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  • Robert Mueller

    Robert S. Mueller III must answer for shortcomings in his investigation. (Photo: U.S. Govt)

    Robert Mueller, a highly decorated Marine and Vietnam combat veteran, knows the meaning of orders. As special counsel of the Trump/Russia investigation, he failed to follow them.

    His orders were clear–get to the bottom of allegations that Russia interfered in the 2016 election with possible assistance from the Trump campaign.

    But the conclusions of his nearly 400-page report following a two-year investigation, suggests a failure of duty that will by judged by history as an indelible stain on his career.

    Robert S. Mueller III, as a marine during the Vietnam war. (Photo: U.S. Govt)

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    Robert Mueller’s mission was clear: Leave no stone unturned in pursuit of the truth, without fear or favor under the Constitutionally established principle that “no man is above the law.” That includes the president of the United States.

    Mueller’s final report was released today, touching off a frenzy of parsing about what it says. But what the report doesn’t say, and why, is escaping scrutiny, and that, as much as anything, goes to the heart of Mueller’s failure.

    The fact is, Robert Mueller left more than one stone unturned that materially affected the outcome of his investigation. If he needed guidance on the scope of his duties he need look no farther than Special Counsel Ken Starr’s investigation of President Bill Clinton.

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    Say what you will about the premise or conclusions of the Starr investigation, one thing is certain; no one could argue that he wasn’t thorough. Not so for Mueller.

    Chief among Mueller’s derelictions is his failure to subpoena the president to appear before a grand jury.

    Mueller’s reasons were as follows: “The special counsel believed it had the authority to subpoena President Trump — but decided against doing so because it would delay the investigation, according to the report. Prosecutors also believed they already had a substantial amount of evidence.”

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    That’s tantamount to a Marine receiving an order to take a hill and then deciding, well, I could have taken the hill; I had the resources to take the hill, but decided not to because, you know, we would have had to charge up a hill. And, that would have been difficult and take too much time.

    It’s a clear failure of duty.

    If Mueller had acted the same way as a combat leader as he did in excusing his dereliction of duty for failing to subpoena the president, he clearly would have been court marshaled for failing to follow orders.

    Mueller further justifies his action in the investigation by concluding “prosecutors also believed they already had a substantial amount of evidence.”

    The only problem is they clearly didn’t have enough evidence; otherwise, his report would have reached a conclusion regarding the President’s alleged obstruction and other crimes.

    Instead, in the most glaring failure of the investigation, the report concludes: Evidence obtained “about the about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred.”

    A substantial reason for that conclusion is the fact that Mueller failed to pursue the investigation to its fullest extent.

    Of note, nothing was contained in his original charge as special counsel that put a time limit on his investigation, or limited his ability to pursue the investigation through litigation if necessary to get to the truth.

    Mueller goes on to lay out 10 episodes that revealed that President Trump was intent on using his position to protect himself and his associates from the investigation.

    Then he dodges the question by citing the Justice Department’s view that sitting presidents cannot be indicted.

    The special counsel said it would be inappropriate to analyze the evidence while Trump is in office and busy running the country because it would be unfair to accuse him of an offense without giving him an opportunity to clear his name in court,” the report stated.

    Mueller chose to abide by that, even though in his own legal opinion the president is open to indictment for crimes in office.

    The flip side of the argument is that the president would be unable to perform his duties if he was forced to defend himself in court. But that’s precisely what vice-presidents are for.

    Trump could have temporarily stepped aside and turned over the duties of the office to Vice President Pence.

    Mueller could also have just as easily concluded that the president was an “unindicted co-conspirator,” just as President Nixon was named in the Watergate investigation.

    The Watergate grand jury identified him as an unindicted co‐conspirator for his alleged attempt to cover up the Watergate burglary, precisely the same thing Trump attempted to do on at least a dozen occasions, according to the Mueller report.

    Robert Mueller concluded that he could not charge Trump with obstruction because aides repeatedly refused to carryout his instructions to either fire the special counsel or limit the scope of his investigation.

    But Mueller overlooks the fact that “conspiracy to obstruct justice” is also a crime, according to the “Conspiracy to Obstruct Justice Act” (42 USC Section 1985.)

    What’s more there is ample precedent that Mueller could have relied on beyond Watergate.

    Bill Clinton was impeached by the House of Representatives in 1998 on obstruction of justice charges based on allegations Clinton lied about his relationship with Monica Lewinsky in a sworn deposition in a separate civil suit unrelated to his official duties.

    Former Vice-Presidential adviser I. Lewis “Scooter” Libby was convicted of obstruction of justice in March 2007 for his role in the investigation of a leak to reporters by Richard Armitage of the identity of a CIA agent, Valerie Plame.

    More to the point, the Sarbanes–Oxley Act of 2002 defines what constitutes obstruction of justice.

    “Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsified, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under Title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.”

    Under 42 USC Section 1985, conspiracy is defined as “two or more persons [who] conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully.

    An apt analogy is a man who hires a hitman to murder his wife. The fact that the thug goes to police instead, does not absolve the husband of a crime, simply because they murder did not take place, because the husband engaged in a “conspiracy” to commit murder.

    Of course, Robert Mueller found it too much trouble to subpoena Trump to appear before a grand jury, which explicitly protected the president from obstruction charges.

    Trump and others engaged in this pattern of behavior time-after-time, yet Mueller could not find it in himself to bring charges.

    The report notes, for example, that witnesses including Blackwater founder Erik Prince and President Trump’s son-in-law Jared Kushner might not have been fully forthcoming in testimony before congressional panels about contacts with Russians.

    Robert Mueller’s waffling on obstruction charges proves the adage that if you create a loophole, no matter how small, a politician will jump right through it. And, that’s exactly what Trump and his minions have done.

    Robert Mueller has given Trump the ability to declare “No conclusion, no obstruction.” The mantra has been repeated endlessly, today, by Trump’s minions and his propaganda arm Fox News.

    The special counsel was appointed to expressly remove politics from the investigation, but Mueller has done exactly the opposite. By failing to draw conclusions based on the evidence, he effectively turned the investigation into political football.

    He defers to the House of Representatives to decide questions of Trump’s complicity, but given the House is dominated by Democrats, it will be hard to argue whatever conclusions it reaches aren’t political or biased.

    The report notes that Mueller’s investigation has spun off 14 other, separate investigations that may answer some of the question the report leaves unanswered.

    But as matters now stand. the report is a job not well done.