Wednesday, July 24, 2019

Congressman Ratcliffe To Former Special Prosecutor Mueller: President Trump Not Above Law, But He Damn Sure Isn't Below It

No matter what your politics are, or your personal view of President Trump or Special Prosecutor Robert Mueller (seen in the above photo), one thing should be indisputable and easily agreed on – in our system of justice one is innocent until proven guilty. 

It is the prosecutor who must prove a defendant's guilt beyond a reasonable doubt, while the defendant does not have to prove his innocence at all.   

Which is why the discussion of whether President Trump was exonerated or not exonerated by the Mueller Report makes little legal sense. Especially annoying is the fact that many of the members of Congress debating the exoneration of the president are lawyers.

But, to be honest, discussing President Trump’s non-exoneration is a way of making a political point, rather than a legal one. Today was pure political theater. 

Republican Texas Representative John Ratcliffe (seen in the in the below photo) a former U.S. Attorney and federal terrorism prosecutor, was one the congressmen who questioned Special Prosecutor Mueller today. 

And he schooled Robert Mueller, also a former U.S. Attorney before he became the director of the FBI, on the concept of innocence before proven guilty.

Below is a transcript of the exchange:            

RATCLIFFE: The special counsel did not make what you call a traditional prosecution or declination decision, the report on the bottom of page two of Volume II reads as follows, ‘The evidence we obtained about the president’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the president committed a crime, it also does not exonerate him.’ I read that correctly?


RATCLIFFE: Your report…and today you said “at all times the Special Counsel team operated under, was guided by, and followed Justice Department policies and principles. So, which DOJ policy or principle sets forth a legal standard that an investigated person is ‘not exonerated’ if their innocence from criminal conduct is not conclusively determined? 

MUELLER: Can you repeat the last part of that question?

RATCLIFFE: Yeah. Which DOJ policy or principle sets forth a legal standard that an investigated person is ‘not exonerated’ if their innocence from criminal conduct is not conclusively determined? Where does that language come from, director? Where is the DOJ policy that says that? Let me make it easier. Can you give me an example other than Donald Trump where the Justice Department determined that an investigated person was not exonerated because their innocence was not conclusively determined?

MUELLER: I cannot, but this is a unique situation.

RATCLIFFE: You can’t. Time is short, I’ve got five minutes. Let’s just leave it at you can’t find it, because I will tell you why: It doesn’t exist. In the special counsel’s job nowhere does it say that you were to conclusively determine Donald Trump’s innocence or that the special counsel should determine whether to exonerate him. It’s not in any of the documents, it’s not in your appointment order, it’s not in the special counsel regulations, it’s not the OLC opinions, it’s not the justice manual or the principles of federal prosecution.

Nowhere do those words appear together because respectfully, respectfully, director, it was not the special counsel’s job to conclusively determine Donald Trump’s innocence or exonerate him because the bedrock principle of our justice system is a presumption of innocence. It exists for everyone. Everyone is entitled to it, including sitting presidents. And because there is a presumption of innocence, prosecutors never ever need to conclusively determine it. Now director, the special counsel applied this inverted burden of proof that I can’t find, and you said it doesn’t exist anywhere in the department policies and you used it to write a report.

The very first line of your report says, as you read this morning, it authorizes the Special Counsel to provide the Attorney General a confidential report explaining the prosecution or declination decisions reached by the Special Counsel. That’s the very first words of your report, right?

MUELLER: Correct.

RATCLIFFE: Here’s the problem, Director. The Special Counsel didn’t do that. On Volume I, you did. On Volume II, with respect to potential obstruction of justice, the Special Counsel made neither a prosecution decision nor a declination decision. You made no decision. You told us this morning and, in your report, that you made no determination. So respectfully, Director, you didn’t follow the Special Counsel regulations. It clearly says write a confidential report about decisions reached. Nowhere in here does it say write a report about decisions that weren’t reached. 

You wrote 180 pages, 180 pages about decisions that weren’t reached. About potential crimes that weren’t charged or decided. And respectfully, respectfully, by doing that you managed to violate every principle and the most sacred of traditions about prosecutors not offering extra-prosecutorial analysis about potential crimes that aren’t charged. So, Americans need to know this as they listen to the Democrats and socialists on the other side of the aisle as they do dramatic readings from this report. 

Volume II of this report was not authorized under the law to be written. It was written to a legal standard that does not exist at the Justice Department and it was written in violation of every DOJ principle about extra-prosecutorial commentary. I agree with the chairman this morning when he said Donald Trump is not above the law. He’s not. But he damn sure shouldn’t be below the law, which is where Volume II of this report put him.

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