Department of Justice, Not

Mickey Friedman
May 10, 2019

According to the Department of Justice’s Office of Legal Counsel (O.L.C.) “the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.” And so, Robert Mueller, more honorable than most decided since there couldn’t be an indictment or a trial, it would be unfair to impugn the President without the chance to defend himself in court.

Ironic considering how often President Trump trashed Mr. Mueller, but Mueller is a better man. Today, lesser men run The Department of Justice, betraying their mission: “To enforce the law and defend the interests of the United States according to the law … to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans.”

Instead, defending the interests of the President, not justice. Attorney General Sessions violated U.S. law to promote Donald Trump’s draconian immigration policy, separating families and losing thousands of children. Preventing immigrants from legally entering the country to make a valid claim for amnesty. Smart enough, at least, to avoid prosecution by recusing himself from the subsequent DOJ investigation into Russian interference.

Enter Deputy Attorney General Rod Rosenstein who chose political expediency over integrity by allowing the President to use his letter about Comey’s Hillary mistakes, “the reasons expressed by the Deputy” as the excuse to fire Comey. We know the President was furious that Comey wouldn’t drop the investigation into Michael Flynn’s contact re sanctions with Russian Ambassador Kislyak, and Russian interference. Rosenstein was silent while the Trump Administration lied that Comey had no support amongst the FBI rank and file.

Most recently, Rosenstein joined new Attorney General William Barr in mischaracterizing the conclusions of the Mueller Report. Implying Mueller cleared the President and his team, knowing that DOJ guidelines prohibited Mueller from taking action. Here’s Barr’s fudge:

“After making a ‘thorough factual investigation’ into these matters, the special counsel considered whether to evaluate the conduct under department standards governing prosecution and declination decisions but ultimately determined not to make a traditional prosecutorial judgment.”

Here’s Mueller, Vol. II, Page 2: “Second, while the O.L.C. opinion concludes that a sitting president may not be prosecuted, it recognizes that a criminal investigation during the president’s term is permissible. The O.L.C. opinion also recognizes that a president does not have immunity after he leaves office … Given those considerations, the facts known to us, and the strong public interest in safeguarding the integrity of the criminal justice system, we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.”

Why preserve evidence if it’s over? More Mueller. “Vol. II, Page 8: Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the president’s conduct … if we had confidence after a thorough investigation of the facts that the president clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the president committed a crime, it also does not exonerate him.”

Mr. Rosenstein just gave a speech to the Armenian Bar Association criticizing the Obama administration and the press, then justifying his work while invoking the name and history of the brave John Adams. Adams was roundly criticized for defending British soldiers who killed five Americans in 1770 believing everyone deserved his day in court.

Rosenstein quoted Adams: ‘[f]acts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.’ Then, without a sense of irony, Rosenstein quoted Trump: “As President Trump pointed out, ‘We govern ourselves in accordance with the rule of law rather [than] … the whims of an elite few or the dictates of collective will.’”

But those up above do have a sense of irony, because the next day the Washington Post revealed that Rosenstein departed from normal policy about discussing an on-going investigation when he talked to President Trump, a subject or target, “about special counsel Robert S. Mueller III’s investigation of Russia’s interference in the 2016 election and told the president he would make sure Trump was treated fairly, people familiar with the conversation said. “I give the investigation credibility,” Rosenstein said, in the words of one administration official offering their own characterization of the call. “I can land the plane.”

I’m just guessing here but I suspect a comprehensive history of the Russia investigation and the Trump Department of Justice will not likely place Rod Rosenstein beside John Adams.

So please whenever someone talks about what the Mueller report said or didn’t say, go back to Mueller. He cares about justice. The Department of Justice, not.