The Special Prosecutor Did Not Exonerate the President

July 30, 2019

In the hearings on the Mueller Report, some of the President’s supporters tried to describe “innocent until proven guilty” as meaning that the president is innocent of any crime and that the special prosecutor made that finding.

“Innocent until proven guilty” is a slogan with important purposes – we must not punish people who haven’t been found guilty. The presumption of innocence bars any form of punishment before a guilty verdict. We have to make sure that we don’t catch and punish the wrong people. But there is no negative implication here. “Innocent until proven guilty” doesn’t mean that someone who hasn’t been proven guilty is therefore actually and certifiably innocent. Even people who are held not guilty after criminal trials are sometimes found responsible in civil cases, where the penalty is money, not time in jail. “Innocent until proven guilty” is a presumption, not a conclusion about a person’s actual behavior.

In some cases, prosecutors do conclude that a defendant was innocent, but their judgment is not binding on anyone if something else turns up and changes the impact of the evidence.

In other cases, prosecutors conclude that they can’t convince a jury that a defendant is guilty beyond a reasonable doubt, sometimes called a moral certainty. If not, they can put the case aside, hoping or trying to get more evidence. They may still believe the defendant probably committed a crime, even though they understand there is still a reasonable doubt. They have evidence that points toward guilt, but it isn’t strong enough to convince a jury to imprison someone.

Or, and this seems to have been the case with Trump, they believe they might have sufficient information to convict, but they don’t have the authority to prosecute. The rule in the Justice Department against indicting a sitting president barred Mueller from proceeding.

But none of those possibilities imply a finding of innocence as a fact.

Special Counsel Robert Mueller tried to make it clear. There is no finding of innocence in the Report. Instead, the Report described evidence that points toward obstruction of justice, and concluded:

“[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”

It’s not clear who first said, “I must follow them; I am their leader.” That is clearly Nancy Pelosi’s position. To get too far out ahead of the public is dangerous. It could close minds rather than open them, increasing the danger for our country. Lawyers like myself, need to be very conscious of whether and when a jury will be receptive to a charge even though we have evidence. My own view is that Mr. Trump has committed impeachable offenses. But I also agree that the moment to pursue impeachment has not arrived because too much of the public and too many of their Senators are not yet ready to hear the charges, much less follow where the evidence leads. I’m hopeful that the ongoing hearings will help to prepare the public and the Senate. But it isn’t patriotic to go ahead blindly.

What’s Nancy up to?

January 14, 2019

If you or I were in a negotiation, we wouldn’t start with something that looked like the other side’s position – the bill that passed the Republican-controlled Senate, a bill that the man in the White House once said he’d sign. We’d load the proposal with other stuff we wanted and let the other side try to bargain us down with concessions of their own. Is Nancy nuts? I wouldn’t bet on it.

Bargaining in public is a very different game. This negotiation isn’t about horse-trading; it’s about bringing the public along, not just liberal Democrats like me – there aren’t enough of us to win elections by ourselves, and the power is in the prediction of future elections – that’s what pushes both sides around. So, she took a very conciliatory position, a Republican position, a position both houses of Congress had supported, and said, in effect: Here’s a reasonable position, Mr. President; why don’t you be reasonable too?

Of course, the big game down the road is impeachment. That will take a good deal of Republican support. The more unreasonable Nancy can make Donald look, the quicker he becomes a powerless lame duck. Then it will be time to talk about what I want.

The Constitution allows the House to stop Donald from appointing any more partisans to the federal judiciary. The Republicans have understood for years that judges are central to getting what they want and the Supreme Court has been giving it to them:

  • The Republican judiciary blessed gerrymandering and Republican efforts to keep Democrats away from the voting booths, decisions that took power out of the hands of Americans and undercut self-government across the board
  • The Republican judiciary turned the clock back on unions, women’s rights to control their own bodies, and the right of people of color not to be killed by people claiming to be terrified by the backs of African-Americans who might have turned around
  • The Republican judiciary stopped the count and sent Al Gore, the Democratic candidate for president, back into private life, choosing instead to elect George Bush, and ultimately tearing both the American economy and the Middle East apart – decisions that did a great deal of damage to huge numbers of Americans.
  • The Republican judiciary penalizes people, whites as well as Blacks, for being poor
  • America needs and deserves a fair, not a partisan judiciary making decisions by whose side it helps or whose party line it follows

Democrats could simply refuse to appropriate funds for open judicial seats. The number of seats on all federal courts are just statutory and can be changed so long as the positions and salaries of sitting judges are not diminished. Seats on the Supreme Court have varied from five to ten; there’s nothing sacred about nine. Seats on the lower courts have varied even more. Can’t stand allowing Barack Obama to nominate the centrist Merrick Garland? Democrats need not give Donald the power to fill open positions with partisans whose main goal is to keep him and other Republicans in power.

But leadership isn’t just about making good decisions; it’s about bringing the people along. A leader must have the humility to understand that they can’t produce shifts by snapping fingers. That’s one of the attributes for which I have always admired Franklin Roosevelt. I’m rooting for Nancy.

— This commentary was broadcast on WAMC Northeast Report, January 7, 2018.


November 19, 2018

Republicans have been wagging their tongues and shaking their heads about Nancy Pelosi. Why? The obvious reason is that she has been so successful. She got significant legislation through, including the Affordable Care Act, which we’re all calling Obamacare – Republicans called it Obamacare when they thought it would fail and Democrats are happy to call it Obamacare now that it’s clear that it’s been very effective.

Now there are a group of Democrats shaking their heads and wagging their tongues about Pelosi. Why? Because the Republicans have managed to make so many disparaging remarks so often that it seemed like Pelosi must be bad – so bad the Democrats had to start inventing reasons to get rid of her. Boy are those Democrats smart – they can’t tell their friends from their enemies. Look guys, the Republicans are not your friends. The more they complain about Pelosi the clearer it is that she is a Democratic jewel.

This isn’t about age. It isn’t about familiarity. It’s about an excellent political mind and the will and willpower to make things work. Some Democrats were upset because she insisted that people zero in on the most effective campaign issues, particularly Obamacare, Medicare and jobs. And the House Democrats won and won big. In fact, their victory is still growing. But then there are the Democrats who complain that she wasn’t radical enough. So, I don’t get it: wasn’t she too radical or too conservative? She took the Republicans bug-a-boo and shoved it up their whatevers while rolling over the used to be Grand Old Party – they sure aren’t grand any more, thanks in part to Nancy Pelosi. Apparently, some Democrats don’t like to win, especially to win big. Embarrassing. We should be more modest and maybe just hold the House by a seat or two so the Republicans can demand nonpartisanship, like they kept demanding Obama be above partisanship while refusing to work with him no matter what. Oh God, we’ve enemies enough; save us from our friends.

Oh, did I mention that Pelosi is a woman? A powerful woman? That is a pretty obvious Republican problem – they’ve made it pretty clear by their language and their actions that their women are supposed to smile meekly and do what the guys want. It would ruin a guy’s ego to be told by a mere woman what to do. But that’s not what the Democrats are about – unless they’re hypocrites! We should be shouting with pride about Pelosi. No need to talk about her gender – everybody knows anyway. But she’s smart. She gets results. That is a credit to her; not a problem.

Oh, she’s not a young woman and the pretty smile she once had is now cross-crossed by lines. As our friend Peggy Lynn sings in a wonderful song, “I’ve earned these lines.” At her age so has Nancy Pelosi. And it’s pretty obvious that she hasn’t lost any of her so-called “marbles.” That’s what really bothers the Republicans. And that’s the same reason we shouldn’t listen to their objections, not for a minute.

— A version of this commentary was broadcast on WAMC Northeast Report, November 20, 2018.



%d bloggers like this: