“Putin’s goons must never be allowed to question U.S. citizens” is the headline over a terrific editorial in the New York Post. It reckons that President Trump did the right thing by “finally rejecting” President Putin’s “outrageous proposal to let his intelligence goons question US citizens, including a former ambassador to Moscow.” The Post hopes, as does the Sun, that Mr. Trump gets “how unacceptable the idea is.”

The next question will be whether anyone is going to get the message to the special prosecutor, Robert Mueller. For the harsh fact is that the most likely avenue for the Russ regime to gain a chance to question Americans is in the criminal cases Mr. Mueller is launching against Russians. Only a week ago indictments were handed up against a dozen agents of Moscow’s main intelligence agency, the GRU.

Robert Mueller. (Image source: FBI via Wikipedia)

Those indictments had barely been filed when it was being pointed out that the accused Russians were unlikely to see the inside of an American courtroom. That may be unlikely. It’s not, though, impossible. One could at least imagine Mr. Putin, who is nothing if not calculating and devious, pointing to one of his thugs and saying, “Hey, boychik, get over there and answer those charges.”

What happens then? For even a hostile intelligence officer haled in an American criminal court has certain rights. This is owing to the Sixth Amendment. It ordains that in “all criminal prosecutions” the accused shall be “confronted with the witnesses against him” and have “compulsory process for obtaining witnesses in his favor.” Might Mr. Putin give up an accused officer in exchange for such sport?

We, for one, wouldn’t put it past him. Already this issue has arisen in a case brought by Mr. Mueller in a United States district court at Washington D.C. To the apparent surprise of the special prosecutor, one of the accused, Concord Management and Consulting, promptly showed up in court, via its American lawyer. It started immediately trying to force the government to show its cards.

So clear is the obligation of the government to do so under constitutional due process that there was talk that America just might drop the case. In the event, the judge restricted the defense, absent court approval, from sharing with foreign nationals government disclosures. What happens, though, if officers of the United States end up being forced to testify in a public trial?

Constitutionally, the prosecution’s final discretion in such matters ought to lie with the President. He would be able to weigh what is more important. Is it the detente with Russia that he had so clearly promised the voters he would explore? Or the prosecution in court of crimes by Russ agents? It’s constitutionally irregular for discretion to be left with a special prosecutor accountable to no one.

It’s not our purpose here to say Mr. Mueller shouldn’t proceed. He is a patriotic American, and we are all for enforcing the law. It is our purpose, though, to underline the fact that discretion in this matter is now in the hands of a person who was not expected to have it by either the authors of the Constitution, the states that ratified it, or the voters who chose the latest president. One of the results is that Mr. Putin’s goons — or lawyers for them — may well get to do just what the New York Post fears, question American citizens.