(03-27-2019 01:21 PM)Owl 69/70/75 Wrote:  

(03-27-2019 01:05 PM)RiceLad15 Wrote:  

(03-27-2019 12:57 PM)Owl 69/70/75 Wrote:  

(03-27-2019 09:20 AM)tanqtonic Wrote:  

(03-26-2019 08:12 PM)ausowl Wrote:  Regarding the Barr letter to Congress and obstruction of justice, a most interesting phrase:
"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."
Seems within the scope of his mandate to have done so.

No doubt. This was, in fact, what he was 'hired' to do.
He made several 'non-traditional' prosecutorial judgments leading up the final act, mind you.
I read it as implying that Mueller really wishes to have brought charges, but both factual issues (i.e. no underlying corrupt intent) and Constitutional issues (whether a President can be dinged for exercising a discretionary and lawful power) leave him in the weakest position possible to consider that.
Which, when you note the zealousness that he extended indictments to others, and the liberal extent to the definition of some of those charges (i.e. the 'sandbag' of Flynn, the elevation of a 'he didnt sign a piece of paper, and the submission of the paper with a 3k fine is the punishment'-level offense to various felony indictments ('conspiracy against the United States', numerous money laundering, and a bevy of process crimes), indictments of corporations that werent even in existence at the alleged time), and the liberal manner in the prosecution of some of those matters (the refusal to move forward when a corporation had the temerity to actually answer and request expedited proceedings, refusal to accept the counsel of record as being able to respond in court), then yes, I am both surprised at the punt, yet at the same time not surprised at it.

I don't know whether Mueller truly "wishes have brought charges," but it is pretty clear that he found neither factual nor statuary basis for so doing. As you note, given his willingness to go full bore on prosecuting things unrelated to the nominal scope of his investigation, one can scarcely believe he would have punted anything within that scope.
And Boston Owl's gross mischaracterization of Barr's 2018 has set a forum record for disingenuity. .

Not sure you can suggest that Mueller's willingness for turning over potential crimes unrelated to his scope to other prosecutors is indicative of why he chose to sit on the fence regarding OOJ. Perhaps he found enough evidence for OOJ if Trump hadn't been POTUS (and, as Barr outlined, able to make hiring and firing decisions without threat of OOJ charges), but not enough, or no evidence, that Trump had conducted "bad acts" (as I think Barr put it).
My guess is he explains clearly why he sat on the fence in his report - so I'm looking forward to reading that.
On a side note, what should Mueller have done about potentially other crimes uncovered during the investigation? Should Mueller have not gone "full bore" on prosecuting other crimes uncovered during the investigation?

First point is that any exemption from prosecution which might be available to the president is available only to him. Assuming that any effort to obstruct justice was almost certainly aided and abetted by others, Mueller could clearly have charged any such others. He did not.

And yes, if Trump had not been president it would have been OOJ for him to have fired certain people, because only the president has the power to fire them. I think OOJ has been widely mischaracterized and misunderstood. You should probably go read the statute.

It would seem that a president could be guilty of OOJ by executing constitutionally authorized powers if and only if those powers had been executed in a manner and for the purpose of covering up a crime. That was how they got Nixon for OOJ, because he was covering up an underlying crime. Of course in Nixon's case we never got to the potential constitutional issues that would have been involved in determining whether his acts were in fact OOJ. In this case, we don't have the underlying crime. If it could be proved that Trump fired Comey to terminate the investigation of an actual crime, and if that crime was subsequently determined to have happened, then you might be able to get OOJ against Trump. But neither of those conditions appears to exist at this point.

I am not saying that Mueller should not have prosecuted other crimes that came to light. What I am saying (and I think Tanqtonic too) is that vigorous prosecution of a number of those crimes, coupled with no prosecution for the alleged reasons for the investigation, suggests pretty strongly that those alleged reasons did not produce any evidence of crimes. I do have one question on behalf of Tanq and myself: Do you think we should be able to claim the time spent reading your posts as continuing legal education for the annual renewal of our law licenses?

Doesn't hurt to try. I'm certainly not going to stop contributing, commenting, and asking questions.

Maybe I should start asking some engineering questions so I can get some PDHs...