From the beginning, Trump claimed that Mueller’s investigation into Russian interference in the 2016 elections was a witch hunt. He fired FBI Director James Comey last year and reportedly tried to fire Mueller last June, but was dissuaded by White House Counsel Don McGhan. Now, with his claims that the so-called Nunes memo vindicates him and shows that Mueller’s investigation is biased, Trump may boast that he has a legitimate basis to fire Mueller. Nevertheless, the firing process is cumbersome. Trump first would have to order Deputy Attorney General Rod Rosenstein to do the dirty work, because Rosenstein appointed Mueller under special Department of Justice regulations and is authorized to remove him only for “misconduct, dereliction of duty, incapacity, conflict of interest, or other good cause.” It is likely that given his consistent support of Mueller’s investigation, Rosenstein would refuse to follow Trump’s order, and, as with the famous Saturday Night Massacre where Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus refused to follow President Richard Nixon’s order to fire special counsel Archibald Cox, Trump would fire Rosenstein. Trump’s order would then fall to Rachel Brand, the no. 3 official at the Justice Department, who would then be asked to do Trump’s bidding, as did solicitor general Robert Bork for Nixon. If Brand refused, she probably would resign or be fired. Trump would then have to go down the pecking order at the DOJ until he found an official willing to execute his order. To be sure, a political firestorm would certainly ensue. Outcries for Trump’s impeachment would be louder than ever. But with such a weak, cowardly, and compliant gaggle of Republican representatives in Congress – representatives who have refused to enact legislation to protect Mueller and who praised the Nunes memo for unmasking the FBI’s alleged perfidy – it is plausible that Trump would emerge unimpeached, if not unscathed. The only recourse then for the nation and the rule of law would be the 2018 elections. With all the swirling reports about Trump’s fixation on getting rid of Mueller, an equally important issue that nobody appears to have discussed is what would happen to the work of the grand jury, which has been sitting for six months hearing testimony and examining documents in its investigation of possible obstruction of justice and conspiracy by Trump and others to interfere with the 2016 elections, false statements and perjury by witnesses, and a host of financial crimes. Does the removal of the Special Counsel undermine or nullify the grand jury’s investigation? Does it preclude the grand jury from voting an indictment? Does it preclude the grand jury from issuing a report? Start with the rules that govern grand jury practice. Under the federal rules of criminal procedure, a grand jury is empaneled by a judge, and discharged by the judge. The special grand jury empaneled to hear the evidence presented by special counsel Mueller and his team was empaneled last August by Chief Judge Beryl A. Howell of the U.S. District Court for the District of Columbia. She has the authority to supervise the grand jury, oversee requests for subpoenas, hear challenges to legal issues in connection with grand jury witnesses, and other matters facing the grand jury. Even before Mueller took it over, a federal grand jury in Alexandria, Virginia under Judge Howell’s supervision was hearing evidence in connection with the criminal investigation of Michael Flynn. If Mueller is removed by Trump, presumably a new special counsel would be appointed by an appropriate Justice Department official likely with instructions to terminate the investigation. Ironically, after Cox was fired, President Nixon appointed a new special prosecutor, Leon Jaworski, who continued the grand jury’s investigation and argued in the Supreme Court that tape recordings of President Nixon were not privileged and should be admitted in evidence before the grand jury. What happens if the new special prosecutor decides to end the investigation? Does the grand jury possess any power, under the supervision of Judge Howell, to continue its investigation and vote indictments? Does it have any power to issue a report? Assuming a new special prosecutor does not want the grand jury to continue its work and seeks to terminate its investigation, does the grand jury have any power to act on its own if it wants to? And does the federal court have the power to protect the grand jury’s actions, even to the point of appointing a lawyer to assist the grand jurors in drafting indictments, or a report? These questions raise fundamental constitutional issues involving separation of powers and checks and balances. The concept of a grand jury acting on its own and independent of the prosecutor – the so-called “runaway” grand jury – has rarely been discussed, because it almost never happens. Before the modern system of criminal prosecution by trained prosecutors, grand juries acted on their own to investigate crime and bring charges. Today the grand jury is viewed as an arm of the prosecutor and typically follows the prosecutor’s recommendations. As a practical matter, the prosecutor brings the cases to the grand jury, decides which witnesses to call, instructs the grand jurors on the law, and recommends what charges the grand jury should consider. But the grand jury is not a prosecutorial agency. The grand jury operates under the authority of the court, is legally independent of the prosecutor, and the integrity of its processes is protected by the courts. Indeed, the federal courts historically have exercised an inherent power to protect the fair administration of criminal justice, and especially an inherent power to supervise the work of grand juries to ensure that their functions and integrity are not undermined by government overreaching. To be sure, the overreaching usually comes from misconduct by prosecutors in impairing in various ways the fairness and impartiality of the grand jury’s work, and courts have from time to time sought to remedy these abuses by dismissing indictments. It is noteworthy that the supervisory power of the federal courts has over the years been curtailed by the Supreme Court so that its exercise happens much less frequently. Still, it is hard to imagine a greater threat to the administration of criminal justice than an attempt by the chief executive of the nation to obstruct an investigation into his own wrongdoing in colluding with an enemy to undermine an American election. It’s safe to assume that neither the special grand jury nor the supervising judge operates in a bubble. Presumably they are aware of the threat to the grand jury’s existence and its work. Given the court’s inherent power to protect the grand jury, and the grand jury’s likely willingness and desire to continue its critical work, it may happen that if the special grand jury is ordered to terminate its investigation, the grand jury, perhaps with the consent of the court, may choose to resist its demise, and continue its work. In such a situation, the court, under its inherent power to ensure that the justice system is not contaminated by governmental abuse, may appoint a special lawyer to assist the grand jury in drafting a report of its work and its findings. Trump can fire the special counsel but he can’t fire the grand jury. Professor Bennett Gershman is a Professor of Law at the Elisabeth Haub School of Law at Pace University, a former prosecutor in the Manhattan District Attorney’s Office, and a Special Assistant Attorney General in New York State’s Anti-Corruption Office.
Two lawyers representing people in connection with Robert Mueller‘s Russia investigation believe an indictment of President Donald Trump could be forthcoming. The lawyers told Politico that an obstruction of justice charge could be in Trump’s future. This would be unprecedented, as Justice Department opinions have indicated that a president cannot face criminal charges while in office. “If I were a betting man, I’d bet against the president,” one of the attorneys said, basing the assertion on his own interactions with Mueller’s team. “If he’s going to do it, I think he’ll do it in the spring,” the attorney said. “I don’t think he wants to be accused of trying to influence the election that dramatically.” The second lawyer who spoke to Politico acknowledged the legal questions involved in such a move, but thought Mueller might try to indict Trump anyway. “It’s entirely possible that Mueller may go that route on the theory that, as an open question, it should be for the courts to decide,” the attorney suggested. “Even if the indictment is dismissed, it puts maximum pressure on Congress to treat this with the independence and intellectual honesty that it will never, ever get.” A Trump indictment would surely be met with a challenge that could take it to the Supreme Court. The most recent Justice Department opinion on the issue is from 2000, when the DOJ agreed with an earlier opinion from 1973 saying that a president could not face charges while still in office. The idea was that “the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
The law is clear: Special Counsel Robert Mueller must recuse from any Comey-part of his special counsel inquiry. As the Department of Justice itself promises the world, “No DOJ employee may participate in a criminal investigation or prosecution if he has a personal or political relationship with any person or organization substantially involved in the conduct that is the subject of the investigation or prosecution, or who would be directly affected by the outcome.” A personal relationship “means a close and substantial connection of the type normally viewed as likely to induce partiality.” This requirement derives directly from section 45.2 of the Code of Federal Regulations. The law reads the requirement of recusal as mandatory: Mueller “shall” recuse from the Comey part of the inquiry if Mueller has a “personal relationship” with Comey. This is where the ethical concern arises: a partial prosecutor will favor one party over another due to their personal relationship with one of those parties. To assess the Comey-connected issues requires review of Comey’s behavior, assessment of Comey’s intent, and judgment of Comey’s credibility. According to published media reports and near unanimity of those who know both, Mueller enjoys an “unusual friendship” with Comey in their closeness. Their actions as public servants particularly “deepening a friendship forged in the highest levels of the national security apparatus.” To many Trump supporters, that sounds like a Deep State alliance forged in the fires of another more unearthly place. The public articles read more like a modern bromance, that “stretches back over a decade” of closeness and simpatico sentiments toward and for one another’s “shared” perspectives. Five separate sets of standards govern the conduct of special counsel for the Department of Justice. First, the conflict of interest laws imposed by Congress in sections 201 through 209 of Title 18 of the United States Code. Second, the executive orders of the White House, including Executive Order 12674, 12731, and 13490, all amended and updated by President Barack Obama. Third, the integrity restrictions of section 423 of Title 41 of the United States Code governing procurement policy. Fourth, the standards of conduct governing appointed officials under section 2635 of Title 5 of the Code of Federal Regulations. Fifth, and finally, the Department of Justice’s standards of conduct for Department appointees under section 3801 of Title 5 of the Code of Federal Regulations and section 45 of Title 28 of the Code of Federal Regulations. Mueller, as an attorney licensed in California (and, apparently, elsewhere), the ethical standards governing California counsel also govern Mueller’s conduct. At the outset, it is not clear that this order authorizes Mueller to conduct any inquiry into any Comey concerned issues. Deputy Attorney General Rod Rosenstein, as the then acting Attorney General for matters Attorney General Jeff Sessions recused himself from, retained special counsel Robert Swan Mueller III to “conduct the investigation” purportedly “confirmed by then-FBI Director James B. Comey” concerning “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump” and “any matters that arose or may arise directly from the investigation.” Comey’s testimony was that he felt Trump fired him for not telling the world what Comey knew and told Trump and others — that Trump was not under investigation. Comey’s only other testimony concerned post-election conduct of Mike Flynn communicating with the Russian ambassador, which the FBI already publicly cleared Flynn of wrongdoing. As such, neither would fit under the limited inquiry authorized by the special counsel order of Deputy Attorney General Rosenstein or the limited recusal of Attorney General Sessions, which shapes the limits of the special counsel authorization authority from Deputy Attorney General Rosenstein, and concerns “the campaign” and not post-election matters. Comey’s testimony, though, suggests otherwise, implying that Mueller has included any Comey-connected issues within his purview, despite the jurisdictional limitations of Mueller’s limited-by-law order authorizing his appointment, and the circumscribes terms of that order of appointment. Mueller’s unwillingness to recognize the limits of his authority raises precisely the concerns Professor Dershowitz and others have raised with the appointment of any special counsel in this matter. Independently, it gives rise to a greater concern in this context: the close personal friendship and public association between Mueller and Comey, which far exceeds any of the kind that led Attorney General Sessions to recuse from this inquiry in the first instance. Additionally, concern over Comey reached new levels after Comey’s testimony, due to Comey’s dubious choice to drama-queen the main stage. (There is a reason lawyers tell their clients to keep their mouth shut.) Separate analysis — several by liberal-leaning Democratic law scholars and lawyers — identified four different grounds to potentially criminally prosecute and bring legal actions against Comey from his own words before the committee: Perjury for saying he had never memorialized any prior Presidential conversation, when evidence from a published book strongly suggests otherwise; Perjury for saying he had never received notice of the particular scope of Sessions’ recusal, when the Department of Justice’s own emails to Comey strongly suggests otherwise; Perjury for saying he only released details of his memos after President Trump tweeted about taped conversations, when a New York Times story from the day before the tweet strongly suggests otherwise; Violating various records and employment related laws in removing and leaking FBI memos to the New York Times, memos Comey cannot seem to now locate; How can Mueller believe anyone will see his actions as impartial when it requires reviewing all matters of credibility concerning Comey, including possible criminal charge consequences for Comey, when Mueller has been identified as friends of a “unique” “deep” and “close” kind with Comey for more than “a decade”? As important, for the integrity of the legal proceedings, it is essential the public at large see Mueller’s actions as impartial. After all, that is the entire point of a special counsel appointment: a prosecutor above reproach, by action and public perception. Does anyone think Mueller’s actions henceforth will be seen that way? Especially, after Comey conceded publicly he orchestrated the leaks to get a special counsel appointed, and that special counsel turned out to be his deep, close, personal friend, Mueller? Trump critics, ask yourself this question: Would you be ok with Trump’s counsel Michael Cohen as special counsel? How about any other long-time Trump friend and ally? Trump-critics cannot demand Sessions’ recusal on the one hand, and then ignore the more glaring conflict at the center of Mueller’s role in this now Comey-dominated matter. The best legal rule of all time is a simple one: “what is good for the goose is good for the gander.” So it should be here. Session recused; so must Mueller. Robert Barnes is a California-based trial attorney whose practice focuses on Constitutional, criminal and civil rights law



Mueller a Plant by illary,Obma and the deep state
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 Mueller “shall” recuse from the Comey part of the inquiry
Clinton State Department Crimes
URANIUM ! Clinton Mueller
James Comey  wire tap on Trump
Dossier criminal charges
Clinton Pedophile Ring
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