Mueller, it's time to wrap this investigation up

Mueller, it's time to wrap this investigation up
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Special Counsel Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE has been the leading story in the headlines ever since his appointment on May 17, 2017. He promised the nation a swift, narrow, focused investigation into the allegations that President TrumpDonald John TrumpHannity urges Trump not to fire 'anybody' after Rosenstein report Ben Carson appears to tie allegation against Kavanaugh to socialist plot Five takeaways from Cruz, O'Rourke's fiery first debate MORE had colluded with Russia, and as we approach the one year anniversary of his appointment he has failed to deliver despite extraordinary waivers of executive privilege by the Trump administration.

It would be a terrible thing for Mueller to stain, forever, his superb reputation going into this job by his conduct of the investigation. A key problem is that Mueller has two major conflicts of interest, which suggest, at a minimum, that he is the wrong man for this job.

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First, the big legal charge he seems to be investigating is whether President Trump obstructed justice by firing former FBI director, James ComeyJames Brien ComeyTrump vows to get rid of 'stench' at DOJ, FBI House Judiciary on NY Times article: I intend to subpoena 'McCabe Memos' Hillicon Valley: NYT says Rosenstein wanted to wear wire on Trump | Twitter bug shared some private messages | Vendor put remote-access software on voting machines | Paypal cuts ties with Infowars | Google warned senators about foreign hacks MORE, a close personal friend of Mueller’s with whom Mueller worked closely both during both the second Bush and Obama administrations. Nobody should be picked to investigate the legality of the firing of a close personal friend or acquaintance.

As the investigation has unfolded, a different conflict of interest for Mueller has arisen, which is that serious questions have arisen about whether the integrity of the FBI itself was seriously compromised during the time when James Comey was the FBI director. It is obvious that Mueller, a former FBI director, is not the right person to conduct an investigation into possible impermissible conduct by the FBI.

I do not doubt Mueller’s integrity, character, or intellect: quite the opposite, in fact. I do think that he has fallen prey to the same problem that plagued Ken Starr’s investigation of former President Clinton. Year-long criminal investigations into the presidents of the United States prevent our most powerful and important public official from being able to do his job in foreign policy matters and in domestic policy matters. Such criminal investigations (prior to impeachment) hearings are quite simply unacceptable.

Deputy Attorney General Rod RosensteinRod Jay RosensteinHannity urges Trump not to fire 'anybody' after Rosenstein report Rosenstein: 'I never pursued' trying to record Trump Trump vows to get rid of 'stench' at DOJ, FBI MORE is a solid conservative who was a member of the Federalist Society Chapter at Harvard Law School in the 1980s when that was not a popular position to seek out. I firmly believe that Rosenstein means to do what is just here and nothing more. It is Rosenstein’s responsibility to tell Mueller now to make a final report to the nation, and to let the Public Integrity Section of the Criminal Division in the Justice Department follow up Mueller’s various indictments and investigations.

Justice Scalia wrote about many flaws with Special Counsels in his dissent in Morrison v. Olsen many of which are pertinent here. In addition to condemning the constitutionality of the now expired independent counsel law, Justice Scalia also made a critically important policy argument against ever appointing a Special Counsel:

“Only someone who has worked in the field of law enforcement can fully appreciate the vast power and the immense discretion that are placed in the hands of a prosecutor with respect to the objects of his investigation.”

Scalia goes on to quote from a speech delivered to U.S. attorneys by Justice Robert Jackson, when he was attorney general under President Franklin Roosevelt:

“There is a most important reason why the prosecutor should have, as nearly as possible, a detached and impartial view of all groups in his community.

“Law enforcement is not automatic. It isn't blind. One of the greatest difficulties of the position of prosecutor is that he must pick his cases, because no prosecutor can even investigate all of the cases in which he receives complaints. ... What every prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the public harm the greatest, and the proof the most certain."

“If the prosecutor is obliged to choose his case,” Jackson said, “it follows that he can choose his defendants. 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. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.”

And here is the crucial point:

“It is in this realm — in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.”

Special prosecutors are inherently a very bad idea, and a threat to our civil liberties they inevitably become like Bills of Attainder and Ex Post Facto laws — an unconstitutional effort to “get” one person.

Steven G. Calabresi was special assistant to Attorney General Edwin Meese III, 1985-87; law clerk to Justice Antonin Scalia, 1987-88; and co-author of the “The Unitary Executive: Presidential Power from Washington to Bush” (Yale University Press 2008).