(Para)Legally Laughable – Silly Questions

In this edition of (Para)Legally Laughable first year paralegal student Charles Crosier laughs at, and answers, a question. This is an opinion piece and does not reflect the views of The Mainstream.

An opinion written recently by Han A. Von Spakovsky, first appearing on Fox News’ website and later on The Heritage Foundation website, asks a very interesting question with its title: “Is Robert Mueller Going to Investigate George Washington, Thomas Jefferson, and Andrew Jackson, Too?”

To start on an even level Spakovsky’s article has to be boiled down to its point. He argues that the president has prosecutorial authority which he says, “… holds that government prosecutors have almost unlimited authority to decide whether or not the facts and circumstances of a particular case warrant the opening of a criminal investigation and the prosecution of any individual.” In other words, President Trump has sole authority to decide whether to conduct an investigation and further prosecution. Therefore, he claims, “while he may pay a political price, a president cannot be guilty of obstruction of justice for taking actions that are fully within his constitutional authority.”

Spakovsky is completely right. However, the reasoning seems a bit flawed and it seems to ignore two other basic facts: 1) Mueller has moved forward with plenty of indictments at this point; 2) This means people who were around and near Trump have done something “wrong.” Indictments aren’t something that just gets handed out.

The headlines surrounding the president at the moment (in this matter) are that Mr. Trump is under investigation but he is not currently a ”criminal target.” What all of this is pointing to is that Mr. Trump was involved with certain individuals. These associations are being viewed in a poor light for the president and the indictments show that the president and the president’s campaign, was absolutely spending time around the wrong people. To be perfectly clear, the indictments brought against people are an indication of wrongdoing. They are not absolute signs of guilt. Yet, these indictments reflect poorly on the president.

What is the old saying? Guilt by association. Is it fair? Rarely, but, that is exactly what has happened here. Mueller is building a case and it is obvious that something has happened. Illegal things may have happened if what is currently available to the public is any indication of the state of things. The big question truly remaining, the one that seems to divide opinion is this: “is Trump guilty?”

Right now, right here, the president is not guilty by any legal measure. In certain places around the country and in the media the president has been condemned for his actions. Regardless of that, the president should allow the special counsel to continue in the interest of democracy for two reasons: 1) the president should allow his name to be cleared naturally. He has claimed total innocence in regards to any collusion; 2) if there was any tampering with our democracy then President Trump should lead the charge against any tampering in the interest of America and of himself. Some bad press can’t be recovered from and I believe this may be one of those moments if the right actions aren’t taken.

The closest Spakovsky gets to showcase a prior case and possible defense that might help our understanding is Thomas Jefferson’s prosecution of his Vice President, Aaron Burr. Close but not quite the same thing. Richard Nixon and Watergate gives us a closer look at how the courts might rule if charges are brought against Mr. Trump. Since the courts ruled that Nixon’s executive privilege did not shield the infamous tapes, then one might reasonably conclude that the courts might rule that a sitting president can’t use his authority to protect himself. That kind of ruling would not come as a surprise to this author.

As a final point and possibly the best part of the whole article by Spakovsky, the title asks, “Is Robert Mueller Going to Investigate George Washington, Thomas Jefferson, and Andrew Jackson, Too?” and I’ll answer that here. George Washington: No. Thomas Jefferson: No. Andrew Jackson: Yes, I would hope so. Trump has done many, many things and some of those things not everyone agrees with. Yet, as a caution, I would say that one might not want to use a president who committed genocide to defend the investigation surrounding another president.