Prof Hadar Aviram’s close reading of Mueller, 2

3 comments on this post.

1. zen:

   April 21st, 2019 at 4:44 am

   Hi Charles
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   “Despite Mueller’s opinion that a sitting president cannot be indicted, they conducted the factual investigation “when memories were fresh and documentary materials were available.” The report EXPLICITLY states that “a president does not have immunity when he leaves office.”
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   I think Mueller is correct here on both counts. Indicting a sitting POTUS raises immediate constitutional questions related to separation of powers, Federal supremacy (were a state court to attempt it) and due process (finding an untainted jury pool for starters)as well as the practical concern of a Chief executive being responsible for the Executive Branch wile undergoing a trial or in a jail cell. Nor does the Constitution render any immunity to former presidents for illegal actions undertaken while in office, only immunity from claims covered by sovereign immunity or criminal complaints that may be shielded by questions by the constitutionality of the law under which the POTUS might be indicted (say a law attempting to restrain conduct as Commander-in-Chief). Any crimes otherwise committed by the President would be fair game for DOJ once he leaves office.
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   “Most importantly: they did not find that the president did NOT obstruct justice and say so explicitly. The money shot is enclosed”
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   Aside from the fact that Mueller or any other Special Counsel does not “clear” figures, I find this section suspect for the reason that while the POTUS may not be indicted any agents acting on his behalf in obstruction could be and if the evidence was sufficient, it should have been brought to a grand jury as the Special Counsel did with Paul Manafort. Given the career history of Mueller’s top prosecutor to overcharge and then be reversed by appellate courts, it is more likely that in many of these instances there wasn’t evidence to make even a simple conspiracy charge stick and the report is attempting to present forward theories or speculation as evidence of obstruction. What would be much more convincing to the public (or rather the part of the public that didn’t wish to impeach him even before Trump took office) or the Senate would be indictments of secondary figures for obstruction who acted illegally on the President’s instructions. Guilty pleas or cooperating testimony on this point seems to be conspicuously lacking unless the remaining cases referred by the Office of Special Counsel proceed in this vein.

2. Charles Cameron:

   April 23rd, 2019 at 4:49 pm

   Well, Zen, I had a long response wrought with difficulty here, and it got lost when the system decided I wasn’t logged in.
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   In short, the last few years have taught me something of the deep reverence with which citizens of the United States hold the history of American governance, allowing me to see the whole as an authentic religious expression — something I really hadn’t grasped when I first came here.
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   There was stuff in there about John Locke, under whose grim portrait I sat for a few years when I attended dinner in college in my misspent youth, but I no longer recall quite what the relevance was.
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   In Any case, watching attorneys discussing the finer points of Mueller, his indictments, his referrals to other jurisdictions and his choices not to indict, I’ve come to feel a far greatest respect and affection for this great country, which has been my generous and kindly host for so many years.
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   And I really do need to acquaint myself with the Federalist Papers.

3. zen:

   April 25th, 2019 at 2:58 am

   Hi Charles
   .
   Being a country that could only have been born the way it was during the Enlightenment, Americans are (increasingly, were) tied to each other by a set of ideals which we have always had difficulty living up to in reality but nevertheless, saw as our hallowed values. A system that worked best when politicians were guided by restraint and respect.
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   The Federalist Papers and Madison’s notes on the Constitutional Convention alongside John Adams book on the constitutions of the states and the Antifederalist Papers are the best windows onto how the framers and the founders viewed the new Constitution and what it meant at the time. That in turn hearkened back to the British experience, especially the Whig version of the Glorious Revolution, distilled through roughly two centuries of colonial life on the fringes of European civilization.
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   Also interesting are the debates at the state conventions to ratify the Constitution which showed how more ordinary Americans saw it – locally important to be sure, but more often relatively poor yeomen farmers than wealthy merchants, lawyers or planter grandees