Posted on 04/19/2019 11:44:55 AM PDT by Ennis85
Really the best day since he got elected, said Kellyanne Conway, the presidents counselor, about a day on which 400 pages dropped into the publics lap describing relentless presidential misconduct and serial engagements between his campaign and a foreign actor. The weeks-long lag between Attorney General William Barrs announcement of Robert Muellers top-line findings and the release of the Mueller report itself created space for an alternate reality in which the document released today might give rise to such a statement. But the cries of vindication do not survive even the most cursory examination of the document itself.
No, Mueller did not find a criminal conspiracy between the Trump campaign and Russia, and no, he did not conclude that President Trump had obstructed justice. But Mueller emphatically did not find that there had been no collusion either. Indeed, he described in page after damning page a dramatic pattern of Russian outreach to figures close to the president, including to Trumps campaign and his business; Mueller described receptivity to this outreach on the part of those figures; he described a positive eagerness on the part of the Trump campaign to benefit from illegal Russian activity and that of its cutouts; he described serial lies about it all. And he described as well a pattern of behavior on the part of the president in his interactions with law enforcement that is simply incompatible with the presidents duty to take care that the laws are faithfully executeda pattern Mueller explicitly declined to conclude did not obstruct justice.
The Mueller report is a document this country will be absorbing for months to come. Below is a first crack at analyzing the features that are most salient to us.
The report answers a great many questions, resolving a raft of concerning issues that had cried out for public resolution. Some of these questions it resolves in Trumps favor, thereby reducing the long list of concerns that reasonable people will harbor about the president. But by creating a rigorous factual record concerning both Russian intervention in 2016 and presidential obstruction of the effort to investigate that intervention, the report poses other questions acutely. Most importantly, it poses the question of whether this conduct is acceptablenot whether its lawful or prosecutable or whether the evidence is admissible, but whether as a nation we choose to accept it, and if not, what means we exercise to reject it. Mueller is not a political figure, but the record he has created puts these fundamentally political questions squarely before us.
Before turning to whats in the Mueller report, lets pause a moment to note something thats not in it: classified information. The document contains no so-called portion marking, which denotes classified material. While it describes sensitive intelligence matters, it does so in an unclassified manner. Whats more, it is almost entirely devoid of discussion of the counterintelligence equities at issue in the Russia matter. This is a prosecutors report, focused entirely on application of fact to criminal laws and to assessment of whether legal standards were met. Whether this absence is because the counterintelligence elements of the investigation were handled in some other format or because they were entirely sublimated to the criminal investigation is unclear. But this is a document summarizing a criminal probe and the thinking of the prosecutors who ran itnot a document describing the management of threats to the country.
Like the report itself, we begin with Muellers resolution of matters related to Russia.
Results of the Russia Investigation
Consistent with the special counsels mandate, the first volume of the Mueller report focuses on the Russian governments efforts to interfere in the 2016 presidential election. Toward this end, its first two substantive sections go into depth on Russias active measures social media campaign, as well as the hacking and dumping operations through which it accessed and disseminated private emails from the Democratic National Committee (DNC) and others. Both provide a fascinating account of Russian influence operations, but neither adds much to the indictments that the Mueller team has previously filed against involved persons. Instead, the important element of Volume 1 is the discussion of Russian government links to and contacts with the Trump campaignor the possibility of what some might describe as collusion.
As the report is careful to explain, collusion is neither a criminal offense nor a legal term of art with a clear definition, despite its frequent use in discussions of the special counsels mandate. Mueller and his team instead examined the relationships between members of the Trump campaign and the Russian government through the far narrower lens of criminal conspiracy. To establish a criminal conspiracy, a prosecutor must show, among other elements, that two or more persons agreed to either violate a federal criminal law or defraud the United States. This meeting of the minds is ultimately the piece the Mueller team felt it could not prove, leading it not to pursue any conspiracy charges against members of the Trump campaign, even as it pursued them against Russian agents.
This conclusion is far from the full vindication that chants of no collusion imply, a fact driven home by the detailed factual record the Mueller report puts forward. In some cases, there was indeed a meeting of the minds between Trump campaign officials and Russia, just not in pursuit of a criminal objective. In others, members of the Trump campaign acted criminallyas evidenced by the guilty pleas and indictments that the Mueller team securedbut did so on their own. At times, these efforts even worked toward the same objective as the Russian government, but on seemingly parallel tracks as opposed to in coordination. None of this amounted to a criminal conspiracy that the Mueller team believed it could prove beyond a reasonable doubt. But the dense network of interactions, missed opportunities, and shared objectives between the Trump campaign and the Russian government remains profoundly disturbing.
This report shows that the Trump campaign was reasonably aware of the Russian efforts, at least on the hacking side. They were aware the Russians sought to help them win. They welcomed that assistance. Instead of warning the American public, they devised a public relations and campaign strategy that sought to capitalize on Russias illicit assistance. In other words, the Russians and the Trump campaign shared a common goal, and each side worked to achieve that goal with basic knowledge of the other sides intention. They just didnt agree to work toward that goal together.
Importantly, the report includes several areas in which the Mueller report really does meaningfully exonerate the Trump campaign.
First, while the report notes that some Trump campaign members shared tweets from Internet Research Agency (IRA)-controlled accounts and even agreed to assist in promoting IRA-devised rallies, the special counsel investigation did not conclude that any official of the Trump campaign was aware the solicitations were coming from foreign persons. Being duped is not the same as committing a crime, and Mueller conclusively puts to rest the question of whether the Trump campaign was somehow aiding the Russian social media operation.
Second, the Mueller report answers lingering questions about a number of previously reported events about which people harbored reasonable suspicions. The Mueller team examined the reported contacts between campaign members, including Jared Kushner and Jeff Sessions, with Sergey Kislyak at the Mayflower Hotel in April 2016 and found that the conversations were brief and nonsubstantive, and took place in public. Similarly, Mueller examined contacts between then-Senator Sessions and Kislyak at Sessionss Senate office in September 2016 and determined that the two did not discuss anything related to the election. That is consistent with Sessionss account of the matter and effectively clears him on the question; nothing untoward seems to have occured.
Additionally, the special counsels office describes a set of interactions between campaign membersin particular, Kushnerand the head of a D.C.-based think tank, the Center for the National Interest (CNI). The investigation found no evidence that CNI facilitated back channels between the campaign and the Russian government.
Finally, the special counsels report puts to rest suggestions that the Republican National Convention platform on Ukraine was altered at the direction of Trump or Russia. While Trump advisor J.D. Gordon did champion an effort on behalf of the campaign to soften a proposed amendment to the Republican Party platform on supporting Ukraine against Russian aggression, the report makes clear that Gordon was not directed to seek the change by Trump. He did so after deciding that the change would better align the platform with Trumps stated policy.
So thats all good news for Trump. Reporting on these matters had accurately described these events as having occurred, but the Mueller report should end speculation that they were evidence of collusion or anything untoward.
The rest of the report is far less rosey for Trump World.
While the report does not find criminal conspiracy between Trump associates and Russia, it describes a set of contacts that may not involve chargeable criminality but might reasonably be described as collusion. In some of these cases, there was a clear meeting of the mindsor an effort to establish onebetween members of the Trump campaign and agents of the Russian government, but the object of that agreement was not a federal crime. If these episodes fall short of a criminal conspiracy, they nonetheless reveal an alarming reality.
The report details numerous contacts during the presidential campaign, some of which are well knownfor example, the cases of George Papadopoulos and Carter Page, two low-level recruits to the Trump campaigns foreign policy team who became the focus of efforts by Russian agents to cultivate a relationship. A higher profile case is that of Trumps former campaign manager, Paul Manafort. The report describes Manaforts extensive ties to Russia in detail, ties he cultivated through his prior work for Russian oligarch Oleg Deripaska and the former Russian-backed government in Ukraine. Throughout his time with the Trump campaignManafort resigned in August 2016 but continued to advise the Trump campaign through at least NovemberManafort maintained consistent contact with his longtime associate Konstantin Kilimnik, a Ukrainian who, according to the report, the FBI assesses to have ties to Russian intelligence. Kilimnik attempted to have Manafort pass along a peace plan for Ukraine that Manafort acknowledged to be friendly to Russian interests, though the Mueller team was unable to identify evidence that Manafort did so. Manafort in turn instructed his deputy Rick Gates to provide Kilimnik with polling data and other information regarding the Trump campaigns electoral strategy, which he understood would be passed on to Deripaska and others.
A particularly troubling example is the protracted negotiation over the Trump Tower Moscow project, in which President Trump was personally involved. In September 2015, the Trump Organization, acting through attorney Michael Cohen, restarted negotiations over a possible Trump Tower project in Moscow that had fallen through several years prior. Trump himself signed a letter of intent for the project in October 2015, on the same day as the third Republican primary debate. One of Cohens interlocutors on the deal, businessman Felix Sater, repeatedly raised the possibility of using the deal to enhance Trumps electoral prospects. In January 2016, Cohen reached out to Russian officials in an attempt to contact Russian President Vladimir Putin and secure support for the project, which ultimately resulted in an invitation for Cohen to visit Moscow to discuss it. Cohen also raised the prospect of Trump himself visiting Russia to discuss the deal, once in late 2015 and again in spring 2016a possibility that Cohen indicated Trump was open to if it would facilitate the deal. Neither trip came together. Cohen ultimately pleaded guilty to lying to Congress about how long into 2016 the Trump Tower Moscow project was negotiated and Trumps personal knowledge of it.
There are other examples too. The Mueller report lays out in detail a sustained effort to obtain a set of emails that figures associated with the campaign believed hackers might have obtained from Hillary Clintons private server before she deleted them. The trouble is that it appears the emails didnt exist. It has previously been reported that now-deceased Trump supporter Peter Smith went to extreme lengths to try and track down Clintons 30,000 deleted emails. According to the Mueller report, after candidate Trump stated in July 2016 that he hoped Russia would find the 30,000 emails, future National Security Adviser Michael Flynn reached out to multiple people to try and obtain those emails. One of the individuals he reached out to was Smith. Smith later circulated a document that claimed his Clinton Email Reconnaissance Initiative was in coordination with the Trump Campaign specifically naming Flynn, Sam Clovis, Steve Bannon and Kellyanne Conway. While the investigation found that Smith communicated with both Flynn and Clovis, it found no evidence that any of the four individuals listed initiated or directed Smiths efforts. So essentially, a bunch of people in Trumps orbit tried very hard to obtain stolen emails but came up empty. Mueller decided that chasing this particular ghost did not constitute criminal conduct.
There are also a series of events for which the special counsels office appeared to have seriously considered the possibility of bringing charges but ultimately determined that not all of the elements were met or that the evidence was otherwise insufficient.
Most seriously, the special counsels office examined possible criminal charges related to the June 9, 2016, Trump Tower meeting in significant depth. The reports account of the meeting between senior representatives of the Trump campaign and Russian attorney Natalya Veselnitskaya and other Russian government-linked individuals largely tracks with widely reported accounts. The meeting was proposed to Donald Trump Jr. in an email from Robert Goldstone, who said that the Crown prosecutor of Russia ... offered to provide the Trump Campaign with some official documents and information that would incriminate Hillary and her dealings with Russia as part of Russia and its governments support for Mr. Trump. Trump Jr. responded that if its what you say I love it and arranged the meeting through a series of emails and telephone calls. Trump Jr., Paul Manafort, and Jared Kushner attended. The meeting lasted approximately 20 minutes and left the campaign officials frustrated because the Russians were not able to offer any concrete information and instead talked about adoptions and the Russian Magnitsky Act. The report indicates that Mueller could not establish that Donald Trump knew in advance about the meeting, and Trumps submitted written answers say he has no recollection of learning of the meeting at the time.
Mueller ultimately concluded there was not sufficient evidence to pursue campaign finance charges against campaign officials regarding the Trump Tower meeting. He cites the governments substantial burden of proof on issues of intent, raising questions about whether the participants knew the activity was illegal at the time, as is required by the statute, and then explores whether Veselnitskayas offer of dirt on Hillary Clinton qualifies as a contribution or donation of money or other thing of value under campaign finance laws. While the report recognizes that opposition research could be considered a thing of value, no judicial decision has considered this issue. Rather than tackle that issue himself, Mueller declined to pursue criminal campaign finance charges.
At least one other section of the report clearly alludes to potential criminal conduct, but it is so redacted (presumably because of the ongoing Roger Stone indictment) that it is hard to say why the activities did not rise to the level of criminality. The report spends more than 20 pages detailing how the Russian intelligence services hacked the Clinton campaign, the DNC and the Democratic Congressional Campaign Committee, and then coordinated with WikiLeaks to release the hacked information in ways that would hurt Clinton and help Trump. The Russian military intelligence agency (the GRU) had initially set up its own websites, including DCLeaks and Guccifer 2.0, but later transferred many of the documents they stole from the DNC and campaign Chairman John Podesta to WikiLeaks [i]n order to expand its interference in the 2016 election. Julian Assange and WikiLeaks implied publicly that Seth Rich, a former DNC staff member who was killed in July 2016, was the source of the material in order to divert suspicion away from the GRU as the source of the material. But the involvement of the Trump campaign in the dissemination of the stolen material is largely redacted. Its clear that Manafort, Gates, Jerome Corsi, Ted Malloch, and at least one other personpresumably Stone, whose name does not appear in the redacted version of the reportwere involved in some way. The document also seems to make an ominous reference to a phone call while Trump and Gates were driving to LaGuardia, after which Trump told Gates that more releases of damaging information would be comingbut the details of the call are redacted. The ongoing case against Stone for lying to Congress about his involvement with WikiLeaks is likely the source for much of the Harm to Ongoing Matter redactions in this section.
Despite the overwhelming number of contacts and ties, Mueller concludes this section by noting that the investigation did not yield evidence sufficient to sustain any charge that any individual affiliated with the Trump Campaign acted as an agent of [the government of Russia] within the meaning of FARA [the Foreign Agents Registration Act].
In light of the hundred pages the redacted Mueller report spends recounting the contacts between Russian government-linked individuals and entities, it is worth taking a moment to recall the frequency and certitude with which President Trump and members of his campaign told the American people that there had been no contact with Russians during the campaign:
-Paul Manafort on ABCs This Week, in response to a question of whether there were any ties between Trump, Manafort, or the campaign and Putin and his regime: No, there are not. Thats absurd. And you know, theres no basis to it.
-Donald Trump Jr. told CNNs Jake Tapper that the Clinton campaigns suggestion that Russia was helping Trump was disgusting and phony, noting, Well, it just goes to show you their exact moral compass. I mean, they will say anything to be able to win this. I mean, this is time and time again, lie after lie.
-Kellyanne Conway, asked whether anyone involved in the Trump campaign had any contact with Russians trying to meddle with the election, responded, Absolutely not. And I discussed that with the president-elect just last night. Those conversations never happened. I hear people saying it like its a fact on television. That is just not only inaccurate and false, but its dangerous.
-Vice President-elect Mike Pence on Fox News Sunday, in response to a question of whether there was there any contact in any way between Trump or his associates and the Kremlin or cutouts: Of course not. Why would there be any contacts between the campaign?
-White House spokeswoman Sarah Huckabee Sanders denied contacts between Russia and the Trump campaign, stating, This is a nonstory because to the best of our knowledge, no contacts took place, so its hard to make a comment on something that never happened.
-Asked at a press conference whether he could say definitively that nobody on his campaign had any contacts with the Russians during the campaign, Trump himself said, No. Nobody that I know of. Nobody I have nothing to do with Russia. To the best of my knowledge no person that I deal with does.
All of these statements were false, and they are only a few of the many examples of campaign officials making such comments.
Those contacts did not end with Trumps election to the presidency. The Mueller report devotes a substantial number of pages to chronicling Russias post-election efforts to make contact with the Trump administration, through both official and unofficial channels.
Some of the contacts are not necessarily untoward. Russias official outreach efforts began at 3:00 am following the election, when a Russian Embassy official reached out to Trump campaign press secretary Hope Hicks with a message of congratulations from Putin. This ultimately led to the first Trump-Putin call just days later, on Nov. 14, 2016. A message of congratulations and a phone call with a foreign head of state arent especially surprising or even necessarily inappropriate.
However, shortly thereafter, Russian Ambassador Sergey Kislyak reached out to Jared Kushner to arrange an additional meeting, which took place on Nov. 30 at Trump Tower in New York. At that meeting, which Michael Flynn also attended, Kushner reportedly requested a good point of contact through which they could directly reach Putin. He also raised the possibility of receiving a briefing from Russian generals through a secure communications line at the Russian Embassy, though Kislyak rejected the idea. Kushner subsequently handed off further meetings with Kislyak to a subordinatebut did take a meeting with Sergey Gorkov, the head of the sanctioned Russian government-owned bank Vnesheconombank (VEB). The report notes conflicting accounts over the purpose of the meeting, with Kushner claiming it was diplomatic while VEB claimed it was related to possible business with the private company of which Kushner was CEO, Kushner Companies.
Flynn, meanwhile, continued to engage with Kislyak. In December 2016, he contacted Kislyak as part of an unsuccessful attempt to persuade Russia to veto a U.N. Security Council resolution calling on Israel to cease settlement activities that the Obama administration refused to oppose. A few days later, Flynnapparently acting on his own initiative, though the report notes that President-elect Trump and others may have been made aware that the call was happeningalso spoke to Kislyak to discourage an escalatory response to the Obama administrations imposition of economic sanctions over Russian election interference, the tack that Putin ultimately pursued. Flynn ultimately pleaded guilty to making false statements to the FBI regarding both interactions, as well as to false statements on a FARA filing regarding his prior work on behalf of Turkey.
At the same time, several self-described Russian oligarchs actively reached out to establish their own contacts with the Trump administration, in part in response to discussions with Putin. Two such oligarchsPetr Aven and Kirill Dmitrievworked through business associates in unsuccessful attempts to arrange a meeting with Kushner, though Dmitriev was able to successfully pass a paper on U.S.-Russian relations to him. Through another associate, George Nader, Dmitriev also made contact with Erik Prince, a financial supporter and close associate of the Trump campaign, though he had no official position. The three met in Seychelles in January 2017, but redactions in the Mueller report leave substantial ambiguity regarding the subject matter of their discussions. Prince claims that he reported on his meeting with Dmitriev to Trump campaign official Steve Bannon, but Bannon disputes thisa discrepancy, the report notes, that investigators were unable to resolve.
In the end, there was clearly criminality here: criminality on the Russian side and criminality on the U.S. side in lying about interactions with Russian actors. And there was also activity that was plainly innocent. Between those two extremes, there was also a large quantity of engagement that was apparently not chargeably criminal but that did involve covert attempts to engage with a hostile foreign government for the benefit of Trumps campaign and business.
Whether one calls it collusion or calls it something else, it isnt pretty.
Findings on Obstruction of Justice
The second volume of the report, focusing on obstruction of justice, begins with an explanation of one of the most confusing aspects of the report: Muellers decision not to make a determination one way or the other as to whether to prosecute or decline to prosecute the president of the United States for obstruction of justice. As Barr indicated, this is a fundamental deviation from the traditional role of the prosecutor. But the opening pages give important context for this choice by the special counsels office.
The introductory section is structured around the Office of Legal Counsel (OLC) guidance against indicting a sitting presidentdespite Barrs suggestion to the contrary at a press conference just prior to the reports release. Muellers analysis focuses on three main points. First, he accepts that the OLC opinion is binding on the special counsels office. He also writes that a federal criminal accusation against a sitting President would place burdens on the Presidents capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct. On this latter point, he cites the OLC opinions reasoning that a criminal prosecution of a sitting president would encroach on Congresss constitutional duty to serve as the check on an unfit executive through impeachment proceedings. In other words, though subtly, Mueller is pretty clearly deferringat least in partto Congress: His office chose not to evaluate whether to bring charges against the president, he suggests, both because indictment of the president while he remains in office is off limits to him and because the decision regarding how to handle such conduct by a sitting president is, in any event, more properly left to the legislature.
At the same time, Mueller notes the OLC opinions conclusion that a criminal investigation of a president during his term is permissible and that the president may be prosecuted after leaving office. The special counsels office thus conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available, the report states, implying that this material will now be in the hands of any future Justice Department should it choose to bring charges against Trump when he leaves office.
Mueller also points to the Justice Manual, which holds that prosecutors should only assess whether a persons conduct constitutes a federal offense: Given that the president cannot be indicted while in office and would not immediately have the opportunity to clear his name through a speedy and public trial, the manual counsels against making that initial assessment.
All this leads to Muellers key conclusion, quoted only in part in Barrs initial letter: if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him. This reasoning makes clear the disconnect between Muellers approach to the obstruction investigation and that of Barr, who independently chose to evaluate the evidence against Trump and determine that it was not sufficient to establish an obstruction offense.
This is not, in short, a circumstance in which Mueller summed up all the evidence for obstruction and all the evidence against it and just couldnt make up his mindor decided to defer to the attorney general for judgment. Muellers decision not to reach a traditional prosecutorial judgment in no sense indicates that the evidence of possible obstruction by the president was weakNo Collusion, No Obstruction, as the president tweeted. To the contrary, the more time one spends with the obstruction section of the report, the more it suggests that the Mueller team believed the evidence of obstruction to be very strong.
The special counsel describes some overarching factual issues and general conclusions that affect his entire obstruction discussion. The report notes that this case is atypical compared to the heartland obstruction-of-justice prosecutions brought by the Department of Justice for several reasons. First, the conduct involved actions by the President and any factual analysis of Trumps conduct would have to take into account both that the Presidents acts were facially lawful and that his position as head of the Executive Branch provides him with unique and powerful means of influencing official proceedings, subordinate officers, and potential witnesses. Second, as discussed in the first half of the report, the evidence does not establish that the President was involved in an underlying crime related to Russian election interference, but does point to a range of other possible personal motives animating the Presidents conduct, including concerns that continued investigation would call into question the legitimacy of his election and potential uncertainty about whether certain events ... could be seen as criminal activity by the President, his campaign, or his family. And third, many of the Presidents acts directed at witnesses, including discouragement of cooperation with the government and suggestions of possible future pardons, occurred in public view. Though its unusual for obstructive acts to be public-facing, if the likely effect of [Trumps] acts is to intimidate witnesses or alter their testimony, the justice systems integrity is equally threatened.
Additionally, the special counsel writes that it is important to view the Presidents pattern of conduct as a whole because it sheds light on the nature of the Presidents acts and the inferences that can be drawn about his intent. The investigation found multiple acts by the President that were capable of exerting undue influence over law enforcement investigations, including the Russian-interference and obstruction investigations, but that were mostly unsuccessful because the persons who surrounded the President declined to carry out orders or accede to his requests. The team viewed the obstruction investigation as looking at two distinct phases: before Trump fired FBI Director James Comey, when Trump deemed it critically important to make public that he was not under investigation; and after he became aware that investigators were conducting an obstruction-of-justice inquiry into his own conduct. During this latter period, Trump launched public attacks on the investigation and individuals involved in it who could possess evidence adverse to the President and, in private, engaged in a series of targeted efforts to control the investigation. In the special counsels view, judgments about the nature of the Presidents motives during each phase would be informed by the totality of the evidence.
The report identifies and analyzes 10 episodes of concern in the obstruction investigation:
1.conduct involving then-FBI Director Comey and Michael Flynn;
2.the presidents reaction to the continuing Russia investigation;
3.the presidents termination of Comey;
4.the appointment of a special counsel and efforts to remove him;
5.efforts to curtail the special counsels investigation;
6.efforts to prevent public disclosure of evidence;
7.further efforts to have the attorney general take control of the investigation;
8.efforts to have White House Counsel Don McGahn deny that the president had ordered him to have the special counsel removed;
9.conduct toward Flynn, Manafort, and a redacted individual (likely Roger Stone);
10. and conduct involving Michael Cohen.
Each episode includes a detailed set of factual findings and then analyzes how the evidence maps onto the criminal charge of obstruction, which requires (1) an obstructive act; (2) a nexus with an official proceeding; and (3) a corrupt intent. We have summarized all of the episodes and Muellers analysis of them under the obstruction statutes here.
For present purposes, the critical point is that in six of these episodes, the special counsels office suggests that all of the elements of obstruction are satisfied: Trumps conduct regarding the investigation into Michael Flynn, his firing of Comey, his efforts to remove Mueller and then to curtail Muellers investigation, his campaign to have Sessions take back control over the investigation and an order he gave to White House Counsel Don McGahn to both lie to the press about Trumps past attempt to fire Mueller and create a false record for our files. In the cases of Comeys firing, Trumps effort to fire Mueller and then push McGahn to lie about it, and Trumps effort to curtail the scope of the investigation, Mueller describes substantial evidence that Trump intended to obstruct justice. Only in one instanceconcerning Trumps effort to prevent the release of emails regarding the Trump Tower meetingdoes the special counsel seem to feel that none of the three elements of the obstruction offense were met. It is not entirely clear how Mueller would apply his overarching factual considerations, discussed above, to the specific cases, but he does seem to be saying that the evidence of obstruction in a number of these incidents is strong.
In addition to spelling out damaging accounts of Trumps conduct in great detail, the report also contains a lengthy section addressing the legal arguments made in his defense. The report describes letters sent by Trumps personal counsel to Muellers team detailing both statutory and constitutional defenses regarding 18 U.S.C. § 1512(c)(2), the general obstruction of justice statute. On the statutory matter, Muellers team responds to the suggestion that the statute should be interpreted narrowly, to cover only acts that would impair the integrity and availability of evidence; Mueller, rather, adheres to the Justice Departments view that § 1512(c)(2) states a broad, independent, and unqualified prohibition on obstruction of justice.
More interesting is the reports constitutional analysis: Pursuant to a separation of powers analysis and contra the presidents lawyers and Barrs own memo on the subject, Mueller takes the view that presidential actions taken under Article II authority can constitute obstructions of justice.
The argument is complex, but it is notable that Mueller emphasizes the role of the presidents obligations under the Take Care Clause as effectively harmonizing the corrupt intent requirement under the obstruction statutes with Article II: the concept of faithful execution connotes the use of power in the interest of the public, not in the office holders personal interest. This suggests that corrupt activities are incompatible with good-faith adherence to the duties of the presidency such that prohibiting them cannot violate Article II. One interesting, if subtle, implication here is that a violation of the obstruction statute by the president thus necessarily violates the Take Care Clausewhich links criminality under the statute to impeachability.
Barr's bad day
The devastating nature of the report makes the performance of the attorney general in characterizing it at his press conference prior to its release a particularly inappropriate spectacle.
Not content to release a document that he hadcontrary to many peoples expectationsnot redacted beyond readability, he characterized it in a fashion that sounded remarkably like the presidents own spin. The bottom line, Barr concluded, in a statement that seemed designed to vindicate the Trump campaigns claims of innocence, After nearly two years of investigation, thousands of subpoenas, and hundreds of warrants and witness interviews, the Special Counsel confirmed that the Russian government sponsored efforts to illegally interfere with the 2016 presidential election but did not find that the Trump campaign or other Americans colluded in those schemes.
Barr had to elide a lot of Muellers actual findings in order to describe them this way. In addressing the Trump campaigns possible involvement in the dissemination of hacked DNC materials through WikiLeaks, the attorney general concluded that the report found that no one associated with the Trump campaign had illegally participated in the dissemination, while noting that doing so would be criminal only if those involved in publishing them also participated in the underlying hacking conspiracy. Similarly, in discussing contacts between the Trump campaign and those connected with the Russian government, Barr observed only that Mueller did not find any conspiracy to violate U.S. law, without characterizing the actual interactions that the investigation uncovered. Instead, Barr focused on the narrow question of whether the Mueller investigation found that there was a criminal conspiracy.
Barr then moved on to whether President Trump had obstructed justice in his removal of former FBI Director James Comey and other interactions with law enforcement. Without elaborating, he noted areas of disagreement with the legal framework that Mueller presented in his report, but claimed that he and Deputy Attorney General Rod Rosenstein nonetheless applied it in concluding that the evidence developed by the Special Counsel is not sufficient to establish that the President committed an obstruction-of-justice offense.
Later, in response to a question, Barr emphasized that Mueller had avoided reaching a conclusion as to whether or not Trump had committed an obstruction crime on the basis of OLCs view that a sitting president was not subject to indictment. Yet its hard to square this account with Muellers own description of his reasoning, which we described above. Barr went on an extended riff on his assessment of Trumps state of mind in evaluating the potential obstructions described in the report, noting that the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks. Suffice it to say these factors loom larger in Barrs assessment of the evidence than they do in Muellers account.
On their face, Barrs remarks were not a neutral recitation of the reports principal conclusions. Instead, by drawing broad conclusions from narrow legal analysis, the attorney general provided the presidents supporters with an abundance of sound bites and talking points for the weeks to come. Trump could not have asked for a friendlier summary of a deeply unfriendly document.
Barr, however, did himself no service, despite having done a reasonable job shepherding the report itself to public release. A great many people will be more skeptical of his future actions as a result of his words.
The Political Reaction
Im having a good day, said Trump in his first remarks following the report. No collusion, no obstruction. Trumps victory lap actually began hours earlier in a series of triumphant tweets. The presidents most ardent congressional defenders have repeated the line.
Senate Republicans have been more muted. Majority Leader Mitch McConnell said he looked forward to reading the documents. Senate intelligence committee Chairman Richard Burr praised Barrs commitment to publicly releasing the report and said he was carefully reviewing the material.
Meanwhile, Democratic Speaker of the House Nancy Pelosi and Senate Minority Leader Chuck Schumer said Muellers report painted a disturbing picture of a president who has been weaving a web of deceit, lies and improper behavior and acting as if the law doesnt apply to him. The majority of their statement, however, was devoted to criticizing Barr, who they allege has misled the public. It is imperative, they said, that the rest of the report and the underlying documents be made available to Congress and that Special Counsel Mueller testify before both chambers as soon as possible.
For his part, House judiciary committee chairman Jerry Nadler agreed that Congress needs access to the unredacted report and underlying evidence. Nadlers reaction to the redacted reports content, however, were unequivocal: Even in its incomplete form, the Mueller report outlines disturbing evidence that President Trump engaged in obstruction of justice and other misconduct. In noting Muellers decision not to exonerate the president, he added, the responsibility now falls to Congress to hold the President accountable for his actions. He said impeachment was one possibility but that it was too early to make that decision.
But impeachment is still a hot potato on Capitol Hill. House Majority Leader Steny Hoyer said, Based on what we have seen to date, impeachment is not worthwhile at this point. He added, there is an election in eighteen months and the American people will make a judgment. (Hoyer later walked back his statement, saying all options ought to remain on the table.)
Political judgment is precisely what the circumstances require. Whether that judgment takes the form of an impeachment inquiry, an election campaign or both is a question with which the political system will wrestle over the coming months. But no longer can the country escape the question of the acceptability of the presidents conduct by saying that it is under investigation, that we will wait until the facts come out or that we wont proceed on the basis of anonymous sources in news stories.
Mueller has put on the record a remarkable litany of opprobrious behaviors by the president and the people around him. He has also determined for a variety of different reasonslegal, factual and prudentialnot to proceed criminally against any more subjects. That leaves the judgment of those behaviors in other hands.
Did President Trump withhold staff from Special Counsel? No.
Did President Trump exert Executive Privilege at any point during Special Counsel's investigation? No.
So the entire case of "obstruction" was based solely on President Trump's Twitter account?
Scott R. Anderson et al of ‘Lawfare Blog’ are attempting to lay out a blueprint to continue the witchhunt.
Guess what? They will be confined to defending the many criminal indictments that are coming.
The Trump side is now shifting to the offense.
Lefty lawyers will be suffering severe mental constipation.
Can’t charge, so we’ll impugn. Barr would have been well within his perogatives to toss the 2nd report straight into the trash for violating DOJ guidelines prohibiting revealing info about a person who is not being charged.
i don’t care. He will not lose my support.
this was written obviously well before Barr’s presser.
The gereral rule is, the more the writers, the more the BS.
I am sure no one wishes to be treated like Trump has been. In essence, accused of his thoughts not his actions.
These guys are going to be in for a real shock, when Trump doesn’t deny saying what he did. He acted like an innocent man. He responded like many of us would.
He was, if we all recall, left alone at the time.
Sessions, his SOC, Ryan and associates, and the Senate were all NOT there for his defense.
It’s amazing he’s still in the office.
This was a real hard boiled take down.
Ha... I just signed up for monthly contributions to President Trump.
"There are other examples too. The Mueller report lays out in detail a sustained effort to obtain a set of emails that figures associated with the campaign believed hackers might have obtained from Hillary Clintons private server before she deleted them. The trouble is that it appears the emails didnt exist. It has previously been reported that now-deceased Trump supporter Peter Smith went to extreme lengths to try and track down Clintons 30,000 deleted emails. According to the Mueller report, after candidate Trump stated in July 2016 that he hoped Russia would find the 30,000 emails, future National Security Adviser Michael Flynn reached out to multiple people to try and obtain those emails. One of the individuals he reached out to was Smith. Smith later circulated a document that claimed his Clinton Email Reconnaissance Initiative was in coordination with the Trump Campaign specifically naming Flynn, Sam Clovis, Steve Bannon and Kellyanne Conway. While the investigation found that Smith communicated with both Flynn and Clovis, it found no evidence that any of the four individuals listed initiated or directed Smiths efforts. So essentially, a bunch of people in Trumps orbit tried very hard to obtain stolen emails but came up empty. Mueller decided that chasing this particular ghost did not constitute criminal conduct."
We know those 30,000 emails and almost 250,000 other emails from Hillarys unauthorized server do indeed exist, found on Huma Abedins husband Anthony Wieners Apple MacBook Pro, in a file folder called "INSURANCE," seized when he was arrested by the New York Police Department for sexual perversity with a minor. That laptop was handed over to the FBI and James Comey In 2016.
"In coordination with the Trump Campaign. . ." simply meant that the campaign was looking for that information and Smith had sent emails to Flynn, Clovis, and Conway saying he too was trying to find them. It doesnt mean he was under their direction or being paid by the campaign. Even if he were being paid to search for them, its not illegal to do so. The article implies that attempting to find the emails was somehow "criminal conduct" even though it failed. It isnt. Even finding and publishing them is not criminal conduct. . . Discovering and publishing evidence of criminal conduct by public officials is NOT criminal, otherwise many news reporters would have been imprisoned over the past two centuries.
For almost 3 years now we have had to listen to adults of normal intelligence pretend that Trump's joke during a public event was something other than what it was. Everybody knew that the emails had been illegally deleted by Hillary Clinton, and that the FBI had the very computer they were supposedly stored on at one point. If Trump had said space aliens instead of Russians we'd have the same people claiming Trump was crazy since he believed in space aliens.
The FBI and DOJ should have been looking for those emails if they weren't corrupted by Hillary and Obama's administration.
Yes, you are most Definitely, concerned.
This is a far left Brookings Institution blog, and yet its posted here, without comment, as if it contains some deep revelations,
This is a smear and twisting of the facts, but a bunch of left wing hacks.
Yet, you are concerned.
"Mueller ultimately concluded there was not sufficient evidence to pursue campaign finance charges against campaign officials regarding the Trump Tower meeting. He cites the governments substantial burden of proof on issues of intent, raising questions about whether the participants knew the activity was illegal at the time, as is required by the statute, and then explores whether Veselnitskayas offer of dirt on Hillary Clinton qualifies as a contribution or donation of money or other thing of value under campaign finance laws. While the report recognizes that opposition research could be considered a thing of value, no judicial decision has considered this issue. Rather than tackle that issue himself, Mueller declined to pursue criminal campaign finance charges.
This is the most ridiculous overreach the article makes. There is no law and no regulation that establishes that information, I.e. "dirt" or "opposition research" is a thing of value equivalent to a "campaign donation" and would be the equivalent of Muellers team legislating or acting as a trier of fact to attempt to make it criminal. Such a fact could come over-the-transom, in an email, from a news source, and listening is free. As stated, there is no legislation, no regulation, no case law. . . and such a suggestion is dicta wishful thinking on the part of some prosecutors (it sounds like Muellers chief assistant DA Andrew Weissmann who has a history of charging people, and even getting convictions, on non-existent crimes, for non-offenses, hes made up out of whole cloth!), made up ad hoc to include. If there is now law, regulation, no offense to even consider, WHAT IN HELL IS THE REASON THEYRE EVEN BRINGING UP THE POSSIBILITY?
This conclusion is far from the full vindication that chants of no collusion imply, a fact driven home by the detailed factual record the Mueller report puts forward. In some cases, there was indeed a meeting of the minds between Trump campaign officials and Russia, just not in pursuit of a criminal objective. In others, members of the Trump campaign acted criminallyas evidenced by the guilty pleas and indictments that the Mueller team securedbut did so on their own. At times, these efforts even worked toward the same objective as the Russian government, but on seemingly parallel tracks as opposed to in coordination. None of this amounted to a criminal conspiracy that the Mueller team believed it could prove beyond a reasonable doubt. But the dense network of interactions, missed opportunities, and shared objectives between the Trump campaign and the Russian government remains profoundly disturbing.
What a joke!
What this article is...
Is the negotiation stage of grief.
Which is Progress!
This article is intended to obfuscate the Mueller report because Mueller addressed the fact that "collusion" was not a crime at all and was most analogous to "conspiracy" which in many penal codes actually was a felony crime. (It actually can be a felony to conspire to commit a misdemeanor.) Muellers report discusses a conspiracy and defines it and actually concludes they could not find such a conspiracy. The authors of this articles, based purely on the summary finding in the report, and make no mistake, ~400 pages extracted from 1.5 million pieces of subpoenaed evidence, ~500 witnesses, and 2 years of investigation is a summary, are claiming to know the facts and and come to a reasoned conclusions], far better than the 19 lawyers, 40 investigators and many others who spent the two years reading the 1.5 million pages, questioning the 500 witnesses to write the 400 or so pages of why they came to their conclusions. . . These authors are truly arrogant and dumb.
As soon as the names of Carter Page and Papadopolis were mentioned as keys to the collusion thread, their credibility flatlined.
I’m supposed to believe, then, that the Russiancommies hated our own Clintoncommie. They desperately wanted Trump.
Right?
RIIIIIIIIIIIIIIIIIIIIIIIIGEEAICHTEEEE???
Not even CLOSE to passing a smell test.
The rest? Unmitigated bullshit.
They are using the train of thought that allows one to question what the meaning of “is” is....gonna get dizzy and sick from all that spinning...also notice they omit an “analysis” of the parts that clearly show collusion among the Dems who engineered this whole fiasco of treason and treachery.
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