My rating: 4 of 5 stars
[This section was originally published on 5/19/2019] Conspiracy, bribery, Russian propaganda, hacking/stealing emails, lying, and obstructing justice. This, in a nutshell, is what the investigation of Trump and the people who helped elect him was about. Mueller and his team took two years to reach conclusions on the evidence that our current president and his campaign committed crimes. Upfront, Mueller says he was not looking at possible crimes based on the term “collusion.” Rather, his team applied the “framework of conspiracy law, not the concept of “collusion.” So for Trump to bray for two years that there was “no collusion” with the Russians, was misdirection — and the media did very little to correct what was being investigated. Given the standards to establish evidence to charge individuals with conspiracy, Mueller’s team did not find enough evidence to meet the legal standard of a conspiracy between the Russians and the Trump campaign in Volume I of his report. Why? Many Trump associates lied to the FBI, invoked their Fifth Amendment rights against self-incrimination, “deleted relevant communications,” or used encrypted apps that “do not provide for long-term retention of data or communication records.”
In short, there was a mostly successful cover-up of the conspiracy crimes.
The second volume is more complex because Mueller focused on obstruction of justice. Looking at the evidence, Mueller had to find three elements present to charge Trump with obstruction:
1. The obstructive act
2. A nexus/connection between the obstructive act and an official proceeding (i.e., grand jury or a trial)
3. A corrupt intent
But, Mueller faced a roadblock in charging Trump with obstruction: The Office of Legal Counsel’s guidelines against “the indictment or criminal prosecution of a sitting President.” So, while his team couldn’t make a “traditional prosecutorial judgment” in the obstruction charges, Congress most certainly can.
Mueller comes to this conclusion by a thorough examination of the constitutional powers of both Congress and the President — and their limits. He provides Congress with plenty of legal precedents to show they are well within their Article I powers in taking action against Trump for acting in a corrupt manner regarding witness tampering, bribery, violations of tax laws, abusing the power of the pardon, and even the firing of so-called “inferior officers” (i.e., those not directly appointed by the president).
Now that Trump is obstructing Congress from doing its constitutional requirements in providing oversight of the Executive Branch, investigating abuses, and proposing legislation to address violations of the tax code, it’s clear Trump, his family, and associates are running out the clock on the statute of limitations on those crimes by building a big wall lawsuits to tie it up in the court system — forcing Congress to either start the impeachment process, or do nothing.
With reports like this, there is often a lot for a reader to wade through — and The Mueller Report is no exception. The details of possible acts of conspiracy among the cast of Trump associates have been in the press virtually non-stop from the news that Michael Flynn was fired for lying about Russian contacts, to Roger Stone conspiring with Russian agents via Twitter to time the release of hacked emails. But with this report, readers get an exhaustive list of possible crimes with a dispassionate tone that sometimes masks the horror of it all. It can be a lot for a general reader to absorb (especially Volume II, where Mueller’s team detail many acts of obstruction). However, the authors of this report have created summaries of both volumes so general readers can understand what they were tasked to do, the methods they used to gather evidence, and how they reached their conclusions.
It’s those conclusions that are bound to disappoint readers. For those who have been following this story for over two years, watched it play out in real time and have perhaps heard opinion makers, well, opine on the innocence or guilt of Trump and his motley crew of collaborators, Mueller refusing to make a definitive judgment on his investigation (even if he was unable to indict a sitting president) was frustrating. It allowed the newly appointed Attorney General William Barr to jump into the vagaries of Mueller’s conclusions and render a judgment in favor of the president. Or as Barr wrote in his four-page summary of a report that’s almost 500 pages long: “Deputy Attorney General Rod Rosenstein and I concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.”
However, Barr rushed to judgment on a report that he clearly did not read in its entirety. Mueller’s reasoning and recommendations in the concluding pages of his report show a careful reading of constitutional powers through legal precedent — and that’s why it can be difficult to understand what he’s recommending. There are two lines of argumentation Mueller is pursuing in the concluding section: one is a refutation of Bill Barr’s 2018 memo on obstruction he wrote about § 1512(c)(2) of the U.S. Code where Barr basically makes the case that Article II powers of the president make it impossible for a president to commit crimes or be charged with crimes because, well, he’s the president. That’s a simple reading, but that’s pretty much what Barr is arguing. It’s called the “unitary executive theory” of constitutional law, and it’s a very fancy way of saying a president is like a king who is imbued with divine rights of a sort — instead of a democratically elected president whose actions are not above the law.
The second part is something I wrote about earlier: Mueller is showing Congress how they can act to address corrupt actions by Trump. If there’s a flaw to this part of the report, it’s that it requires careful reading because he’s dealing with laws, not individual actions. And since our system of government is based on laws (and not the whims of individuals with power), he’s addressing a specific audience: the lawmakers. So, if you read this report (and I hope you do), general readers may struggle with the last section, but keep at it! It’s important to know how corruption and obstruction should be dealt with in a nation of laws.
[Update on 5/29/2019]: Robert Mueller addressed the press this morning to clarify his report — and he exhibited the same careful, sober, and at times, complex reasoning that’s reflected in Volume I & II in his book. Given all the roadblocks and prohibitions Mueller either faced or agreed to (i.e., a prohibition like the OLC’s view that a sitting president cannot be indicted), the big takeaway from Mueller’s statement was this: Could (or did) he and his team clear Trump from obstruction of justice charges? No. Not by a long shot. They couldn’t charge him with obstruction, but through impeachment proceedings, The House of Representatives could make multiple charges of obstruction, abuse of power, and other charges that fall under “High Crimes and Misdemeanors.” Now, presenting those charges to the Senate for a full vote on the president’s removal from office would be extremely difficult considering how many Republicans it would take for Trump to be removed from office. However, it would put Republicans on record on why they oppose removal. Also, there’s the reality that as the evidence is being presented by the House, it could affect the opinions of Republicans in the Senate — kind of like what happened during the Watergate hearings when Richard Nixon was president.
It’s difficult to know what Trump’s final plays will be if impeachment proceedings start. He could stay put and see if public opinion favors him as we head into the 2020 election. He could resign, appoint Pence as president, and get a pardon for himself and his family members. Or he could find some way to avoid both federal and state legal jeopardy through some kind of deal with legislators in D.C. and New York. I’m sure Trump’s lawyers have gamed out various exit strategies, but it remains to be seen if any of these are even needed considering how slow and meandering Democrats in the House have been. One of the biggest ironies in the aftermath of Mueller’s report is that it took Tea Party Republican Justin Amash to lay out the clear case for impeachment — and he did it in a series of tweets. The Democratic leadership? Well, to date, Speaker Nancy Pelosi has said this: “The Congress will continue to investigate and legislate to protect our elections and secure our democracy. The American people must have the truth. We call upon the Senate to pass H.R. 1, the For The People Act, to protect our election systems.”
[Update on 7/24/2019] Today was Robert Mueller’s day to testify in front of Congress — well, in front of two House committees. It seems the press and some public commentators were not impressed with Mueller’s, um, performance. We know that most members of Congress have not read Mueller’s report on Russian interference in the 2016 election, and the Trump’s campaign to conspire with a foreign government. Part of that is because Mueller’s conclusions weren’t, well, conclusive. He did not supoena Trump to be interviewed because as many of the president’s lawyers said if he did talk to Mueller’s investigators, he’d be caught in “a perjury trap.” Well, it’s not a trap unless you’re a liar — which Trump has proven to be over and over in his public and private life. Being constrained by OLC guidelines on inditing a sitting president for obstruction crimes (or really any crimes) made many watching this two year investigation wonder, “What’s the point of this?”
Congress has neither the will nor the votes to impeach and remove Trump from office for High Crimes and Misdemeanors — even though his actions before and after the campaign most certainly rise to the level of both political actions. The legal standard to remove a president from office by Congress has a lower bar than “beyond a reasonable doubt,” so while Mueller was constrained by certain conventions and his understanding of constitutional law, Congress is explicity authorized by The Constitution to act as judge and jury when it comes to presidential misconduct. That means actions Congress defines as being corrupt to the health of our democratic republic through, say, the failure of a president faithfully execute the office and preserve, protect, and defend the U.S. Contitution is reason enough to impeach and vote to remove from office. Did Trump’s actions as a presidential candidate and as president rise to impeachable levels? If you read this report, yes. Yes, you will see example after example or corrupt behavior, conspiracy with foreign governments, lying to the American public, and obstruction of justice. But hardly anyone has read this report, nor will they. Both political parties know this, and one party (i.e., the GOP) seems to be counting on two things: 1. Public confusion over Mueller’s conclusions — aided by Trump’s constant mantra of “No collusion” said whenever he speaks or tweets. 2. Reframing the narrative so people don’t care about the corrupt actions of a president, but do care about the way in which the investigation is a deep state coup — among other conpiratorial thinking.
While Mueller looked old, sometimes confused by questions, and prone to one word answers, he did make clear a few things in an unambiguous way:
- Mueller did not exonerate Trump.
- Trump can be charged with obstruction and other crimes after leaving office.
- Russia is currently engaged in propaganda efforts to undermine our democracy.
- A political campaign’s willingness to accept help from Russia or other foreign government is the “new normal.”
- And there are many investigations into Trump and his campaign associates that are ongoing.
Mueller is a messenger — not a political savior. He was tasked with investigating, charging (or not charging) individuals who committed crimes related to Russian manipulation of the 2016 presidential election and individuals who willingly or tacitcly participated in that scheme. And while Mueller didn’t find that those actions rose to the legal definition of conpiracy, it came pretty damn close. Indeed, if it weren’t for the cover-up by Trump’s minions (i.e., using encrypted texts or destroying other communications), Mueller’s team would have found evidence of conspiracy. So, except for those who were found guilty of crimes that were revealed during the course of the investigation, it looks like Trump has gotten away with criminal acts — and will be immune from any kind of punishment as long as he’s president and until the statute of limitation runs out on charging him for crimes. Even if Trump loses the 2020 election, he could pull one last trick out of his hat: resign, appoint Pence as president, get a full pardon, and run away to Mar-a-Lago to bitch and moan about how unfair life is. To me, that’s his last ploy — and the press and the public will be left scratching their heads wondering if it was all a bad dream.
