Andrew McCarthy offers ‘devastating critique’ of Mueller slyly shifting burden of proof on obstruction

With the Resistance in full panic mode, scrabbling to move the goal posts after the public release of special counsel Robert Mueller’s 448-page report, which showed no evidence of collusion, Andrew McCarthy scorched Mueller for punting on the issue of obstruction of justice.

With the Trump-hating cabal poring over the pages, painstakingly dissecting every passage to discover a hidden gem that will condemn the president, Mueller left the issue of obstructing dangling, saying that he couldn’t conclude Trump committed a crime, but also cannot exonerate him — which not only serves as a convenient out for him, but provides Democrats the tiniest of cracks to slither through in pursuit of Trump.

McCarthy, a senior fellow at the National Review Institute and a contributing editor of National Review, wrote an op-ed run in the New York Post critical of Mueller for so casually shifting the burden of proof after failing to resolve whether there were legal grounds and sufficient evidence to warrant obstruction of justice charges.

Instead, Mueller left it to Attorney General William Barr to find that there was no obstruction.

“This is unbecoming behavior for a prosecutor and an outrageous shifting of the burden of proof: The constitutional right of every American to force the government to prove a crime has been committed, rather than to have to prove his or her own innocence,” McCarthy wrote.

As summarized by Fox News senior political analyst Brit Hume: “In effect, Mueller reversed the burden of proof, placing it on the accused — indeed in this case placing it someone he declined to accuse.”

Mueller identified and investigated ten possible episodes of obstruction — which the media-Democrat complex reported as ten “instances” of obstruction. As McCarthy noted, in cases where charges are not filed, guidelines call for prosecutors to remain silent.

“This is exactly why prosecutors should never speak publicly about the evidence uncovered in an investigation of someone who isn’t charged,” he said. “The obligation of the prosecutor is to render a judgment about whether there is enough proof to charge a crime. If there is, the prosecutor indicts; if there is not, the prosecutor remains silent.”

In effect, McCarthy charged Mueller with what amounts to a “smear” of President Trump.

“Worse than that, it flouts the Constitution,” he added.

“If special counsel Mueller believed there was an obstruction offense, he should have had the courage of his convictions and recommended charging the president. Since he wasn’t convinced there was enough evidence to charge, he should have said he wasn’t recommending charges. Period,” McCarty asserted.

Mollie Hemingway, a senior editor at The Federalist, characterized McCarthy’s take as “a devastating critique of Mueller’s unsound approach to obstruction.”


As for obstruction, McCarthy was clear that “Trump’s conduct outlined on this score isn’t flattering, to put it mildly.”

After listing a few examples, an alleged attempt to fire Mueller and “dangled pardons” among them, he added that “there is evidence that cuts sharply against obstruction.”

“The president could have shut down the investigation at any time, but he didn’t. He could have asserted executive privilege to deny the special counsel access to key White House witnesses, such as McGahn. To the contrary, numerous witnesses were made available voluntarily (there was no need to try to subpoena them to the grand jury), and well over a million documents were disclosed, including voluminous notes of meetings between the president and his White House counsel.”


More important, according to McCarthy, is that Mueller’s investigation found “the president’s frustration wasn’t over fear of guilt — the typical motivation for obstruction — but that the investigation was undermining his ability to govern the country.”

“The existence of such a motive is a strong counter to evidence of a corrupt intent, critical because corrupt intent must be proved beyond a reasonable doubt in an obstruction case,” he concluded.


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