Rod Rosenstein appointed Robert Mueller to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” No individuals were named to be investigated. Several suspicious names turned up during investigation.
On April 18, a letter from a handful of GOP representatives calling for the Justice Department to investigate Hillary Clinton and five others was top story on Fox news, barely mentioned elsewhere. The accusations seem to be based on animosity toward the individuals, rather than actual evidence of crime. A typical accusation, “… we refer HC to DOJ for potential violation (s) of US of 18 USC 1505 and 1515 B.” No admissible evidence was presented.
Our legal system has evolved more or less from English Common Law. Important principals guide us: The presumption of innocence until proven guilty. The Blackstone Formulation, “It is better that 10 guilty persons escape than that one innocent suffer,” William Blackstone, 1765, derived from older texts including the Bible. Another basis is due process guaranteed by the Fourth and Fifth Amendments to the Constitution. It means that there are specific steps that must be followed to protect the public from misguided, overzealous or inept, prosecution. In particular: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The presumption of innocence logically bars starting an investigation with an individual rather than a crime. If the letter began each claim with a citation of facts that imply crime, then Justice would have a basis to investigate that. Merely mentioning a person and an event in the same context does not appear to meet the burden of probable cause. Law enforcement, police in the broadest context are expected to have probable cause, reasonable factual basis to suspect a crime is being or has been committed, before they act. Then they investigate the event to determine if it happened and then who did it, or caused it to be done.
The justice system seems to be something with which our president and his minions are unfamiliar, or maybe he does not care. He keeps calling for “them” to investigate “crooked Hillary” while his groupies chant “Lock her up.”
It reminds me of high school pep rallies where we were encouraged to chant pointless cheers in praise of men we barely knew, possibly even disliked. The way the justice system is presumed to work in most of the modern world is that someone discovers a crime and makes a complaint, or the police have probable cause to believe there is a crime to be investigated. The crime is solved when the police investigate and determine who probably did it, and begin the prosecution. The evidence is examined by a prosecutor who should see the job as: to do the right thing, justice. The prosecutor has the option to drop or suspend a case if she or he is not convinced it is in the public interest to invest time and money in further prosecution. Of course, a crime is not a crime if it’s SOP for influential clients of lawyers like Cohen and Giuliani.
A civilized system does not start out with a person and look for (or imagine) evidence of a crime, a classic witch hunt (lynch mob). It is a typical tactic of dictatorship and often leads to confinement and persecution without any evidence at all. The Constitution protects people from misguided or overzealous officials targeting a person and using endless investigation to harass them where there is no reasonable suspicion.
If investigation starts with a person, rather than an event, it can be very inefficient, much time and energy wasted, like looking for fish in the desert.
Ken Obenski is a forensic engineer, now safety and freedom advocate in South Kona. He writes a biweekly column for West Hawaii Today. Email obenskik@gmail.com
