Trump verses Mueller versus Trump: Time to Balance our Scales of Justice?
As a loyal Democrat, I might be accused of treason by my friends in asking: Has President Trump gotten something right in raising a possible bias in the Mueller investigation?
Before you dismiss this as insane, did you know President Obama’s Solicitor General argued to the U.S. Supreme Court on January 4th 2010:
“U.S. citizens do not have a constitutional right not to be framed.” (Pottawatamie County, Iowa v. McGhee)
This argument was made in a case where two black men spent nearly twenty-five years in prison for a murder they didn’t commit. They were suing Pottawattamie County, Iowa law enforcement civilly, seeking monetary damages for their false imprisonment (See Washington Post Article)
In Presidential tweets Trump has denounced Robert Mueller as a rogue prosecutor who “is only looking at one side…wait until it comes out how horribly & viciously they are treating people, ruining lives for them refusing to lie.”
Trump has actually landed on a troubling issue.
Robert Mueller says former Trump’s campaign manager Paul Manafort lied and has breached their plea bargain agreement. Rightwing conspiracy theorist, Jerome Corsi with links to Roger Stone, says he has been offered a plea deal if he’ll admit he lied. He says he didn’t lie and will not lie to say he lied. Michael Cohen, the President’s personal lawyer, has now pled guilty for lying to Congress about a Trump proposal to build a “Trump Tower” in Moscow. So assuming they all lied, how are we to know when they might be telling the truth?
President Trumps says Cohen is lying “…trying to get a reduced sentence.”
Michael Flynn, President Trump’s first national security adviser, has “cooperated” so much that the prosecution is recommending no time in prison. It’s said Flynn was interviewed 19 times. Check this CBS 60 Minute segment out where Scott Pelley exposes a witness who was interviewed more than 70 times and “made to write his proposed testimony over and over until he got his answers straight.” CBS 60 Minutes, February 24,
What kind of song and dance do you have to do to avoid prison all together?
This is the time to kick an ant bed:
President Trump, while obviously looking out for himself, forces us to look at how plea bargains are made and to ask what are the risks of distorting the truth?
Did you know prosecutors are shielded from civil liability under the Federal Tort Claims Act. As a result, testimony can be suborned: a felon, whom the government wants as a witness, can be pressured or cajoled to change his testimony; and most common, felons are offered a light sentence or a reduction in an existing prison sentence in exchange for their testimony.
Also, in the secrecy of a grand jury room- where no judge or counsel for the target is present- prosecutors are free to withhold exculpatory evidence.
True or false?
There have there been more than fifteen hundred exonerations over the last 20 years, 156 of them have been death row inmates! If there wasn’t a problem with prosecutors, why would there be so many exonerations?
If I were the President Trump’s lawyer I would point out, while cloaked in the secrecy of a grand jury room, with no judge or defense counsel present, prosecutors can withhold evidence that might free the target.
I would point out that there is no accountability inside a grand jury, no self correcting mechanism because the target isn’t allowed to challenge the testimony or evidence being presented behind closed doors.
I would demand to see videos of every witness interview. Was there pressure or threats or cajoling to get the testimony the government wants?
President Trump says that there’s nothing illegal about his trying to do business in Russia. And he’s right. Should he have a legal right to raise that objection before Cohen’s testimony is presented to a grand jury?
Former Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals argued that the rate at which prosecutors withhold “exculpatory” evidence is “epidemic.”
Prosecutors argue it is their duty to pursue criminal cases with zest. But why shouldn’t a “duty to convict” be balanced by the presence of legal counsel for the defense as a check on the truth?
The President says prosecutors can ruin lives.
Ask former U.S. Senator Ted Stevens’s family. The Alaska Republican was brought to trial for corruption while he was running for reelection. After he was defeated it was revealed that DOJ prosecutors withheld exculpatory evidence. A subsequent investigation by Federal Judge Emmitt Sullivan concluded:
“The extent of the corruption is shocking,” declared. “It’s the worst misconduct we’ve seen in a generation by prosecutors at the Department of Justice.”
The government obtains over 99% of the indictments they seek. Why? Because in a secret grand jury proceeding where no one is watching, prosecutors, it’s been said, can “indict a ham sandwich.” After indicted, 97% plead guilty. They do so generally to get a shorter sentence. But a plea agreement is not binding, it’s not a contract. Prosecutors can ask the judge for more time in prison and judges frequently add additional years for “related conduct”, offences for which the prosecution agreed not to charge the defendant. Paul Manafort is looking down this barrel.
Whether or not President Trump’s harsh critique of Bob Muller is simply a diversion, an attempt to discredit the investigation into his own misconduct, he has raised serious questions about Due Process that Congress must address.
“Mass incarceration” and “the “Over Federalization” of crime is now imprisoning over 2,000,000 people. It’s time for the new Democratic majority in Congress to begin a serious discussion of Criminal Justice reform. Not to save President Trump, but more so to balance the scales of justice for those who have no voice, Congress must hold hearings on reforming our grand jury system to ensure the “presumption of innocence” is more than comforting rhetoric.
Congress should consider three safeguards to Balance the Scales of Justice:
1) Because a grand jury is a critical stage of a criminal proceeding targets should have the right to have counsel present empowered to object to improper evidence or false testimony before being heard by grand jurors. These objections could be adjudicated by a magistrate, the same process as is now used in a legal deposition.
2) Congress must repeal the exemption of civil liability given to prosecutors by the Federal Tort Claims Act to deter deliberate, intentional- willful misconduct.
3) To eliminate the perception or reality of coerced testimony, Congress must require all FBI interviews with witnesses and targets be recorded and those recordings be made available to the defense.
These changes would help provide much-needed Due Process to increase public confidence in the fairness of convictions, deter government misconduct and provide a greater measure of justice- balancing the scales of justice for us all.
Don Siegelman — Former Governor of Alabama (1999–2003)
