-fact like that?

                1. I said is that your ‘Dems were lying about the need for an investigation’ was more story than truth. You switched on a dime to no collusion, which is less far-fetched, but requires increasingly narrow and legalistic definition of conclusion.

                  Switching like that…almost as though this isn’t argument, just contradiction.

                  1. OK, to be clear, some subset of ‘Dems’ were lying about the need for an investigation, because that subset were aware that the investigation was premised on nothing more than smear fabricated by Hillary’s campaign. This subset would have included most of the Democratic leadership, of course.

                    But I think it would be fair to say that most ‘Dems’ would not have known this to be a fact, and would not have had the motivation to connect enough dots to figure it out, so, yeah, most ‘Dems’ wouldn’t have been lying in saying an investigation was needed. Just mislead.

                    1. The start of the FBI investigation was not the Dems. Nor was it the Dossier.

                    2. I agree that the dossier didn’t start the investigation, it merely served as a pretext to expand it once they knew Trump was going to be the nominee.

                      But what exactly did you mean by claiming the start of the investigation wasn’t the Democrats? There was, of course, some opposition research conducted by the other Republican candidates, but in terms of deployment of federal police and intelligence resources, that was absolutely on the Democrats.

                    3. He likely means that the investigation started with career FBI agents who he imagines are entirely apolitical.

                      Never mind that the FBI has been meddling in US politics since J Edgar Hoover.

                    4. MatthewSlyfield – maybe not apolitical, but no reason not to think they were professionals. And certainly not acting on orders of the Democratic Party.

                    5. “but no reason not to think they were professionals.”

                      No reason to think they were either.

                      “And certainly not acting on orders of the Democratic Party.”

                      If they were Democrats acting for political advantage, I think whether they were acting on their own or on the orders of party officials is largely irrelevant to the current discussion.

                    6. MS, you need some proof if you’re going to make up a story about partisan FBI agents acting to persecute the President. Building it off of assumptions won’t cut it.

                      And any story you come up with will not really fit with the Hillary did it narrative being pushed, nor the Obama did it narrative.

                    7. “MS, you need some proof if you’re going to make up a story about partisan FBI agents acting to persecute the President. ”

                      I take it you don’t follow the news, then? Didn’t look at the Page and Strozk text messages? This isn’t just some “story”, it’s been proven to have happened, the only real question is how extensive it was.

                    8. Brett,

                      1) they didn’t open the investigation.
                      2) they hated Hillary as well.
                      3) not liking Trump is not at all proof they did anything untoward. Though I know making that leap is like your signature move.

                  2. The FBI began the investigation of their own internal accord, based on reports of Papadopoulos shooting his mouth off.

                    1. Sacastrated is delusional. The investigation was started by career bureaucrats within the administration for political reasons based off of a dossier paid for by the DNC. They used that to spy on the Trump administration and later demand an special counsel to investigate fake charges of Russian collusion. THIS IS ALL KNOWN. The only people who try to deny it are delusional liberals who are grasping at straws because they still want some semblance of hope to impeach Trump.

                    2. Jimmy, you may wish to seek alternative alternative facts. Even Brett has left the old story you’re pushing behind. (see: 11:57)

                    3. More proof that you have gone full retard. There is nothing of the sort above. Get help.

                    4. The FBI might have started the investigation of its own internal accord, but it didn’t have any justifiable predicate.

                      I’m quite happy to let the investigations sort this all out, then let the bloodletting begin.

                      The idea that the FBI is some sterling organization was debunked long ago with the Bulger scandal, Ruby Ridge and its coverup, the crime lab debacle, the Clinton email coverup, and now politicized spying on a presidential campaign.

                    5. The FBI might have started the investigation of its own internal accord, but it didn’t have any justifiable predicate.

                      They, and their inspector general, and the DoJ, disagree.

                      No one has to say the FBI is blameless to say you need evidence before you decide it’s in a conspiracy.

                2. Since “collusion” is not a legal term, the question is vague. There are different possibilities:

                  1) Trump is a Russian agent. Putin tells him what to do, and Trump does it (either because the Russians are blackmailing him or paying him).
                  2) Trump and Putin reached an agreement in which Trump said, “You help me get elected, and I’ll do X for you.” (Or Putin said, “We’ll help you get elected, and then you’ll do X for us.”)
                  3) Putin and Trump had shared goals. Russia did stuff to help Trump, which Trump was happy to accept, and Trump was happy to do stuff for Russia.

                  There was obviously no #1. Mueller couldn’t find sufficient evidence of #2. And there’s lots of evidence for #3.

        2. This is clearly true, for clinically-delusional definitions of “setup,” “treason,” and “overthrow.”

  2. Thank you, Jonathan.

    1. Yeah, thanks. I know it’s obvious that “[t]he Special Counsel team conducted itself professionally and in the highest traditions of the Justice Department,” but I have Just a few questions. Did the Special Counsel’s failure to provide the AG with a confidential report explaining his prosecution or declination decision on the obstruction question represent professional conduct in the highest traditions of the Justice Department? Is it now the standard for all prosecutors to prove conclusively that no criminal conduct occurred? Did leaking the protest letter to the press on the eve of Barr’s appearance before the senate judiciary committee represent professional conduct in the highest traditions of the Justice Department? Did the childishly whiny complaints in the letter itself represent professional conduct in the highest traditions of the Justice Department?

      1. Don’t be an idiot, MKE.

        There was, by DOJ policy, never going to be a prosecution of Trump for obstruction.

        So any discussion of what Mueller might have done in respect of that decision is nonsense.

        What he did makes perfect sense. He said that based on the evidence, he could not exonerate Trump (despite what you and Brett and A.L. and others seem to imagine). That was his limit.

        1. Mueller is the guy who wanted to play special counsel. The main thing the damn regulations required him to do as special counsel was to provide a report explaining his prosecution or declination decisions. He failed to do that and passed the matter to the AG. If a political appointee could make that decision in the first place, why the hell did we need a special counsel in the first place? And, what did he try to produce in vol. II? A road map to impeachment? Not the role of a special counsel and a clear abuse of his office. And since when do prosecutors “exonerate” people? What happened to the presumption of innocence? Not on planet Mueller. The man is a damn disgrace.

          1. Funny how no one considered having a public report to be misconduct until…actually, no one really does except you, MKE. Not even the MKE of the past, as I recall.

            If the President is unindictable, as OLC said, then laying out the case for congressional action up to and including impeachment is the only rout possible.

            Prosecutors determining that there isn’t enough evidence to indict, but not enough to drop the case? That’s not some shocking awful thing either.

            Between this and AL’s ‘open indictments of foreign nationals is malpractice’ the straw grasping is real.

            1. Don’t know where to begin. How about the regulations? 28 CFR 600.8(c): At the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel. So, it was Mueller’s job (his sole job really) to produce a “confidential report” explaining his prosecution or declination decisions. The schmuck couldn’t manage that; or I should say, he lacked the professional integrity to produce a document consistent with controlling regulations. Instead providing the AG with a childish dissertation detailing whatever “evidence” he thought might embarrass the president, knowing that the report was certain to be released to the public. That this was likely intended as a “roadmap” for impeachment is not, contrary to your view, a saving grace. It rather clearly demonstrates the perverse abuse of authority engaged in by the special counsel, a prosecutor (an inferior article II officer) not a staffer to a Congressional committee.

              And, “Prosecutors determining that there isn’t enough evidence to indict, but not enough to drop the case? That’s not some shocking awful thing either.” It is seriously shocking if you believe in the presumption of innocence.

              1. …Barr’s the one who released the report to the public, MKE.

                It is lawschool…well, not 101. Maybe 201 that the presumption of innocence is during a criminal proceeding. There’s actually case law to that effect – a not guilty verdict may still be used as evidence of guilt in a later evidentiary proceeding, in fact.

                Your claim of any expertise as to prosecutorial conduct is false. You’re grasping at straws.

                1. Uh…What? I’d like to respond. Really. But I honestly have no idea what you’re trying to say. So, I’ll stand by my own comments and let whatever you said in non-response to me stand for whatever it means.

                  1. Basically, your understanding of presumption of innocence and a prosecutor’s duties thereby is something you do not share with anyone else.

                    1. And your complaining about the Mueller’s public report just shows you see the news through a glass darkly.

  3. It’s almost as if one’s natural reaction is to express unbridled contempt for a politically oriented witch hunt based on ginned up charges engineered by ones’s political opponent and aided and abbeted by the previous administration. What was attempted against Trump was something that you see in banana republics or fictional political thrillers, not something that should have occurred in the US. The fact that Clinton had that kind of pull should make anyone who would call themself a libertarian thanking whatever deity they worship or first principle they follow that she did not obtain the presidency.

    1. There is no coincidence that whenever the Clintons have been investigated for crimes many people seem to have untimely deaths or just disappear…

    2. A reminder : The investigation into Trump and his associates wasn’t “ginned up”. It started when a drunk campaign aide bragged to a foreign diplomat the Russians had dirt on Clinton. Other events ensuing :

      1. Trumps NSA head lies to his Vice President about contacts with Russia
      2. His campaign head gives private briefings to a man U.S. Intelligence had listed as a Russian Intelligence asset.
      3. Trump’s son-in-law asks the Russian if he can use their secure communication lines for secret messages to the Kremlin.
      4. Trump’s son is told in a (documented) message the Russian government wants to aid Trump’s campaign. He responds with (documented) glee.
      5. Trump’s fixer is secretly negotiating with the Russian government about a Moscow business deal throughout the campaign. Trump’s people discuss offering Putin a high-dollar sweetener to grease the way. Trump bald-faced lies to the American people about this 2-3 dozen times as the negotiations proceed.

      Of course this is only a partial list, but it’s more than enough to prompt an investigation of any major politician, particularly given the systematic campaign by Russian Intelligence to make Trump president.

      You really must beware of post-Mueller hindsight. Consider Trump’s obsequious fawning over Putin during the campaign. Now it’s pretty clear he was using the U.S. election to try and close a business deal in Russia. Then it was much more mystifying

      1. You’re now in the “long-form birth certificate” stage.

        1. And yet everything above is well-established fact…..

        2. Funny how disdainful rightists are about birthers these days, when they were cheering them on not so long ago.

          Have you forgotten that Trump was one of them?

  4. It does demonstrate the depths of the President’s contempt for the rule of law. Demonstrates that it’s about a millimeter deep. Mueller faced no substantive interference at all. No claims of executive privilege, he got to talk to anybody he wanted to except the President, where he had to settle for written answers.

    Which are just fine unless you’re trying to manufacture perjury.

    Nobody on his staff of partisan Democrats and veterans of political frames got their kneecaps broken, or family pets killed.

    The only guy who got fired was somebody who everybody thought needed firing, and had for months.

    I mean, too bad he was Mueller’s best bud, and too bad that Mueller got passed over for the head of the FBI position he’d been hoping for, but neither is the stuff of obstruction.

    As for contempt of lawyers, they earn it.

    1. Yep.

    2. Oh yeah.

      Written answers, including a ream of “I do not recall” are just fine.

      What nonsense, Brett. Among other things, written answers don’t allow for followup questions, further probes into unclear answers, etc. They also allow long consultation with one’s lawyers

      Mueller wanted an interview, but you know better. He only wanted to trap Trump into a lie? More paranoid conspiracy theory nonsense, though it is likely Trump would lie, as it seems impossible for him not to.

      1. Unless you have a photographic memory, you’re going to reply “I do not recall” an awful lot when asked detailed questions about events that occurred months and years ago, unless they happened to generate written documentation.

        Written answers absolutely do permit follow up questions and probes into unclear answers, (As well as making unclear answers less inevitable.) though not instantly. And unless you’re actively trying to entrap somebody, why would you object to their consulting their lawyer?

        1. I don’t object to their consulting their lawyer. I do object to them having days and days to hash out the answers.

          Do you really think Trump was going to agree to answer followup written questions? That’s ridiculous.

          And do you really think Mueller was just trying to ensnare Trump somehow?

          You’re in “Indians not taxed” territory, blindly and foolishly defending your man Trump whatever happens.

          1. Yes, based on his conduct in the case of Flynn, I do believe he was just trying to ensnare Trump.

            Based on his hiring, so far as we can tell, only Democrats for staff, I do believe he was just trying to ensnare Trump.

            Based on his involvement in framing Ted Stevens, and retaliating against the whistle blower who exposed the misconduct, I do believe he was just trying to ensnare Trump.

            Based on his own dirty history, I do believe he was just trying to ensnare Trump.

            Mueller isn’t clean as the driven snow, he just plays somebody clean for the cameras.

            1. Yes, based on his conduct in the case of Flynn, I do believe he was just trying to ensnare Trump.

              What conduct was that? Even if asking Flynn straightforward questions could be called “ensnaring” him, Mueller had nothing to do with that. It happened give months before Mueller was appointed.

  5. How does Mueller’s investigation/report get conflated with Checks and Balances?

    The Checks and Balances come from the constitutionally designed framework (People, States, Congress, President, Supreme Court), not from a single executive branch investigation.

  6. Meh.

    The largest issue here are the “public” releases of the Russia probe and their coordination with the media, contrasted with the President’s response. Here’s why.

    If this was a confidential, nonpartisan investigation, designed to hunt out and eliminate Russian collusion, there would be no reason for the President to interfere. He didn’t do anything, he knows he didn’t do anything. and thus would be cleared.

    Unfortunately, this was not a confidential, nonpartisan investigation. Every discovery, potential discovery, lead, and indictment was loudly and publicly discloses, through official channels or leaks. The primary purpose of the investigation became political, not criminal. One of the best examples here, was the public indictment of the Russian companies, which the DOJ was in no position to actually prosecute. So, as a “political” investigation, in the public sphere, the President needed to respond. Because it’s politics now, not a private investigation.

    But, politics and Obstruction of Justice don’t overlap well. For example, if Trump said “This investigation and the public releases are killing me in the polls. We need to get it done faster. Is there anything we can do to speed it up?”…. That’s obstruction of justice according to some.

    It’s the overlap that creates a catch-22 for the innocent man. Just sit there, doing nothing, while the political commentary kills you, or try to do anything, even just exploring potential options, and suddenly it’s obstruction of justice.

    The best answer would be a truly confidential investigation, if that’s what is wanted. Not a political theatre show, which is what the political opposition wanted.

    1. So your proof the investigation was partisan was that the indictments were released publicly, and that there was press coverage? You don’t think that if it were partisan that Mueller would have leaked quite a bit more, given the road his investigation went down?

      And obstruction of justice law not overlapping with politics shouldn’t mean mean that it is the law that gives way.

      1. Sarcastro,

        Look at the indictments against the Russian Companies and Russian individuals. Why were they made? Why were they made public? Is there any better way for an individual to avoid prosecution than knowing they are indicted (but in a different country). Why on earth weren’t these indictments sealed, to be unsealed when the individuals could be picked up in a friendly or US country for actual trials?

        1. You seriously don’t know why we publicly indict overseas agents who act against our country?

          This wasn’t the firs time, nor will it be the last.

          1. Why? Why did we do it, when it would hurt our chances of actually apprehending the criminals. Why indict the companies (some of which didn’t even exist at the time)? Why? Please explain it.

            1. Here is Sarcastrated’s response:

              You don’t know what you are talking about. I do because I do and you don’t because you don’t. If you believe something else I will accuse you of not understanding and not even bother to explain because you can’t understand. Only enlightened liberals get this kind of stuff.

              1. You act like I’m citing myself in an appeal to authority. I’m actually citing long-standing DoJ precedent.

                Burden is on you to show this is a departure from precedent.

                1. Actually, you made certain assertions, but you didn’t actually cite a damn thing.

                  1. FFS. I assumed people know that the DoJ has in the past indicted overseas people they won’t be able to bring to trial.

                    Do you deny that, and demand I call up examples, or are you just being snitty?

                    1. “I assumed people know that the DoJ has in the past indicted overseas people they won’t be able to bring to trial.”

                      No need for examples.

                      However, the fact that individual USAs or AUSAs have done this in the past, does not necessarily make it official DoJ policy.

                      Though it fairly strongly indicates that there is at least no official policy against doing it.

                    2. I’d say the burden is on the person claiming this is new and extraordinary.

                    3. It’s neither new nor extraordinary, but you went beyond that to claiming it was POLICY. If you want to hold to that claim, the burden for it is YOURS.

                2. Precedent != policy. Don’t move my goalposts.

                  AL was claiming it was proof of partisan intent that we indicted overseas people, because he thinks it’s not useful. I never claimed it was some firm policy, only that he was talking out of his hat.

                  1. This is a mischaracterization of my position. Typically we indict foreign individuals UNDER SEAL. This helps ensure that when these individuals hit US shores, they can be apprehended. The recent Chinese birth tourism case is an excellent example.

                    Mueller indicted Russian individuals and companies not under seal. The last is particularly reprehensible, because companies don’t need to show up in person to defend themselves. AND companies get discovery. By indicting Concord Management and Consulting, it ensured the Russians would get discovery documents on the counterintelligence investigation. So, for a few political points, Mueller ends up undermining the US counterintelligence on Russian Meddling. That is absurdly partisan, and idiotic.

                    1. Mueller indicted Russian individuals and companies not under seal. The last is particularly reprehensible

                      You don’t get to make stuff up just because it sounds plausible in your head. This is not reprehensible, nor is it some strange departure from precedent, as you claim.

                      I just went to the DoJ public affairs website and searched ‘foreign national’ and ‘indict’ and found a bunch of counterexamples:

                      Romania
                      Iran
                      Russia, but not Mueller

                      You think it makes too much sense not to be true, I’m sure. But check next time, lest you be lying and not know it.

                    2. My comment with the links is in moderation.

                      Mueller indicted Russian individuals and companies not under seal. The last is particularly reprehensible…

                      You don’t get to make stuff up just because it sounds plausible in your head. This is not reprehensible, nor is it some strange departure from precedent, as you claim.

                      I just went to the DoJ public affairs website and searched ‘foreign national’ and ‘indict’ and found a bunch of counterexamples.

                      You think it makes too much sense not to be true, I’m sure. But check next time, lest you be lying and not know it.

                    3. Once again, your “quote” leaves out the necessary reason WHY it was reprehensible.

                      Specifically Mueller’s indictment undermined current US actions against Russian election meddling.

                      The fact you ignore this is telling…..if you really cared about Russian election meddling.

                    4. Perhaps you’re not fully aware of the idiots in the Mueller campaign who decided to openly indict Russia companies, including Concord Management.

                      See, they didn’t expect the company to show up to court…but they did.

                      Then Mueller tried to get a delay in the proceedings, saying “they weren’t ready”. Despite bringing the indictment. That ship didn’t sail.

                      Then the Russians got discovery on large chunks of the investigation

                      That have now been used online to discredit the very Russia probe and help Russia meddle more.

                      So, to restate, for a short term political gain, Mueller decided to help the Russians interfere in the election by letting them have access to thousands of sensitive documents.

                    5. Where are you getting your story??

                      I did a search for Concord Management, and all I found <a href="https://www.politico.com/story/2019/01/30/mueller-special-counsel-russia-twitter-1138293"was Mueller opposing their discover because Russian troll accounts tried to hack him and interfere with the trial.

                      Mueller wasn’t ready? You’re telling stories.

                      And I see you’ve moved off of ‘this was an extraordinary measure’ to ‘this was an unwise measure based on a story I will not bother to support.’

                      I’ll take the win, but posting different BS is still posting BS.

                    1. You: Then Mueller tried to get a delay in the proceedings, saying “they weren’t ready”. Despite bringing the indictment. That ship didn’t sail.

                      Your link:
                      “The Mueller team proposed that both sides file briefs in the coming weeks on the issues of whether Concord has been properly served.
                      In a blunt response Saturday morning, Concord’s attorneys accused Mueller’s team of ignoring the court’s rules and suggesting a special procedure for the Russian firm without any supporting legal authority.”

                      What the hell man, do you think I can’t click on links? At this point it’s looking an awful lot like you’re just a liar.

                      And you still very much moved away from your original argument about unsealed indictments of foreigners.

                    2. I tire of your games and dishonesty.

                      The very first line of the link reads “A federal judge has rejected special counsel Robert Mueller’s request to delay the first court hearing in a criminal case charging three Russian companies and 13 Russian citizens with using social media and other means to foment strife among Americans in advance of the 2016 U.S. presidential election”

                      The fact you need to reach halfway down the article to pick someone out of context that doesn’t prove my point is….disingenuous at best.

                      We’re done here.

                    3. I went to the part that discussed the reasons behind the delay, dude.

                      I’m not being dishonest, but you sure seem to be.

                      Certainly the ‘they weren’t ready’ part seems to be BS.

    2. “He didn’t do anything, he knows he didn’t do anything. and thus would be cleared.”

      This is theory at an elementary school level. Let’s restrict ourselves to four points :

      1. A large part of Mueller’s remit was a counter-intelligence review of Russian interference in the election. Some of Trump’s crudest lying and weaseling has been in denial of Russia’s actions. Apparently Trump was willing to sabotage an investigation into this national security matter for his personal convenience.

      2. Speaking of which : I don’t think there’s legal justification permitting obstruction of justice because an investigation is inconvenient, whether you bring in politics or not.

      3. Even if Trump knew he personally didn’t collude, he had no knowledge whether there were legal issues with other people in his campaign. Take Trump’s campaign head, Paul Manafort. He was deeply in debt to Ukrainian oligarchs tied to the Kremlin, yet took on the Trump job unpaid. His past is littered with fraud. No one could be sure how much he was compromised until the investigation concluded. Trump, of course, didn’t care.

      4. Even if Trump knew he didn’t collude, he certainly worried over any long & detailed investigation into his affairs or those of his associates. Again, there’s no exemption to the laws on obstruction of justice if you’re afraid other criminal conduct might emerge.

      1. #2 True. On the other hand, there’s no settled law that a President’s use of his Article II powers can constitute an obstruction of justice, even assuming (for the sake of argument) corrupt motives.

        The President can lawfully fire anyone at DoJ or the FBI who does’t qualify for civil service protections, with or without cause.

        This would include Mueller, since the Independent Council Act lapsed more that a decade ago and has not since been reauthorized by Congress, and Mueller as special prosecutor was supposedly appointed under the AG’s inherent power, which to the extent that the AG has any inherent power, said power is entirely derivative of the President’s Article II powers.

        1. People more knowledgeable than myself on these issues say a president can’t even be charged with a crime. Given that’s true, I’m not sure how settled law applies. Obstruction of justice would be a political judgement; the standards which apply to everyone else the only guide.

          So let’s take Trump in the Oval Office after he fired Comey, bragging to Russian Ambassador Sergey Kislyak and Foreign Minister Sergey Lavrov that “I faced great pressure because of Russia. That’s taken off.” That action would be viewed thru the political process of impeachment, in context of the totality of his actions, with the common legal definition of obstruction as the measuring rod. Right?

          1. “That action would be viewed thru the political process of impeachment, in context of the totality of his actions, with the common legal definition of obstruction as the measuring rod. Right?”

            Wrong. “with the common legal definition of obstruction as the measuring rod” actions that the President is legally allowed to take as part of his article II powers can’t be obstruction and there would be no impeachment proceedings.

            Impeachment against Trump is futile. Everything at every level of the proceeding will be viewed as pure politics. There is zero possibility that the current Senate votes to remove Trump.

            The earliest possibility for an effective impeachment will be 2021.

            However, at that point it’s either moot (because the Dems won the White House) or it’s likely to remain futile, as if Trump is reelected, it think it’s very likely that the GOP keeps control of the Senate. And even if the Dems win control of the Senate, they are exceedingly unlikely to achieve a 2/3rds majority (which would be necessary for an impeachment conviction on a party line vote).

            1. P.S. This idea the Democrats have of an independent DoJ is pure fantasy. All of the AG’s authority, other than Congressional authority delegated to the DoJ by statute is necessarily derivative of the President’s power, and any decision by an AG can be legally reversed by the President.

              1. The DoJ has acted independently when it comes to oversight matters without much of a problem. Your legalistic argument is in contravention of just about the entire modern relationship.

                Check out the Saturday Night Massacre for how this works.

            2. You : “Wrong. “with the common legal definition of obstruction as the measuring rod” actions that the President is legally allowed to take as part of his article II powers can’t be obstruction and there would be no impeachment proceedings.”

              I’m well outside of my lane here but – hey – that’s what the internet is for, right? So I want to know where you get your “settled law” standard when their is no mechanism for law to apply save by impeachment, there are only a handful of words in the Constitution defining impeachment, and the case histories number two, spaced 130 years apart. Non-lawyer tho I am, I’m betting your “settled law” ain’t very settled at all….

              As for “every level of the proceeding will be viewed as pure politics”, can you imagine a scenario where that wasn’t the case, whoever is president? Impeachment IS a political process, which is why your attempt to cordon off a safe space where Trump can trash any investigation against him seems empty legalese.

              PS : I agree impeachment is futile. Trump could shoot a random stranger on Fifth Avenue and the Senate GOP would have his back

      2. 0. Trump is elementary school level.
        1. Still…not collusion
        2. Obstruction of Justice (OoJ) is the interesting case here, because of how broadly Mueller is interpreting it. Typically (but not always), it’s used for Witness and Evidence tampering. The Clinton Impeachment case is an excellent example. The OoJ were primarily witness tampering and concealing evidence. Trump’s supposed OoJ violations are the opposite. The only example of “concealing evidence” was Mueller’s point where Trump tried to prevent the PUBLIC disclosure of evidence. This…is absurd as an OoJ violation. Trump wasn’t trying to conceal it from investigators, but from the media and public. Mueller is clear here. Yet, for some reason he includes it. I’m not sure what world it is, when attempting to prevent public disclosures of private information to the media (but not investigators) is obstruction of justice. But if it is, there are a lot more people guilty of OoJ. Like just about every American.

    3. You assume Trump’s innocence as proof of his innocence.

      1. We’re allowed to assume Trump is innocent, the burden is on you to prove he’s guilty.

        1. Brett, I know you’re not this dumb. Tautologies aren’t proof of anything.

        2. Tendentious buffoonery, Brett.

          A.L. argues that the President is innocent because he’s innocent.

          If this was a confidential, nonpartisan investigation, designed to hunt out and eliminate Russian collusion, there would be no reason for the President to interfere. He didn’t do anything, he knows he didn’t do anything. and thus would be cleared.

          Since, per A.L., Trump is obviously innocent, the investigation is a “witch hunt,” and Trump is entitled to interfere.

          That’s pure bullshit, but you buy it, just like you buy all the other crap, like Mueller being a Democratic operative.

          1. Again, a miscategorization of the actual argument made.

          2. It isn’t “Trump is innocent of charge A because he’s innocent of charge A.”; That would be stupid.

            It’s “Trump is innocent of charge B because he’s innocent of charge A.”, where charge B is obstructing the investigation into charge A. It goes to motive: Corrupt motive is central to obstruction of justice charges where the allegedly obstructive acts are themselves not crimes. Being innocent of the charge being investigated makes having corrupt motives for the supposed obstruction less plausible.

            1. No, this is still a tautology. That logic makes successful obstruction of justice never a crime, if you add your extra strong presumption of innocence (or AL’s just bare conviction) of into the mix.

  7. The fact that Clinton had that kind of pull.

    [Comey is] Mueller’s best bud.

    Trump didn’t interfere at all.

    [T]he treasonous goal of unseating a duly elected President.
    =================

    1. Did Obama engage in Obstruction of Justice with his public comments in the Clinton case, in your opinion? Why or Why not?

      1. Obama was obstructing justice by not releasing his long form birth certificate when there was a reasonable question to his citizenship. So were officials in Hawaii who could have easily turned it over to the proper authorities.
        Instead Obama had to wait until they could photoshop up a decent looking long form certificate. And even the final product couldn’t face scrutiny.

        1. You’re going to pass the Man of Many Names on the insane comments scale pretty soon, if you don’t watch out.

      2. We’ll add to this.

        Trump asked Comey to “let the Flynn Matter go”

        Obama publically stated (basically, not an exact quote) “The entire Clinton thing is just a mistake she made. There was no intent”.

        What’s the difference?

        1. What’s the difference?

          Interfering with an investigation vs. professing a belief that the subject is innocent?

          Are you a lawyer? I can believe that someone with legal training could make such absurd arguments. What I can’t believe is that you graduated from college.

          1. Both “interfered” with the investigation. The only difference is Obama’s interference was successful, because it happened before charges were filed. From all reports, the FBI investigation of Hillary was a sham, we a pre-arranged opinion that there wouldn’t be an indictment, handed down by the DOJ ahead of the investigation.

            Of course, when the sitting President of the United States is publically telling everyone (including the FBI) she’s innocent, and the DOJ is privately telling you there won’t be an indictment, no matter what pops up…well, that might impact the investigation. And it did.

            1. Obama’s interference was successful, because it happened before charges were filed. From all reports, the FBI investigation of Hillary was a sham

              Your articles of right-wing faith are better than your more fanciful notions, but not really enough to prove anything to anyone not already of your partisan faith.

            2. Obama did not tell people she’s innocent. He told people that what she did didn’t endanger national security. Since that’s not an element of the offense, it’s irrelevant to the legal process.

    2. This op-ed is sad. It just sounds like a bunch of butt hurt lawyers trying to argue why they should be relevant. Just sad.

    3. The responses to this thusfar are birtherism, complete misunderstandings of how obstruction of justice works, and empty insults against the OP.

      What a place we’ve become.

      1. Oh please do educate us then oh enlightened one? Perhaps you would appreciate it more if we bowed down to you and worshipped you like some sort of god-king.

        Please keep on ignoring the fact that Mueller was on a witch hunt and could have easily concluded about six months into the investigation there was no Russian collusion. Instead he spent another 1.5 years trying to find anything to justify his massive public expense.

        And since there was absolutely no collusion (something which you would think so called “rule of law” lawyers would be celebrating the fact the President wasn’t in the tank with Russians) they had to move the goal posts to fake up obstruction of justice.

        What am I missing here?

        1. Please keep on ignoring the fact that Mueller was on a witch hunt and could have easily concluded about six months into the investigation there was no Russian collusion. Instead he spent another 1.5 years trying to find anything to justify his massive public expense.

          How could he have “easily concluded,” before talking to, inter alia, Manafort, Gates, Trump, Trump Jr., Kushner, or Cohen, that there was no collusion?

      2. So you are trying to defend the fact that Obama obstructed justice by not producing his legal birth certificate when there was a reasonable question of his citizenship? I mean it isn’t obstruction by how the law is commonly understood but now that we live in this new enlightened age where lawyers tell us about the “rule of law” and can just make up a new definition of obstruction, why not include this? Maybe we should have a special counsel investigate Obama because, well, why not?

    4. Pretty hard to argue with the Clinton Body Count List. Yeah….all those people just happened to disappear or pass away while active investigations were happening. Sure. Right. If you believe that have a nice igloo in FL to sell you.

      1. Oh please do educate us then oh enlightened one? Perhaps you would appreciate it more if we bowed down to you and worshipped you like some sort of god-king.

        I’m not the one arguing from authority, chief.

        Pretty hard to argue with the Clinton Body Count List
        Other than how confirmation bias works?

        1. No you are just assuming that you are the authority and that anything which runs contrary to your belief is the same as believing in black helicopters.

          So how else do you explain the 100’s of people on the Clinton list or great one?

          1. Explain to me how you are being any different, other than not even bothering to engage with anyone as you push out your unsupported and ever-changing story.

            Being in politics, the Clintons met a crapload of people over the years. Of the many, many, people they’ve been associated, some fraction of them dying is not surprising. Mere appeal to ‘this number seems big’ is probative of nothing.
            https://www.snopes.com/fact-check/clinton-body-bags/

            1. Well I just heard a Dem Congressman claim further Trump investigations are warranted because there are so many ongoing that he must be guilty of something. So what is it? A few hundred dead related to Clinton means nothing, but a dozen or so politically motivated investigations means something? Right?

              1. Well, that Dem is dumb. But sounds like so are you?

  8. I can’t contest the point that Trump doesn’t conduct himself in a manner befitting the office. Nevertheless, I find the “legal gallantry” here a bit much.

  9. These comments confirm that a hive of delusional, stale-thinking, doomed malcontents is the proper home for The Volokh Conspiracy, perhaps the foremost example of thinking among movement conservatives who are law professors.

    They also suggest that several Conspirators — Profs. Adler, Somin, and Kerr, most prominently — have become a poor fit with the Conspiracy (and with the Trump strain of conservatism).

    1. Keeping on believing that you Clinger. The right-libertarian values will continue to permeate society and bubble up to bring new and greater liberty and freedom to our land. You can continue to live in the past or you can join us for a new and brighter future that will make America great again. My guess though is that you will continue to be a clinger and grasp on to the last straws of your age.

      1. You figure right-wingers have been winning the culture war?

        Open wider, Jimmy.

        1. This is exactly what a Clinger would say. Keep on living in your delusional world.

  10. The C&B statement and the McGahn section of the USA Today editorial falls well short of any meaningful analysis of alleged obstruction by the President. I guess they felt is wasn’t necessary. Unlike USA Today, there was no word limit for Alder.
    Let’s see some analysis in view of the June 2018 Barr memo to Rosenstein regarding Mueller’s theory of Presidential obstruction.

  11. Such virtue signaling.

    Orange Man Bad. I get it.

    Law is a servant and most people have contempt for lawyers.

    1. Posting just a blanket ad hominem is not a sign you have much of an argument.

      Look at your side on this thread. Clinton death list; fundamental logical fallacies; birtherism; calling the Mueller report the new birtherism; demanding proof and then moving the goalposts.

      It stinks of weakness and fear; no amount of casual waiving-off will change that.

      1. Its not worth arguing.

        Everyone took from Mueller what they thought beforehand. Priors all confirmed.

        The political reality is that after screaming collusion for 2 years, obstruction won’t fly. Polls say most people think he probably obstructed but don’t care.

        Impeach or STFU. Or beat him in 2020.

        Gallup now has Trump higher than Obama or Reagan at similar points. Take what you want from that too.

        1. I’d say bah nihilism but you care enough to post, so there’s a bit more to you somewhere down there.

          1. Trump committed no crime, he was acting within his Article II powers to control his subordinates. Subordinates cannot have independent power in our system, he can [and for practical purposes must] delegate but he can revoke the delegation or give instructions whenever, and for whatever reason. All prosecutor descretion is vested in the president because its a core “executive power”.

            If Congress thinks otherwise, they can impeach and convict.

            “Checks and Balances” are weak knee “lawyers for the deep state” to paraphrase Newt Gingrich about Bob Dole. Basically preferring a Democrat to someone supported by 85-90% of conservatives because “Trump is not our kind, dear”.

            1. Hence the vapid argument “if Trump was not President he would be charged with obstruction” which is stupid because the only reason Trump could do what he did is the fact that he is President.

              Full retard libs would like us to believe that the President must cease being President when he is being faced with an illegal witch hunt investigation that concluded he violated no laws.

              1. I freely admit that Trump firing the FBI director as a private citizen is troubling.

  12. The libs here have gone full loon. They can’t believe that Trump didn’t collude with the Russians and are sickly sad that he didn’t betray America. Instead now they are engaging in continued treasonous behavior just because Orange Man Bad. It is both sad and sort of funny to watch.

    Time to get some more popcorn and watch Sarcastrated try to explain again how Trump colluded (wait that one failed) now they moved the goal posts to obstruction to see how that one works out.

  13. Very odd. Why publish such over the top obsequious comments, proclaiming conduct “in the highest traditions of the department of justice”? Wouldn’t a thorough professional report speak for itself? Apparently, even the president’s critics recognize, at some level, that this report was a schlock hit job and thus need to try their best to defend it with such silly commentary.

  14. We are grateful for the service of Special Counsel Robert Mueller and the team of prosecutors and investigators who worked tirelessly for 22 months to conduct the most important national security investigation in a generation: the investigation into Russian interference in the 2016 election, whether any Americans were part of those activities, and related matters. The Special Counsel team conducted itself professionally and in the highest traditions of the Justice Department.

    Really?

    The “Steele Dossier” was obvious Russian disinformation, distributed by the Clinton campaign. It was actual Russian collusion to affect the outcome of the 2016 Presidential election.

    Coudl you point us to where the “Special Counsel team professionally and in the highest traditions of the Justice Department” looked into the Clinton campaign corruption?

    Sean M Davis detailed a large number of actions of blatant dishonesty by the Mueller team in their report, such as the discussion of Cater Page that mentions that Russians were arrested and convicted for trying to use him as an anti-US spy. A discussion that makes it look like Page was a willing accomplice, when in fact he worked with the FBI to capture and convict the Russians.

    So, thank you for completely discrediting yourselves.

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