Guilty Until Proven Innocent: Mueller Upends Rule of Law, in Final Appearance—Sidney Powell

June 1, 2019 Updated: August 15, 2019

When former special counsel Robert Mueller formally closed the Russia investigation on May 29, he opened the door to wide-ranging speculation as to the intent behind his statement.

In the eyes of former federal prosecutor Sidney Powell, Mueller’s words turned the rule of law and the presumption of innocence on their heads.

Epoch Times senior editor Jan Jekielek sat down with Powell, who is the author of “Licensed to Lie: Exposing Corruption in the Department of Justice.” She was lead counsel in more than 500 appeals in the 5th Circuit, and she is ranked by her Texas peers as a “super lawyer.”

They discussed the implications of Mueller’s May 29 press conference and the recent Justice Department (DOJ) decision not to prosecute a serial leaker, as well as corruption in the department and what can be done to correct it.

Jan Jekielek: You wrote “Licensed to Lie” in 2014, maybe long before [it was widely known] that there is corruption, which makes you an expert on these issues. Recently, Mueller tendered his resignation, did a press conference. A lot of people have a lot to say about that. What are your thoughts?

Sidney Powell: I was extremely disappointed in Mr. Mueller’s press conference. Yes, I published the book, hoping to put an end to the corruption at the Department of Justice so people could see what was going on. Instead, it’s simply gotten worse, as evidenced by Mr. Mueller’s press conference … in which he literally stands the rule of law and the presumption of innocence on their head—just completely turns the presumption of innocence upside down and puts the burden on the president to prove that he’s innocent, instead of accepting the burden on the government to prove guilt beyond a reasonable doubt or even probable cause to indict, which they clearly didn’t have.

In fact, all you have to do is go to volume 2, page 9 of Mr. Mueller’s report. I think it’s the second paragraph that [talks] about statutes in an ordinary case … potentially relevant obstruction-of-justice statutes in an ordinary case. To know that means they have absolutely nothing with which they can charge the president of the United States, even when he wasn’t the president of the United States. You don’t conduct a two-year investigation and then come out with 248 pages of smear tactics, which is exactly what volume 2 of the report was, and then talk about potentially relevant statutes.

You either have a clear violation of a federal statute or you don’t. And that’s really all that should have been said there. We don’t have a violation of any federal obstruction statute.

Mr. Jekielek: So, Sidney, for the benefit of our audience, how is the presumption of innocence exactly turned on its head here?

Ms. Powell: Well, our whole system depends on presuming that someone charged with a crime is innocent until proven guilty. That’s the general concept of the presumption of innocence. And then, Mueller goes instead and says … Do you have the exact quote?

Mr. Jekielek: I do have a quote that disturbed me. And the quote is, “If we had confidence that the president clearly did not commit a crime, we would have said so.”

Ms. Powell: And that’s not their job. He’s saying there that we had to be satisfied clearly that the president did not commit a crime for us to say that. That is not the presumption of innocence. The responsibility is on the government to prove beyond a reasonable doubt that someone is guilty of a crime. And really, before you indict somebody, at least as a federal prosecutor for 10 years—under nine different U.S. attorneys in three districts across the country—I was taught, and I taught others, that if you don’t have a solid case, don’t turn somebody’s life upside down and literally ruin their lives—and that of their families—just because you want to try to notch your belt with somebody’s scalp or get your name in the newspaper or whatever.

Unless they really committed a crime, you’re sure they did it and that it’s the right person, don’t bring charges against somebody. So most good prosecutors I know would apply the beyond-a-reasonable-doubt standard at the early stage before deciding whether to bring charges. I mean, I wanted to be sure I had the right person, I wanted to be sure it was a real crime. I didn’t piece together parts of different statutes to make a crime out of something that wasn’t, or try to stretch the law like Mr. Weissmann is famous for to reach conduct that’s not even criminal.

There’s a lot of that in the Mueller report, too, and even in Mr. Mueller’s comments, talking about how they could even bring any kind of obstruction or things they looked at as obstruction of justice against this president. It was absurd. Here you have Hillary Clinton literally destroying evidence, BleachBit-ing her computer, and setting fire to the server at her house or something. That is obstruction of justice; that is destruction of evidence. But somebody saying “stand strong” is not obstruction of justice, yet that was one of the things listed in the Mueller report as a potentially obstructive act. And you don’t talk about potentially relevant statutes at the end of a two-year investigation. If you can’t decide by that amount of time, and looking at all the evidence, that something’s a clear violation, then all you should say is: There’s no violation here. We’re not bringing charges.

Mr. Jekielek: In this highly politicized climate that we’re in, the significance of Mueller saying this at this press conference, where all eyes—probably not just American—in the world are on him. What are your thoughts?

Ms. Powell: It was extremely divisive. It couldn’t have been more divisive. He’s even going to be dividing lawyers now. I’m sure there’s some lawyers that despise this president so badly, and I don’t understand why. I get that people disagree with some of the policies, but really, the law is supposed to be the law, regardless of who’s in office.

What we’ve witnessed in the last, I don’t know, 15, 20 years, is an extraordinary rise of double standards, where people who are Democrats are given passes on clear offenses, and Republicans are literally targeted and prosecuted and their lives destroyed, on things that are even made up. That’s part of what prompted me to the book. Arthur Andersen, a venerable accounting firm of 75 years, was the gold standard in accounting, was purposefully destroyed on a made-up crime, only to be reversed three years later by the Supreme Court in a unanimous decision.

And people want to talk about Andersen as if the only issue were the jury instructions eliminating criminal intent, which was bad enough, but the real offense in Andersen was the drafting of the indictment that pieced together parts of two different statutes to make a crime out of something that wasn’t. And the deliberate destruction of the firm, knowing that that’s what they were doing. And the 85,000 jobs that went with it.

Mr. Jekielek: So, was that a politicized situation? Was that the reason that this happened in your view?

Ms. Powell: I think it was.

Mr. Jekielek: So this was kind of the beginning of what we’re seeing more of these days. Partisanship in the—

Ms. Powell: That was the Bush Department of Justice, but they authorized the destruction of Andersen, knowing that it was going to deal Andersen the death penalty. Andersen represented 2,500 publicly traded companies. And so they sealed the indictment for a week while they worked behind the scenes to avoid upheaval in the markets, because they knew as soon as they unsealed it, Andersen was dead.

Mr. Jekielek: So, you know, a number of … Democratic presidential candidates, a number on the democratic side are saying, “Well, basically, he [Mueller] was telling us we should impeach.” Is that how you read this?

Ms. Powell: Oh, I think that’s perfectly acceptable for them to read it that way. I think he was throwing red meat to the Democrats, yes. I thought he was doing that in volume 2 of the report. I think that’s what the entire volume 2 of the report was about. But one of the other things that really upsets me is, well, the list is so long, it’s hard to—we don’t have time to go through the whole list. He shouldn’t have been appointed in the first place. There should never have been a special counsel appointed. The president had every right to fire James Comey, and to launch an obstruction-of-justice investigation over that was absurd.

And I think Mr. Mueller knew before he started the job that there was no collusion. I don’t see how he could not have known that when Andrew Weissmann, his head henchman, was running the back channel with Bruce Ohr and Christopher Steele, between the FBI and the Department of Justice, on the bogus Steele dossier.

You know, most Americans just want the truth, whatever it is—the unvarnished truth. Let the chips fall where they may, fire the people that need to be fired, hold them accountable, and let’s start over. But until we know exactly what happened and who’s responsible for it, no one in this country can have any faith or trust in the Department of Justice or the FBI. And these are two of what should be the most stellar institutions in the country. I love the Department of Justice and the FBI. I wrote that book. Even the judges I criticize, I love those judges. And that’s why I wrote it. Because if you care about something, you want to make it better and you want it to be the best it can possibly be.

It can’t be that way if it’s not honest.

Mr. Jekielek: You just mentioned the American people want the truth, the unvarnished truth. And people actually have been calling for a complete 100 percent unredacted Mueller report, because there were these redactions. Is that something you would support then? Including those grand jury elements?

Ms. Powell: Well, Congress has 98.5 percent of the report unredacted, which is the most transparent anybody has ever been with a report like this. All the attorney general had to say was the conclusions of it. So we have not only the most transparent president in history, who produced 1.4 million documents and waived executive privilege and waived attorney-client privilege so that everything and everybody could testify for how many hours. … Mr. Mueller and his team wanted it, you know, hundreds of hours of testimony. And then Attorney General Barr, literally, all he had to say was, “No charges are being brought.” That’s all he owed to the American people or Congress.

Instead, he produced the whole report in the interest of transparency, except the grand jury material that he’s legally required to protect or anything that might be classified for some reason. So I think there’s been ample transparency there. I can’t imagine that there’s anything in that little bit of material. It certainly wouldn’t change the conclusions. And Mr. Mueller didn’t seek to change the conclusions. Mr. Mueller and Mr. Barr agree on the conclusions of the report.

Frankly, when Mr. Mueller did not recommend pressing charges, which he could have recommended. Even under his view of the OLC decision as not allowing them to indict, that didn’t mean he couldn’t have said: “We recommend indicting. If he were not a sitting president, we would indict him.” The report doesn’t say that. Instead, it talks about the potentially relevant obstruction statutes in an ordinary case.

This is not an ordinary case. This is the president of the United States, who had every right to fire the person he fired. The investigation went on uninterrupted. He disclosed millions of pages of documents and countless witnesses testified. How anybody could read obstruction of justice into any of that is beyond my comprehension. And there isn’t a single obstruction statute that does apply, even under Mr. Weissmann’s broad reading of the law or willingness to piece together parts of different statutes to make a new crime out of something that wasn’t.

Mr. Jekielek: As you’re speaking, it just strikes me as always, you know, leaving a little bit of ambiguity or some sort of question to latch onto—

Ms. Powell: A cloud.

Mr. Jekielek: A cloud? That’s interesting. I mean, it’s bizarre—

Ms. Powell: They’ve done that to Mr. Trump from the beginning. From the time he rode down the escalator, they have tried to create a cloud over and around him. That was the purpose of the Mueller investigation in the first place. It was part of the insurance policy.

Mr. Jekielek: Sidney, when you talk about the cloud, it makes me think of what Steve Moore told me after he withdrew from his Fed nomination, which was, it was “death by a thousand cuts” he was facing. Is this the kind of thing?

Ms. Powell: Yes, it is. It’s the Democrats’ new politics of personal destruction. I don’t know how exactly new it is, but they’ve taken it to the N-th degree now. And it’s like what happened to General Flynn, you know. That was a targeted take-out of a very good man.

Mr. Jekielek: The Mueller press conference, in terms of unprecedented FBI or DOJ announcements, it’s been compared to, you know, Comey’s complete exoneration of Hillary Clinton. Where do you feel it stands?

Ms. Powell: I think that’s a good analogy. It’s everything a prosecutor should not do. There’s either evidence to bring charges and you bring charges, or you just decline prosecution, but you don’t go out and put the burden of proof on the defendant to prove he’s innocent and smear him with scads of facts and allegations. He did exactly the same thing Comey did, except even worse, because he did it against the president of the United States and in a report with 250 pages of innuendo and suggestions.

Mr. Jekielek: It’s stunning when I hear it said that way. Let’s jump to another thing that happened on the same day that this press conference was given by special counsel Mueller. The Office of the Inspector General basically made an announcement … the DOJ has declined to prosecute someone who is established as a serial leaker at the highest levels of … a deputy assistant director of the FBI, basically. You’re familiar with this situation?

Ms. Powell: A little bit. I saw the article or a press release that you’re talking about. I was absolutely appalled. That is exactly the problem of the two-tiered system of justice that we are talking about. For somebody in the FBI to be excused of that behavior when someone like General Flynn is prosecuted for it by Mueller’s own squad, there’s no semblance of justice there, whatsoever.

That deputy assistant director was under oath and lied to the inspector general of the U.S. Department of Justice, in an interview in which he knew he was being interviewed for that specific purpose.

Mr. Jekielek: Under oath.

Ms. Powell: Well, I’m assuming he’s under oath, but, at the very least, he knew he was being specifically interviewed for misconduct and wrongdoing. And for him to lie under those circumstances is completely unacceptable. Judge Sullivan went on at length in the hearing about General Flynn about how he had lied in the White House. Well, this is someone lying in the Department of Justice or in the FBI, when they are the very person sworn to uphold the law, and they’re in full knowledge of the fact they are being interviewed by an official of the Department of Justice, in a situation in which they are supposed to tell the truth. There’s no ambiguity about the conversation, like there was with General Flynn, when the agents just stopped by to visit supposedly, in a setup by McCabe and Comey that we now know was preplanned by multiple agents sitting in a conference room as to how they were going to do that. You know, this was a deputy assistant director who knew exactly what was going on and what he was supposed to do, sworn to enforce the law, and sits there and lies. And then, the Department of Justice declines prosecution? It’s appalling.

Mr. Jekielek: Sidney, so when I hear it put this way, and this is something I’ve been thinking about a lot, it really undermines our faith in the system, right?

Ms. Powell: It does.

Mr. Jekielek: What’s the course from here? And I know certainly the attorney general is doing some in-depth investigations, and we know that’s part of it. But in your mind, especially with your background within the legal system as a prosecutor, what are the next steps to rehabilitate these agencies?

Ms. Powell: Well, I think that decision needs to be re-examined. I don’t know who it is that declined that prosecution, whether it’s the U.S. attorney for the District of Columbia, with whom I have serious issues, for the passes that she has given to people. I think we need a new U.S. attorney for the District of Columbia. I think she’s part of the problem.

She’s certainly not interested in draining the swamp. She’s the one who gave the pass to the Awan brother, Imran Awan, who had the passwords to 40 members of Congress, all their emails, and everything, who was stealing millions of dollars worth of equipment from Congress. I think he pleaded guilty to one false statement about a bank filing or something, a loan application. And when he had downloaded and sent God-only-knows-where, untold megabytes of information from congressional email accounts, it could have been highly classified information. There is no telling he had access to anything Debbie Wasserman Schultz had access to. He left her notebook computer in a phone booth. I mean, the things that man did would have constituted 20 federal felonies at a minimum. And I think he got probation or just a few months in prison on one guilty plea, and they protected him and shut him down like crazy, when there were scads of people implicated in that. I mean, there are 40 members of Congress, some of whom are sitting now, including Ms. Schultz, that are implicated in that. It never got a full investigation, and the U.S. attorney in D.C. gave it a pass—essentially a pass.

And then there was, of course, the Mr. Wolf … of the Senate Select Committee on Intelligence, the head staff person, who deliberately leaked to his young mistress at one of the newspapers, the entire FISA application on Carter Page. He got a virtual pass. There are multiple situations with respect to the U.S. attorney in D.C. and her application of a double standard in a big way to protect Democratic operatives.

Mr. Jekielek: So part of your solution is to identify people who have been making potentially problematic decisions and replace them. But something allowed for this sort of corruption to creep in over time. As you said, it’s been increasing since the time when you wrote your book.

Ms. Powell: There are a number of things in the system that needed to be corrected. In fact, Harvey Silverglate and I are co-authoring a book called “Conviction Machine: Standing Up to Federal Prosecutorial Abuse.” And in that, we’re going to suggest a number of things that should be done to help fix the criminal justice system. And one of them is to allow for people who have been victims of intentional prosecutorial misconduct to sue the prosecutors. Right now, prosecutors have absolute immunity.

Somebody could make up a case against you, send you to prison for decades when you were completely innocent. They know they did it and nothing happens to them. Nothing.

Mr. Jekielek: They know they did it. Other people know they did it.

Ms. Powell: Yeah.

Mr. Jekielek: And still nothing happens?

Ms. Powell: And nothing happens to them.

Mr. Jekielek: Fascinating.

Ms. Powell: Yes. And we have got to stop protecting federal employees who are guilty of wrongdoing. They all need to be fired for any lack of candor or any sort of significant misconduct in their departments. They have way too much protection. We’re supposed to have a citizen government. Instead, what we have is an entrenched bureaucracy of people who think they know better than all the citizens in the country, and that they will outlast whoever the U.S. attorney is or whoever the attorney general is. “Attorney generals come and go, but I’m a career employee. I can run this place. I’m gonna be here forever.”

Well, that attitude is not right. They’re all supposed to be public servants. I think a 15-year maximum for anyone in government service in any position, except possibly the military, should be an across-the-board thing, so that there’s more flow of citizens in and out of the department, and they should certainly be fired for misconduct, without question.

Mr. Jekielek: Let’s say Congress, the House goes for impeachment. What happens next? Do you think they will?

Ms. Powell: They might. They’re going to try to do everything they possibly can to distract from the real investigation that’s going to be going on: to find out about the multiple abuses of the Obama administration in particular and spying on Americans. I mean, if you look back at the 2017 decision of Judge Rosemary Collyer, the chief judge at the FISA court, she excoriates the FBI and the National Security Division of the Department of Justice and the NSA for flagrant abuses of their surveillance powers and their lack of candor with the FISA court. There was a lot going on there. And Mr. Comey had given illegal, unfettered access to four private contractors to the entire NSA database. And, of course, we have the 300 … queries and unmaskings done by Samantha Power, when most people unmasked maybe two or three people in their entire careers. Something significant was going on there.

Mr. Jekielek: So, on one hand, there’s this investigation or these set of investigations that you’re describing. On the other hand, there’s these congressional investigations around the president his family and his financial dealings and just about anything.

Ms. Powell: Anything they can do to harass him and keep the cloud over him and make it more difficult for him to do his job when he’s trying to turn the country around—and has turned it around to a large degree. I mean, look at our economy. It’s the best it’s been in, I don’t know when, my lifetime maybe.

Mr. Jekielek: So what’s your advice to the president at this point after this Mueller press conference, these endless congressional investigations? He’s saying, “Case closed.” It seems like you agree when it comes to the Mueller investigation. What your recommendation to him?

Ms. Powell: To stay strong and keep running the country like he knows it needs to be run. I would encourage him to be even stronger on the border issues. I’ve encouraged—and I think you and I have talked about this—his ability to stop all immigration until things are fixed. I think that’s exactly what needs to be happening, because we’re absolutely overwhelmed at the border, and it’s going to affect everything for decades if it isn’t stopped.

But in terms of this and this investigation, stay the course. It’s pure harassment.

This interview has been edited for clarity and brevity.

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Follow Jan on Twitter: @JanJekielek