Robert Mueller has defeated Trump — and he didn’t even have to indict him.
Editor’s Note: Samuel Warde is the editor-in-chief of Liberals Unite (recently re-branded as The Art of Living) as well as a contributor to Mindy Fischer, Writer. The opinions expressed in this commentary are his own. You can view a list of his articles here.
“He who is prudent and lies in wait for an enemy who is not, will be victorious.” — Sun Tzu, “The Art of War”
America – indeed the entire world – is on pins and needles as it impatiently awaits the anticipated conclusion of Special Counsel Robert Mueller’s Russia investigation.
Will Congress and the American people get to see his report or will Trump’s new Attorney General bury it? Will there be an impeachment hearing? Will Trump be indicted or will the Department of Justice defer to an antiquated departmental policy dating back to the Nixon administration? Will Trump attempt to pardon his way out of being held accountable? Will he attempt to pardon his namesake, Donald Jr.,? Daughter Ivanka? Jared Kushner? Former campaign chairman Paul Manafort? The list of questions goes on and on….
However, truth be told – Mueller has already defeated Trump. He has been doing so all along.
Mueller has been burying evidence in the federal courts.
One of Mueller’s strategies from the start has been to file hundreds of pages of evidence with the federal court system. Were Trump savvy about the Constitution, he would know that there are three separate and distinct branches of government: the executive, legislative, and judicial branches. His authority only reaches as far as the executive branch of government. Once files are under the jurisdiction of the federal courts the release of documents is up to federal judges overseeing those cases. Making matters worse for Trump, he lacks the authority to fire federal judges like he did with former Attorney General Jeff Sessions and has repeatedly threatened to do to Mueller.
A perfect example of this strategy in action last Friday’s sentencing memorandum in U.S. District Court in Washington, D.C. regarding Manafort’s guilty plea there to two charges of conspiracy. The memorandum itself was only 25-pages, however, the full file with attachments came in at a “massive 800-pages” as per reports by CNBC and others.
This massive document dump was on top of documents already filed by the Special Counsel investigation, headed by Mueller. The Washington Post published an analysis of the Mueller probe so far, followed by the following summation:
That’s about 290 pages of documents detailing alleged and admitted illegal behavior, including, in most cases, broad context for the actions. (Many of those pages, particularly as they relate to Manafort, are carried over between documents.) It’s dozens of criminal charges, some rolled into plea agreements. It’s dozens of people, including a number of named Russian actors. It’s a handful of people who have served time in prison, been sentenced or who will be sentenced shortly.
That’s over one thousand pages of documents combining The Washington Post analysis with Friday’s Manafort memo.
Mueller has been coordinating with state-level prosecutors.
In a separate article, The Washington Post reported last Friday that “Early in his investigation, Mueller was reportedly sharing information he had gathered with the then-attorney general of New York, Eric Schneiderman.”
Moreover, current New York Attorney General-elect Letitia James declared war on Trump during her first post-election interview late last year. NBC News reported that “James says she plans to launch sweeping investigations into President Donald Trump, his family and ‘anyone’ in his circle who may have violated the law once she settles into her new job next month.”
This strategy provides a pardon-proof way of insuring that Trump and his various co-conspirators can be held accountable for their crimes.
What about double jeopardy?
There has been considerable debate regarding double-jeopardy in the event Trump attempts to pardon himself, family members, or others. The U.S. Supreme is deciding a case later this year (Gamble v. United States) that could make it impossible for states to prosecute individuals for crimes covered by a presidential pardon.
Slate reported in October 2018,
Gamble v. United States has fueled speculation that Republicans are pushing for a favorable outcome in order to free Trump to issue pardons of his associates without fear that they will face consequences from state prosecutors. While the case on the question of double jeopardy is an important one, there is no reason to worry that Gamble will jeopardize the Mueller probe… In reality, though, the Mueller investigation seems to have made itself safe on that front.
However, Mueller has already outmaneuvered Trump were Gamble to swing in favor of double jeopardy protections.
Mueller has already left the door open for state charges by not charging defendants with every possible crime. As Slate reported, when Manafort pleaded guilty last year, “Mueller seemed to leave the door open on many charges by state prosecutors.”
Bloomberg came to the same conclusion, reporting that New York State prosecutors plan to charge Manafort with state crimes containing different elements than the federal charges against him – therefore invalidating any claim to double jeopardy protections in the event of a pardon.
The Washington Post put the final nail in the coffin, reporting that:
Of course, double-jeopardy issues only arise for state and federal crimes arising out the same set of facts — so states are always free to prosecute crimes that do not necessarily overlap with federal cases. Bloomberg News reported Friday morning that New York prosecutors have put together a case they could file against Manafort if Trump pardons him in a way that would avoid the double-jeopardy problems. The New York investigation predates the Mueller probe and includes consideration of tax evasion and improper accounting records, the Bloomberg report says.