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Perils of Prosecutorial Power: Two Roberts
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Consider the Trump/Russia probe — now a true criminal investigation with the summer impaneling of what likely will be a hyper-partisan grand jury — a tale of two Roberts. One, long gone, warned against abusive prosecutorial power. The other, very much alive, targets a sitting president via pressuring his subordinates.

Justice Robert H. Jackson (1892-1954) served as attorney general and then solicitor-general before FDR elevated him to associate justice of the Supreme Court (1941-1954). Robert S. Mueller III (b. 1944) served as a U.S. attorney, then as FBI director for 12 years during the George W. Bush and Obama administrations (2001-2013). In May 2017 he was appointed by deputy attorney general Rod Rosenstein — attorney general Jefferson Sessions having recused himself due to possible conflict of interest — to be special counsel, with a mandate to investigate allegations of collusion between the Trump campaign and Russia, to include “related matters” unspecified.

The two represent polar opposites in how they regard the use the immense powers given federal prosecutors. Jackson feared its abuse by prosecutors becoming like Herman Melville’s Captain Ahab. Mueller appears to increasingly resemble Ahab. In Moby Dick the sea captain, having lost his leg to a monster sperm whale, risks his ship and crew to avenge his loss. Mueller risks the stability of the republic to harpoon a lawyer’s monster prosecutorial prize: a sitting president.

In a landmark address (“The Federal Prosecutor”) delivered April 1, 1940 to the second annual conference of United States attorneys, Jackson, then the attorney general, warned his subordinates of the dangers facing prosecutors — and the nation — if they abused their powers. Jackson began by stating: “The prosecutor has more control over life, liberty, and reputation than any other person in America.… While the prosecutor at his best is one of the most beneficent forces in our society, when he acts out of malice or other base motives, he is one of the worst.”

Jackson warmed up his 1940 audience by observing that “[o]ne 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.”[i] Jackson then delivered his most celebrated warning, whose prescience endures more than three quarters of a century later:

If a prosecutor is obliged to choose his cases, 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 pick 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 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. 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 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. (Italics mine.)

Mueller, by contrast, looks to be emulating an earlier special counsel, Patrick Fitzgerald, who won a perjury conviction of “Scooter” Libby in the Valerie Plame affair, despite the lack of an underlying crime. In effect, having failed to convict Libby on the merits of the underlying crime — outing alleged secret agent Plame, who in fact was not a secret agent — he went for a perjury charge. With a compliant jury in Washington, D.C., not a friendly venue for Republicans, he carried the day. (Libby, thankfully, has since been pardoned.)

Mueller has been given a sweeping charter to investigate everything Trump or his associates have done since the fall of the western Roman Empire (476 AD, for those keeping score). NRO’s peerless Andy McCarthy explains how the “fishing expedition” charter given Mueller by deputy attorney general Rod Rosenstein violates Justice Department regulations:

The regulation, 28 CFR Sec. 600.1, states that the Justice Department may appoint a special counsel when it is “determine[d] that criminal investigation of a person or matter is warranted,” and that the Justice Department’s handling of “that investigation or prosecution of that person or matter” in the normal course “would present a conflict of interest for the Department.”

The regulation does not permit the Justice Department to appoint a special counsel in order to determine whether there is a basis for a criminal investigation. To the contrary, the basis for a criminal investigation must pre-exist the appointment. It is the criminal investigation that triggers the special counsel, not the other way around. Rosenstein, instead, appointed a special counsel and unleashed him to sniff around and see if he could come up with a crime. (Emphases in McCarthy’s text.)

Worse, CFR 600.4 provides, McCarthy notes, that the Justice Department must provide the special counsel “with a specific factual statement of the matter to be investigated.” (Emphasis mine.) Nothing in the publicly available charter given Mueller meets this standard. Instead Mueller can investigate (a) links or coordination between members of the Trump campaign and the Russian government; (b) “any matters” that have arisen or may arise from (a); and (c) “any other matters” within the scope of 28 CFR 600.4. That regulation contains the catch-alls of perjury and obstruction of justice; but it does not make an open-ended grant of power to investigate the complete affairs, business or otherwise, of la famille Trump or the campaign.

McCarthy notes that a grand jury need not indict a target; it can issue a report condemning misconduct short of criminal offenses. Such, he writes, may be the fate awaiting President Trump. Such would also lay a foundation for impeachment. He cites 18 U.S.C. sec. 3333, which covers appointed officials but, he adds, surely would be held by courts to cover elected officials:

noncriminal misconduct, malfeasance, or misfeasance in office involving organized criminal activity by an appointed public officer or employee as the basis for a recommendation of removal or disciplinary action.

To which I add my two cents, that “disciplinary action” could involve a vote of censure by the Congress.

In a recent TV appearance, ace Harvard law professor Alan Dershowitz said that Mueller’s investigation is being conducted akin to the principle enunciated by Soviet dictator Joseph Stalin and one of his most infamous secret police chiefs, Lavrenti Beria: “Show me the man and I’ll show you the crime.” Which is precisely the danger Robert H. Jackson presciently warned against in 1940. Mueller authorized a pre-dawn door-kicking raid targeting former Trump campaign adviser Paul Manafort, despite his having provided Congress with all documents requested. This is a “hardball” tactic rarely used in this kind of case. McCarthy writes:

… [S]earch warrants executed in predawn hours are generally reserved for situations in which agents are dealing with hardened or desperate criminals — subjects who might not merely destroy evidence but endanger the agents who knock on the door; subjects who might alert other conspirators to flee if searches commence when everyone is awake and alert.

It gets even worse: the Manhattan Institute estimates that of the over 300,000 laws providing for criminal liability, less than two percent — only 4,450 — were specifically enacted as statutes by Congress. The remainder is regulations adopted by agencies created by Congress.

One top civil liberties lawyer, Harvey Silverglate, estimates that the average person living in the United States commits three felonies per day. He writes that to the problem of uncounted laws Jackson warned of, since the 1970s statutes have become increasingly vague, thus depriving people of “notice” (legalese for what you know and/or should know) as to what conduct will violate a given law. Prosecutors can use “accordion-like” criminal statutes to criminalize “ordinary conduct” and thus ensnare unsuspecting citizens. He amplifies:

Even the most intelligent and informed citizen (including lawyers and judges, for that matter) cannot proceed with any reasonable assurance whether a wide range of seemingly ordinary activities might be regarded by federal prosecutors as felonies.

Silverglate adds that prosecutors pressure defendants to plead guilty, offering long prison sentences unless they get the testimony they seek — what law professor Alan Dershowitz calls asking defendants “not only to sing, but also to compose.”

Newly minted Supreme Court Justice Neil Gorsuch warned of prosecutorial peril in a 2013 address to the Federalist Society:

What happens to individual freedom and equality — and to our very conception of law itself — when the criminal code comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?

Mueller’s malicious machinations are turbocharged by undisguised hostility by the Beltway left-leaning media. An astonishing number from retired CBS newscaster Bob Schieffer shows how deeply inside a confirmation bias bubble today’s journalists live: one in five reside in only three cities! They are New York, Los Angeles and D.C. Their combined population is 12.7 million (NYC, 8.2M; LA, 3.8M; D.C. 700k), a mere four percent of total U.S. population (337M). Their combined area is 733 sq. mi. (NYC, 303; LA, 469; D.C., 61), versus total U.S. area of 3.8 million square miles, making their share only one fortieth of one percent.

In one of his most famous opinions, dissenting in Terminiello v. Chicago (1949), in which the right-wing agitator incited a riot via incendiary public rhetoric, Jackson warned: “No mob has ever protected any liberty, even its own, but if not put down it always winds up in an orgy of lawlessness which respects no liberties.”

Captain Ahab’s quest ended as a seer warned at the beginning of the Pequod’s voyage: “All save one shall fall.” The gargantuan white whale sank the ship and took Ahab down to the ocean depths. Perhaps Trump’s underlings will be sunk by Captain Mueller’s harpoon, while Trump, like Ishmael, survives. Then the president would be, at least metaphorically, clinging to the raft that would be left of his administration. Unlike Ahab, Mueller, win or lose, will survive.

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