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The Robert Mueller standard must be overthrown — for the sake of democracy

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Special counsel Robert Mueller’s report is a meticulous and compelling document recounting President Donald Trump’s actions and the informational warfare carried out during the 2016 election by the Russian government. But it contains a serious flaw — and it sents a terrible precedent for the country.

We’re now confronted with that flaw once again as the Justice Department has revealed that the case of the 2016 criminal hush money payments meant to benefit Trump’s campaign has closed. Michael Cohen has already been imprisoned for his part in the scheme, but his testimony, public evidence, and common sense all indicate that Trump, too, was just as culpable.

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But because of Justice Department policy, a sitting president cannot be indicted.

According to USA Today, this policy ‘factored into’ the conclusion of the case. And on Friday, House Oversight Committee Chair Elijah Cummings (D-MD) announced that he is trying to find out whether the Justice Department’s policy “played any role” in the end of the investigation.

“If prosecutors identified evidence of criminal conduct by Donald Trump while serving as President—and did not bring charges as they would have for any other individual—this would be the second time the President has not been held accountable for his actions due to his position,” Cummings said. “The Office of the President should not be used as a shield for criminal conduct.”

However, if the Justice Department follows Mueller’s precedent in this case, it won’t acknowledge whether it would have indicted Trump based on the evidence it had were he not president. That was the stunning and unexpected step Mueller took in the report: He said he would lay out the evidence and his legal analysis of Trump’s acts but not reach a conclusion about whether an indictment would be appropriate. Mueller simply refused to state whether Trump should have been indicted for the conduct the office uncovered, even though it was obvious to hundreds of federal prosecutors that the case was more than strong enough. Mueller based his decision on the damage such an allegation would do to the presidency and a misguided notion of being “fair” to Trump.

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This was a bad move in the Russia investigation. But this principle, applied to other cases in which there is less accountability and no expectation of a public report, is even more dangerous.

And in some ways, the question at the heart of the 2016 hush-money scheme cuts to the core of American democracy even more so than the obstruction of justice allegations underlying the Mueller report.

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Because while Trump’s alleged obstruction of justice as laid out in the Mueller report should be taken very seriously — and is, in my estimation, obviously impeachable conduct — there’s a coherent argument to be made that a president’s actions in office should be given a significant amount of deference.

But the question in the hush-money case is whether Trump broke campaign finance laws in order to become president. If he’s guilty, and if the Mueller standard holds, it would mean the president seized control of the executive branch through an illegal act, a crime he then couldn’t be charged with or accused of because of the office.

This blatantly undermines democracy and the rule of law. And it’s untenable. It means that going into the next election, Trump would have a strong incentive to break the law to win again — thereby further protecting himself from prosecution.

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It’s true that impeachment remains a remedy for Trump’s crimes, but it is an exceptionally heavy-lift — especially given extreme levels of modern partisanship. If the qualified investigators who examined the case are barred from even saying that the evidence leads them to believe the president committed a crime, then it will likely be impossible to convince the required members of the president’s party to turn against him for a successful impeachment.

Fortunately, Mueller’s decision was decisive only for his version of the special counsel’s office, and no one else is bound by his conclusions. Any other federal prosecutor’s office should, in theory, be able to announce that they would like to bring charges against Trump but are refraining to do so because of the DOJ policy.

Of course, Attorney General Bill Barr might stop them, and fear of retaliation might prevent any prosecutor who cares about his or her career from taking this bold step. They also might defer to Mueller’s judgment call out of an abundance of caution.

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It’s good that Cummings wants to know more about the hush money case, and hopefully, the public can be made aware of the conclusions the prosecutors came to. But if we remain in the dark about these crucial questions, and if the Mueller standard becomes entrenched as a governing norm, the American experiment will rest on much shakier ground.

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Enjoy this piece?

… then let us make a small request. Like you, we here at Raw Story believe in the power of progressive journalism — and we’re investing in investigative reporting as other publications give it the ax. Raw Story readers power David Cay Johnston’s DCReport, which we've expanded to keep watch in Washington. We’ve exposed billionaire tax evasion and uncovered White House efforts to poison our water. We’ve revealed financial scams that prey on veterans, and efforts to harm workers exploited by abusive bosses. We’ve launched a weekly podcast, “We’ve Got Issues,” focused on issues, not tweets. Unlike other news sites, we’ve decided to make our original content free. But we need your support to do what we do.

Raw Story is independent. You won’t find mainstream media bias here. We’re not part of a conglomerate, or a project of venture capital bros. From unflinching coverage of racism, to revealing efforts to erode our rights, Raw Story will continue to expose hypocrisy and harm. Unhinged from corporate overlords, we fight to ensure no one is forgotten.

We need your support to keep producing quality journalism and deepen our investigative reporting. Every reader contribution, whatever the amount, makes a tremendous difference. Invest with us in the future. Make a one-time contribution to Raw Story Investigates, or click here to become a subscriber. Thank you.



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2020 Election

Trump furious with Steve King for crippling his re-election chances in Iowa: CNN’s April Ryan

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Sitting in with CNN's Victor Blackwell on Sunday morning, contributor April Ryan relayed that Rep. Steve King (R-IA) is in big trouble not only with his party over his latest comments about rape and incest, but that Donald Trump is aggravated with him too because he may impact the president's chances in Iowa in the 2020 election.

With King reeling from the fallout from his own comments made during an appearance earlier in the week, Ryan said that his days may be numbered because senior Republicans want him gone too.

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Psychoanalyst Justin Frank on why Trump ‘hates reality’ and must be ‘quarantined’

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Donald Trump is a living, breathing national emergency. Our president has repeatedly encouraged violence against his perceived enemies — and at least some of his supporters are following his lead. These are not isolated incidents. There are dozens of court cases where Donald Trump has been cited for "inspiring" acts of violence and other crimes. There are also the most odious examples such as the recent white supremacist terror attack in El Paso in which the alleged mass murderer wrote an online "manifesto" that almost verbatim channeled Trump's threatening rhetoric towards nonwhite people.

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Like a fox — how a TV news channel is tearing America apart

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A little over 20 years ago, Rupert Murdoch and Roger Ailes concocted a profitable way to tap into the white supremacist ideology still bubbling below America’s surface.

They started a “news” network that, instead of providing actual news, gave white, conservative viewers the news they wanted to hear: that they, their families, and their values were under attack by minorities, gays, women, liberals, socialists, Muslims, atheists, the media, etc. — and therefore their biases were justified.

It’s been a lucrative strategy. However, just making a buck wasn’t enough for them. They also wanted to shape the fortunes of the country they were dividing. Here, too, they had tremendous success.

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