Release of Mueller Report Should End the Second-Guessing About Criminality

Robert Mueller. Photo: White House/Pete Souza

The anti-climactic public release of the Mueller Report after two years, with some redactions and the AG Barr press conference, teases out answers to some queries and churns fresh unsettled ones. For example, what’s next and where?

Competing interpretations aside, the yield across the spectrum appears to be a mixture of anxious disappointment, severe angst and deep unease at some of the sordid revelations. The direct and in-between-the-lines narrative reflects a psycho-drama worthy of a Grade B movie, were the stakes not about the operation of the Oval Office and the governance of the nation. The nation seems trapped in its own place in history and time, spinning as it were in a cyclotron with every “breaking news” twitter feed.

Back in 1987, I uttered a “step back” phrase, figuratively, to a lawyer arguing a case at the Court of Appeals. He took me literally and threw himself into reverse by backing away from the lectern while still facing the court. Then-Chief Judge Wachtler leaned forward, summoning him back with this quip—“pay no attention to Judge Bellacosa, as you still have reserved argument time.” The lighthearted anecdote is recalled to suggest the peril of anyone reading yet another commentary on this un-ending national saga.

Some years ago, Judge Wachtler uttered the renowned bon mot that prosecutors can indict a ham sandwich if they so choose. In 1940, the then-U.S. Attorney General Robert Jackson more seriously instructed the nation’s prosecutors on the weighty responsibility of prosecutorial decision-making and accountability—the serious consequences of any criminal prosecution that sets in motion the grinding apparatus of the wheels in the machine of official accusations against individuals. These temporal guideposts set my table for stepping back briefly to examine the crossroads that the Mueller Report has led the nation to and where its roaring wake will wash up next.

As a context, Founding President George Washington warned, as he was leaving the public landscape of the young nation, against partisan political camps evolving into ambitious “parties," His immediate successors, and virtually all politicians since, ignored the warning. Dirty tricks and ad hominem politics became common almost immediately with Adams and Jefferson, and remain the historical reality, worsened and coarsened due to modern modes of instant communication that fuel and inflame.

The culture has even descended into a zero-sum game of intense dislike and distrust of adversaries. A more genteel attitude of a bygone era content to defeat opponents at the polls has fallen by the wayside. Gone too is the efficacious effort to cooperate, and even socialize over a drink or meal.

Critically, the combatants have also jumped the shark for an unsettling ride on the back of the sedate judicial process. That is what makes the more recent mosh pits so different and so ugly compared to the robust challenges of yesteryears. The ace held in the back-pocket is like a dry powder box, at the ready to be aimed at a courthouse to try to undo a losing ballot box result or plead for an assortment of remedies from the bench box. This new stratagem has become an ordinary course of business, with little regard for the side-effects on the political process from “litigazation” and its twin demon—criminalization.

That shift is not healthy for the democratic operation of government and surely was not intended by the founders, especially the nation’s premier president. DeTocqueville’s surprised observation a few decades later about the tendency for all disputes in the American democratic experiment to end up being litigated in the courts surely could not have imagined that the democratic process itself would end up likewise. Dragging the separate branch neutral magistrate role into vast political brouhahas would have shocked him and disturbed President Washington even more than his wise prophecy concerning the formation of political parties.

The justice system and the criminal end of it do not well serve the nation when they are herniated by this tangled abuse of process. The high-pitched debate over criminal charges or not, arising out of and during the 2016 election cycle, has now produced embarrassing and even scary revelations, but in the end, the unseemly saga should not be examined and resolved under the ham sandwich lens.

Investigations and indictments are about real people, their freedom and reputations, no matter how high or low their status in society and government. The stamp of criminality should, therefore, be resolved formally under respected and tested norms of process informed by prudential judgment of trusted officials. The well-being of the nation itself deserves and requires no less—and individuals deserve the Robert Jackson gold standard of decency and regularity, not curb stone hyperbole, fueled by media or mob-like shouting.

So, a “step back” is in order. If Mr. Mueller and the Justice Department could not together or respectively conclude, after the massive undertaking and deliberation, that a potentially indictable criminal case could not be fairly and responsibly proven on the hugely acquired evidence beyond a reasonable doubt, that should be it in that arena.

Continuing speculation and second-guessing about indictments or criminal conduct as such are unhelpful. That other individuals among the public, government, media or editorialists think otherwise and that the ham sandwich approach should drive the process serves no good civic purpose.

An important caveat is that these observations have nothing to do with, nor do they imply, any foreclosure of the full thrust of Congressional powers to investigate within its range of authority, nor of its discrete impeachment authority. If those invested with that unique authority within the constitutional structure choose to take those paths, then those processes must be allowed to play themselves out in the proper forums, and without whatever fallout they bring to the ultimate forum—the court of public opinion at the polls.

The nation’s audiences deserve to know, however, that these discrete and awesome political pathways are not about law and legitimate legal process in the judicial sense or criminal realms. They are about the exercise of raw political power by the numbers of counting votes in Congress and then at the polls—ask House-impeached Presidents Andrew Johnson and Bill Clinton who were both acquitted, not “exonerated,” by respective Senates. Those extraordinary powers, however, must be exercised and resolved in the Capitol chambers, not judicial ones, and especially not in continuing media/cable debates or in focus groups.

Joseph Bellacosa was an associate judge on the Court of Appeals.