William Barr and Trump
Attorney General William Barr and the President. Credit: White House/Wikimedia Commons

From the title alone, you’ll get a good idea of the argument John Solomon has employed in his piece for The Hill, “Note to Team Mueller: If You Don’t Indict, You Can’t Incite.” He is obviously troubled by the recent reports that members of the special counsel’s team are voicing their concerns about how Attorney General Barr is handling the Mueller report. In response, he writes exactly what we expected to hear from Trump and his enablers.

The job of prosecutors is not, as the Times headline suggested, to pen “damaging” narratives about people they couldn’t indict. And it’s not their job to air those people’s dirty laundry, or that of suspects outside of a grand jury room or a courtroom.

Mueller concluded there wasn’t evidence President Trump colluded with Russia to hijack the 2016 election, and therefore no indictment was warranted. And he punted on the question of obstruction, leaving his bosses — Attorney General William Barr and Deputy Attorney General Rod Rosenstein — to determine that there wasn’t enough evidence to indict the president on that charge.

The seeds of this argument were planted almost a year ago, just after Trump hired Rudy Giuliani to lead his defense team.

President Donald Trump and his lawyers have made a strategic calculation that their fight against special counsel Robert Mueller is more political than it is legal.

They’re banking that the lead Russia investigator will follow long-standing Justice Department practice that a sitting president can’t be indicted, and that the only real threat to Trump’s survival is impeachment.

So long as that theory holds, Trump’s plan is to forcefully challenge Mueller in the arena he knows best — not the courtroom but the media, with a public campaign aimed at the special counsel’s credibility, especially among Republican voters and GOP members of Congress.

In other words, the plan was not to develop a legal defense against possible charges because they were confident that Mueller would abide by Justice Department guidelines that a sitting president can’t be indicted. Instead, they’d fight it out in the court of public opinion with attacks on the special counsel and his team in order to discredit the investigation. So we heard endlessly about the “hoax” and the “witch hunt” being carried out by “Mueller and his gang of angry Dems.”

In response to reports about members of Mueller’s team expressing their concerns, Giuliani is still at it.

In an interview Wednesday night with Fox News host Laura Ingraham, Giuliani said the reports prove the special counsel’s office was biased.

“They are a bunch of sneaky, unethical leakers,” he said. “And they are rabid Democrats who hate the president of United States.”

Now that Mueller has done what they expected all along and not indicted Trump, they can switch to a legal argument to suppress evidence that the president engaged in any wrongdoing. Solomon provides a rather professorial description of the ties that bind prosecutors in cases where an indictment doesn’t occur.

Prosecution isn’t a game of horseshoes or hand grenades where prosecutors get to score points or inflict damage without indicting the target. In fact, the Founding Fathers built a legal system specifically to avoid the tarring of citizens when there wasn’t enough proof to meet a criminal charge.

You see how that works? The plan all along has been to tar the Mueller team in the court of public opinion rather than mount a defense for the president’s actions. Knowing that there would be no indictment, everything now shifts to a legal case in which prosecutors have to shut up and go home. Meanwhile, the attorney general, who was hand-picked for this occasion, provides cover by deciding that the president didn’t commit the crime of obstruction of justice, something he had claimed was impossible before he got the job.

For Trump supporters who are looking for reasons to give the president a pass, this provides a pretty air-tight defense. But for the rest of us who prefer facts, this looks like a grand strategy to avoid dealing with actual evidence and only makes Trump look more guilty. In other words, it reeks of a cover-up.

Nancy LeTourneau

Follow Nancy on Twitter @Smartypants60.