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Process Crimes and the Mueller Investigation

In the Washington Post, former Assistant US Attorney Randall Eliason argues that “Trump supporters” are wrong when they dismiss the large number of Robert Mueller’s prosecutions as mere “process crimes.” Eliason claims that perjury, 1001 violations for lying to a government official, and other process crimes are serious matters. When the subject of an investigation lies, they interfere with an important investigation that should be protected. Prosecuting those process crimes therefore serves an important purpose.

While Eliason frames his column mainly in partisan terms, with Republicans dismissing prosecutions for process crimes, this is unfortunate. The problem is more general.  President Bill Clinton was impeached for a process crime and some of his defenders decried this fact. To avoid excessive partisanship, Eliason should have gone out of his way to note that this occurs with both parties. But it is hardly news that partisanship lives at the Washington Post.

I agree with Eliason that process crimes are serious matters. And to the extent that the Mueller has successfully prosecuted such crimes, that reflects badly on the persons who committed these crimes. But Eliason ignores the strongest reason why people seem to denigrate mere process crimes.

Many commentators view the prosecutions by the Mueller probe as evidence of wrongdoing by the Trump campaign or his administration. But this will not necessarily be the case if the process crimes occur as a result of the investigation. If the process crimes occur as a result of the investigation, they do not indicate that the Trump campaign or administration had engaged in previous wrongdoing.

Indeed, many people believe that the launching of the Muller investigation was not justified based on the scant evidence at the time of Trump campaign collusion with Russia. The misdeeds involving Fusion GPS and the FBI provide some support for this criticism. So does the fact that the appointment of Mueller did not conform to the Justice Department Regulation governing the appointment of special counsels (which allowed for only criminal investigations, not counterintelligence investigations). These people will not be moved by the existence of crimes that occurred after the Mueller investigation began.

In sum, one need not believe that process crimes are unimportant to conclude that they do not necessarily constitute evidence of wrongdoing by the Trump campaign or administration. To the extent that he ignores this aspect of the critique of process crimes, Eliason is attacking a straw man.

Reader Discussion

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on February 08, 2019 at 09:31:00 am

I will never cease saying it: 18 USC 1001 and its ilk, and "obstruction of justice" generally, are abominations to a free people. One of the tacit, yet undeniable, founding principles of this country is that law enforcement must do its work with one hand tied behind its back, so to speak. Perjury is one thing. 18 USC 1001 is entirely another.

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QET
on February 08, 2019 at 10:02:09 am

It is truly amusing that the FBI, and LEO in general, can freely lie to the citizens but even a mis-statement is counted a lie and a crime by the FBI. Although, like most Supreme Court justices, he was generally a sanctimonious fool, he was on to something when he said the government must cut square corners.

This is a nice little police state we've got going, isn't it?

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EK
on February 08, 2019 at 11:21:03 am

Definition of a process crime:

A lie, deliberate or inadvertent, a misstatement of fact invariably committed ONLY be Republicans and their supporters.

BTW: comes news today that the execrable Rep Schiff met with the head of Fusion GPS WHILE the House Intel committee was conducting hearings. Schiff saw no need to recuse himself even AFTER having forced Rep Devin Nunes to recuse himself for speaking with members of the Trump Administration.

Another process crime - and one that fits MY definition above quite well.

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gabe
on February 08, 2019 at 12:30:53 pm

'@EK - What do you mean 'he,' Kemosabe?

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Hektor Bleriot
on February 09, 2019 at 09:38:52 am

O. W. Holmes, Jr.

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EK
on February 09, 2019 at 16:02:41 pm

Here is another "abomination":

https://originalismblog.typepad.com/the-originalism-blog/2019/02/steven-g-calabresi-gary-lawson-why-robert-muellers-appointment-as-special-counsel-was-unlawfulmichae.html

wherein we find that SC Mueller's very appointment is highly questionable and appears to violate three separate constitutional / statutory tenets to include the Appointments Clause and the Officer / Inferior Officer doctrine.

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gabe

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.