Would A Prosecutor Ever Misuse His Powers To Remove A Political Opponent?

Unlike many political commenters, I'm mostly steering clear of commenting on what Robert Mueller might be up to.  Most of the facts in Mueller's possession are not publicly known.  Maybe he is actually on to something real.  I doubt it, but for a member of the public, there's no way of knowing for sure at this point.  

However, there are certainly some very good reasons to be dubious.  For starters, is it even conceivable that the recent raids on the home, office and hotel room of Trump personal counsel Michael Cohen have something to do with "Russian collusion" related to the 2016 election?  And if the raids don't have anything to do with that subject, what business is this of Mueller?  It seems that we have empowered a federal prosecutor with an unlimited budget, and 5000+ federal crimes to choose from, and a staff of committed Hillary partisans, not to investigate some specific crime (like the Watergate burglary), but rather to investigate anything and everything he wants going back for years until he comes up with something -- anything -- to "get" the President.  Is this now our idea of good public policy?  Isn't this whole process fundamentally inconsistent with honoring the results of the election that chose Trump as the President?

But for today, let's discuss an even better reason to be dubious about what is going on.  And that is the very powerful incentives operating upon prosecutors that lead them to misuse their prosecutorial powers for political purposes, particularly in the cause of taking down political opponents and rivals, and thereby trying to swing the levers of power back to their own party or faction.  Republicans are by no means pure on this subject; but when you look at the last decade or so it is completely extraordinary how many weak to fake and phony prosecutions have been brought by Democrat prosecutors against Republicans, particularly Republicans in marginal or swing seats that have a good chance of getting flipped to a Democrat if the Republican office-holder can be taken down.  Not so many instances of this come to mind for you?  Let's consider a some examples:

  • Here's one that's going on right now:  Governor Eric Greitens of Missouri.  Republican Greitens was elected in 2016 in a relatively close election (51/46), replacing prior two-term Democrat Governor Jay Nixon.  Barely a year later -- in January this year -- it emerged that Greitens was under investigation by Democrat St. Louis County Circuit Attorney (prosecutor) Kim Gardner for allegedly taking a non-consensual picture of a woman with whom he was having an affair.  (Taking a non-consensual picture is a crime in Missouri.)  Gardner indicted Greitens in February.  On April 8 Greitens's defense team made a motion to compel production of all exculpatory evidence.  In their papers, they quote from a deposition of the complaining witness in which she admits that (1) she has no picture, (2) she cannot remember seeing Greitens with a camera or a cell phone, and (3) as to the camera, "I haven’t talked about it because I don’t know if it’s because I’m remembering it through a dream or I – I’m not sure . . . ."  Now we get it -- it's one of those "recovered memories"!  Looks like this one may be falling apart before there is even a trial.  Meanwhile, with the new Republican Governor of Missouri under indictment, his administration is in something close to chaos.  It's not unlike the situation in which Trump finds himself.
  • Let's go back in time to 2005.  Republican Tom DeLay of Texas was the Majority Leader of the U.S. House of Representatives.  In September of that year he was indicted by one Ronnie Earle, Democrat District Attorney of Travis County (Austin), Texas, for alleged campaign finance violations in connection with raising money for a PAC for Texas legislative races.  Here's a lengthy write-up at Wikipedia.  In late 2005, Earle had DeLay arrested, and he promptly gave up the Majority Leader position.  In 2006, under pressure from his Republican colleagues, DeLay retired from Congress.  His prosecution dragged on for years, but in 2010 he was finally tried, and he was initially convicted.  However, on appeal, in 2013 the Court of Appeals in Texas reversed on all counts and entered judgment of acquittal, finding that the evidence was insufficient to support conviction.  (This is quite an unusual result -- almost always, on reversal of a criminal conviction, the appeals court will allow the prosecution to re-try the case.)  The prosecution further appealed to the Texas Court of Criminal Appeals (highest state court for criminal matters) which affirmed the Court of Appeals, and DeLay's acquittal, in 2014.  Meanwhile, with their erstwhile Majority Leader under indictment, the Republicans lost control of the House in the 2006 election.  How much did the fake scandal surrounding DeLay and his removal from Congress have to do with that?  That's not possible to know -- but it sure didn't hurt.
  • Ted Stevens was U.S. Senator from Alaska for some 40 years, starting in 1968.  In 2008 he was indicted by federal prosecutors (in Washington, D.C.) for allegedly accepting improper gifts, in the form of repairs and upgrades to his rustic Alaska retreat for which he allegedly paid less than full market value.  The amount of the allegedly improper gifts was less than $100,000 -- and Stevens's claim was that he had paid fair value for the repairs and upgrades and there was no gift.  Stevens's trial took place in Washington during the thick of the 2008 election campaign, and he was convicted 8 days before election day.  He then lost his re-election bid by a very narrow margin (48/47) to Democrat Mike Begich.  Begich became the 60th vote that got Obamacare through the Senate.  Immediately after the conviction it emerged that Stevens's Justice Department prosecutors had withheld from the defense exculpatory information to which the defense was entitled prior to trial.  In April 2009 the D.C. trial judge (Emmett Sullivan) held a hearing at which he excoriated the prosecutors for their improper conduct; he then vacated the conviction.  In 2012, after a lengthy investigation, a Special Counsel released a report on the matter that concluded as follows: "The investigation and prosecution of U.S. Senator Ted Stevens were permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated Senator Stevens's defense and his testimony, and seriously damaged the testimony and credibility of the government's key witness."  Too late for Stevens -- he had died in 2010 in a plane accident.  Meanwhile, we have Obamacare.  If you think that this was a prosecution by the Bush Justice Department, and Bush was a Republican, I would point out that the line Justice Department prosecutors in Washington, D.C., are partisan Democrats to a man, no matter the party of the President in office.  These people were no more loyal to Bush than Mueller is to Trump.
  • Joe Bruno was a Republican New York State Senator for about 30 years, and Majority Leader of the State Senate for about the last 15 of those years, up to his indictment by federal prosecutors in the Northern District of New York (Albany) in 2008.  Prior Manhattan Contrarian coverage of the Bruno allegations can be found here.  The allegations were that some $3.2 million paid as consulting fees to Bruno's business were actually bribes.  For those outside our state, the New York State Senate has long been controlled by Republicans by very narrow margins, and it has equally long been the top priority of state Democrats to retake that body.  What better way to start than by taking down the Senate Majority Leader?  After his indictment, Bruno retired from the Majority Leader job.  At his trial in 2009 Bruno was initially convicted.  However, in 2011 the conviction was reversed by the Second Circuit Court of Appeals (in light of the intervening Supreme Court decision in the Skilling case in 2010).  Bruno pursued additional appeals seeking to avoid retrial, but was unsuccessful.  He was finally re-tried in 2014, at which time he was acquitted of all charges. 
  • Returning to deep blue Austin, Texas, Ronnie Earle was succeeded in 2009 as Travis County DA by his protege, Rosemary Lehmberg, also a Democrat.  Lehmberg tussled with then-Texas Republican Governor Rick Perry on multiple subjects.  In 2013 she got herself arrested on a drunk driving charge, and pleaded guilty (and was also caught on a video acting abusively toward the arresting officer).  Perry sought Lehmberg's resignation, and then threatened to, and did, veto state funding for a "Public Integrity" DAs' group headed by Lehmberg.  In August 2014 Lehmberg indicted Governor Perry for the alleged "crimes" of "abuse of authority" and "coercion of a public official" for the acts of "threatening" to exercise, and then exercising, the veto power given to him as Governor by the Texas constitution.  Perry moved to dismiss the indictment, and the trial court judge denied the motion.  However, Perry was able to appeal.  The Texas Court of Appeals dismissed one of the charges against him in 2015, and the Texas Court of Criminal Appeals dismissed the other in 2016.  Meanwhile Perry was attempting to run for President while under the cloud of the supposed indictment.  He dropped out of the race during 2015, prior to his final vindication by the Court of Criminal Appeals.  Most readers here undoubtedly know that today Perry is the federal Secretary of Energy.
  • Republican Bob McDonnell served as Governor of purple Virginia from 2010 to 2014.  He succeeded Democrat Tim Kaine (you've heard of him).  During McDonnell's time in office, the Washington Post was constantly after him for one supposed scandal after another.  In March 2013 the Post broke a story about the latest "scandal," involving McDonnell accepting gifts from lobbyists.  Lawyers in the Obama administration Justice Department then spent the remainder of McDonnell's term investigating him over the gifts, and in the November 2013 election Democrat Terry McAuliffe narrowly (48/45) retook the seat.  McDonnell was then indicted by the feds in January 2014, and proclaimed his innocence.  However, later that year he was convicted, and the Fourth Circuit affirmed the conviction.  In 2016 the Supreme Court unanimously reversed, finding that what McDonnell did did not constitute a crime under the federal "honest services fraud" statute.  You will find detailed prior coverage from the Manhattan Contrarian here.  
  • And finally, we return again to New York to consider the matter of Dean Skelos.  Skelos was Joe Bruno's successor as Majority Leader of the New York State Senate, after Bruno had been forced to resign the Majority Leader position while under indictment.  Prior Manhattan Contrarian coverage of the Skelos charges can be found here.  In 2015, when the Republicans held a one seat majority in the State Senate, Skelos was indicted by federal prosecutors under Preet Bharara in the Southern District of New York (Manhattan).  In that prior post, I characterized the Skelos charges as "remarkably thin."  The main one was that Skelos had allegedly leaned on a campaign contributor to give his son a job (that proved to be a "no show" job) and Skelos then got the contributor's company a contract with Nassau County.  It was always a major problem with the charges that Skelos's job was in the New York State Senate, and he had no job with Nassau County, let alone a seat in the County Legislature that had approval authority over the contract in question.  Skelos was tried on the charges in late 2015, and was convicted.  After the conviction, Skelos was forced to resign from the State Senate.  A special election was then held in April 2016 to fill the seat, which was a competitive seat in Nassau County, and the Democrat won by a margin of 862 votes.  (Because the Republican majority had been only one seat, that election flipped the majority to the Democrats.  Remarkably, the Republicans were nevertheless able to retain a sort of control in the State Senate by doing a deal with a group of breakaway Democrats.  That story is way to long to tell in this post.)  If you are starting to notice a pattern here, you will not be surprised to learn that the Skelos conviction was then reversed on appeal, in 2017.  The ground for the reversal was that the jury instructions were improper under the decision of the Supreme Court in the McDonnell case.  A retrial is currently scheduled in the Skelos case for June 18.        

Here's a summary of the above:  Seven indictments, all by Democrat prosecutors against high-ranking Republican office-holders, and all with a potential to influence political control of some important government body.  Of the seven prosecutions, one (Greitens) has not yet gone to trial (and may never), one (Perry) was dismissed on motion before ever going to trial; but the other five all resulted in convictions -- all of which were subsequently reversed.  Of the five convictions, three were then undone by the trial (Stevens) or appeal (DeLay, McDonnell) courts in ways that precluded retrial, and one (Bruno) resulted in an acquittal on retrial.  Skelos awaits retrial.  The number of convictions that have stuck: zero.  Meanwhile, the Congress flipped from Republican to Democrat control after indictment of the Republican Majority Leader, the Senate got its 60th Democrat Senator just in time for the Obamacare vote, the governorship of Virginia flipped from Republican to Democrat just prior to the indictment of the outgoing Republican governor, and the New York State Senate flipped from Republican to Democrat majority after conviction of the Majority Leader.

By the way, can you think of a single example of a Republican prosecutor prosecuting a Democrat officeholder on a dubious charge in a similar swing situation with the potential to change political control of some important body?  I cannot.  That doesn't mean that there aren't any examples.  First, I am not particularly well-informed about political matters in red states where Republicans control the prosecutorships.  And at the federal level, Republicans have not had the opportunity for a long time to misuse prosecutorial powers, because the Justice Department was 100% under the control of Democrats during the eight years of the Obama administration, and consists of a huge majority of Democrats even when a Republican President and Attorney General are nominally in charge.  So the lack of examples with the parties reversed should not be taken as proof of Republican purity.

Still, looking at the evidence above, you cannot help but conclude that prosecution of political opponents in an effort to swing control of the government is definitely a staple part of the Democrat political playbook.  Would a prosecutor misuse his powers to take out a political opponent and swing control of some governmental body to the people on his side?  Yes, and regularly.  This is by far the most compelling reason to be highly skeptical of the Mueller endeavor.