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McCarthy: Mueller’s probe has gone far outside Justice Dept. standards

(National SentinelCreating Crimes: Special counsel Robert Mueller’s ongoing investigation and indictments of minor Trump campaign figures are examples of how he’s been “shredding Justice Department policy” even as it strays far from its original mandate, according to a seasoned former federal prosecutor.

Andrew C. McCarthy, writing in the National Review, took Mueller to task over his recent indictments of onetime Trump campaign manager Paul Manafort and his business associate, Richard Gates, where he charged both of them with major, serious crimes involving bank fraud and money-laundering, but then allowed Gates to plead guilty to minor charges.

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That, McCarthy said, goes against standard Justice Department procedures for charging suspects, and it shows that Mueller is essentially ‘legislating’ new crimes and charging procedures as he goes along.

McCarthy writes:

The two indictments contain many other felony charges. But sticking with just these most serious ones, we can safely say that, on February 22, Manafort and Gates were portrayed as high-order federal felons who faced decades of prison time based on financial frauds in the nine-digit range. And while I have previously discussed potential proof problems for the money-laundering charge, proving bank fraud and tax fraud is comparatively straightforward. The indictment indicates that the evidence of these crimes is well documented and daunting.

Yet, the very next day, Friday, February 23, Mueller permitted Gates to plead guilty to two minor charges — a vaporous “conspiracy against the United States” and the process crime of misleading investigators, each carrying a sentence of zero to five years in jail. This flouted Justice Department policies designed to ensure that federal law is enforced evenhandedly across the nation.

Specifically, McCarthy notes that Mueller flouted a rule requiring federal prosecutors to charge suspects with “the most serious readily provable charge consistent with the nature and extent of his/her conduct.”

“In a properly functioning Justice Department, a defendant is not accused of over $100 million in financial fraud and then, within 24 hours, permitted to plead guilty in a wrist-slap deal that drops the major allegations and caps his potential sentence well beneath the penalties applicable by statute,” he wrote.

McCarthy also said that by charging Gates in this manner, he likely tainted the case against Manafort:




The Justice Department’s manual further admonishes prosecutors to refrain from guilty pleas that could “adversely affect the investigation or prosecution of others.” That is exactly what Mueller has done to the ongoing prosecution of Manafort. By giving Gates a pass on the bank-fraud (and tax-fraud, and money-laundering) charges, Mueller signals that these allegations are inflated. A jury could well feel justified in giving Manafort a pass on them, too.

The former prosecutor also repeated an earlier charge: That Mueller’s investigation likely should never have happened, given that there were no allegations of criminal activity by President Donald J. Trump.

Mueller’s original mandate was supposed to encompass “Russian interference in the 2016 election and possible Trump-campaign collusion therein,” McCarthy noted. But he’s been given wide latitude by Deputy Attorney General Rod Rosenstein, who appointed him, to probe virtually anything regarding anyone even remotely tied to the president’s 2016 campaign.

“To trigger the appointment of a special counsel, federal regulations require the Justice Department to identify the crimes that warrant investigation and prosecution — crimes that the Justice Department is too conflicted to investigate in the normal course; crimes that become the parameters of the special counsel’s jurisdiction,” McCarthy wrote.

“Rosenstein, instead, put the cart before the horse: Mueller was invited to conduct a fishing expedition, a boundless quest to hunt for undiscovered crimes, rather than an investigation and prosecution of known crimes.

“That deviation, it turns out, is not the half of it. With Rosenstein’s passive approval, Mueller is shredding Justice Department charging policy by alleging earth-shattering crimes, then cutting a sweetheart deal that shields the defendant from liability for those crimes and from the penalties prescribed by Congress,” he added.

“The special counsel, moreover, has become a legislature unto himself, promulgating the new, grandiose crime of ‘conspiracy against the United States’ by distorting the concept of ‘fraud,'” he continued, later noting that there is no crime in the federal statutes called “conspiracy against the United States.”

“Section 371 criminalizes conspiracy “to defraud the United States,” McCarthy wrote.

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