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Tags: Barack Obama | Donald Trump | Russia | Russia Probe | dershowitz | godot | holdovers

Waiting for Mueller Borders on Fiction

president trump answers mueller probe questions by the press in the oval office recently
President Donald Trump answers a reporters question about the investigation of special counsel Robert Mueller during a signing ceremony of the "Cybersecurity and Infrastructure Security Agency Act," in the Oval Office of the White House, on Friday, Nov. 16, 2018, in Washington, D.C. (Evan Vucci/AP)

By    |   Monday, 03 December 2018 02:50 PM

In Samuel Beckett’s famous absurdist drama, "Waiting for Godot," two characters spend the whole play awaiting a third who never arrives. It's never clear who Godot might be, nor what, precisely, would be achieved if he ever appeared, and, in particular, whether the truly dismal life of the two characters (who constantly contemplate suicide) would be resolved or improved.

Our nation waits in a comparable situation for Mueller.

For the entire period of the Trump presidency, U.S. Special Prosecutor Robert Mueller has scurried about, behind the scenes, apparently furiously at work.

Mueller purportedly seeks to uncover evidence of a horrific plot by the Russians to manipulate the 2016 election and seize the presidency from the deserving Hillary Clinton thereby wrongly delivering it to Donald Trump.

The president’s partisans, of course, believe that Mueller’s activities were set in motion by a nefarious plot hatched by Obama administration holdovers and Hillary Clinton campaign officials. They believe that the Obama and Clinton camps wrongfully seek to smear Mr. Trump, and conceal the fact that Mrs. Clinton lost the election due to her incompetence as a campaigner. Mrs. Clinton also lost due to many Americans' desire to reject the philosophy of the previous administration.

Unfortunately, Mueller’s team is unlikely even to have considered this.

Many Democrats and even some Republicans still believe that a look at Donald Trump’s finances and taxes will reveal that he is indebted to foreign sources (probably Russians), who bailed him out of bankruptcy and now control his every move.

In the meantime, the Trump administration continues on a course of successfully renegotiating trade agreements, repealing deleterious regulations, spurring economic and manufacturing growth, while reducing unemployment.

In terms of prosperity things have rarely been better, but the president’s critics somehow cling to the notion that he is a buffoonish clown. A puppet of miscreants.

The president’s defenders and his attackers cannot both be right, so we wait for Mueller, in the blind hope that he will reveal reality. The tragedy to come (and "Waiting for Godot" is, alas, a sad tragedy) is that Mueller’s investigations and prosecutions are unlikely to solve anything.

He will be unable to prove any collusion between the president and Russians, because the plot to steal the election was, probably, a product of the fevered imaginations of the president’s enemies.

However, it's unlikely Mueller will confirm this.

Nor will Mueller confirm that the president’s finances are inextricably intwined with those of mysterious oligarchs. Mueller will, however, hint that the president might have been involved with alleged campaign finance violations linked to the funds expended in the attempted silencing of Mr. Trump’s purported paramours.

It's likely, however, that the president’s legal team will be able to challenge or rebut any suggestions that the president was involved in illegal conduct, and they will also be in a position to demonstrate that any convictions Mueller has obtained do not reveal any misconduct on the part of Mr. Trump.

Assuming that that same legal team has steered Mr. Trump away from any perjury traps in the written testimony he has submitted to Mr. Mueller, it is, as Alan Dershowitz has suggested, unlikely that Mueller will clearly accuse the president of any crimes.

Given Mr. Mueller’s team of zealous Clinton partisans, however, it's likely that Mueller’s report will strongly suggest that persons close to the president committed crimes, and, as some were advisors to his campaign, this will be enough further to tarnish the president in the minds of his critics.

Once Mueller files his report then, we will likely be precisely where we are now, with the backers of the president still behind him; with his detractors continuing to rail against him.

Waiting for Mueller will prove as fruitless and frustrating as waiting for Godot.

There is a lesson to be learned here, whether or not there is one inherent in Beckett’s puzzling production. It's that special prosecutors, even if their status is constitutional (and there is a powerful argument that they are not), cannot solve our political problems, nor mend our divisions.

The institution of the special counsel is an example of a pernicious tendency in our polity to evade the ordinary workings of government, to seek magically to resolve unresolvable differences and tensions in our politics and culture.

We tend to want to criminalize the activities of our political enemies, and there is some reason for this, given that some politicians are indeed criminals, and our government offers an unparalleled opportunity to monetize access to the power and influence our federal leviathan.

When the smoke finally clears, however, the already wealthy Mr. Trump will be seen not to have engaged in such misconduct. It can only be hoped that other federal prosecutors will be unleashed against those who actually have committed offenses.

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). Presser was recently appointed as a Visiting Scholar in Conservative Thought and Policy at the University of Colorado's Boulder Campus for 2018-2019. To read more of his reports — Click Here Now.

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We tend to want to criminalize the activities of our political enemies. When the smoke finally clears, the already wealthy Mr. Trump will be seen not to have engaged in misconduct.
dershowitz, godot, holdovers
Monday, 03 December 2018 02:50 PM
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