I decided this week that the time had finally come for me to judge myself. Put aside all the pundits -- those whose opinions are shaped only by emotions and not by reason -- and allow the text of The Mueller Report to speak for itself. Several friends asked if I would share my initial observations after finishing the reading, so here goes:Generally: It was a grueling reading of legalese that left my heading hurting, just a bit.
But here are a few of my thoughts after having read the Report (at least in its current redacted form).
Fortunately, this edition I used also contained a number of other items, including Attorney General Barr's letter to Congress. This is where I actually began. I wanted to see how the Attorney General -- typically a consummate professional (even though our politics have always diverged) -- would characterize the Report in summary. That letter struck a bad cord with me. Particularly this line: "In making this determination, we noted that the Special Counsel recognized that 'the evidence does not establish that the President was involved in an underlying crime related to Russian election interference,' and that, while not determinative, the absence of such evidence bears upon the President’s intent with respect to obstruction" (p. 24). That, it seems to me, is the purview of the Congress alone, particularly in the way the Special Counsel powers are established (pp. 13-18).
It's also an unbelievably cynical letter. First, right from the very beginning of the Report, Mueller is quite clear: "A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts". In spite of Mueller's warning, Barr's letter seems to me to appeal to the "absence of evidence" much more strongly than any first year law student would ever do. In logic class as an undergrad, we learned to call Barr's appeal the fallacy of argumentum ad ignorantium. Simply because there's no clear evidence in this Report (more on that in a minute), doesn't mean there's no evidence to be had. An appeal to ignorance is a horrible way to establish factual innocence. (I'm not a lawyer, but I'm married to a smart criminal justice mind, so I know a little bit about criminal law.)
Moreover, Barr's letter takes nearly everything Mueller actually says in the Report out of context.
Because there's a paragraph in Volume II (p. 256) that shocked me to my core. It's a paragraph that's buried in lots of other writing about "The Factual Results of the Obstruction Investigation" (most of Volume II's contents) that is to my mind the most damning of the entire Report. I'm surprised more has not been made of this paragraph by all the pundits:
In addition, the President had a motive to put the FBI's Russia investigation behind him. The evidence does not establish that the termination of Comey was designed to cover up a conspiracy between the Trump Campaign and Russia: As described in Volume I, the evidence uncovered in the investigation did not establish that the President or those close to him were involved in the charged Russian computer-hacking or active-measure conspiracies, or that the President otherwise had an unlawful relationship with any Russian official. But the evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns. Although the President publicly stated during and after the election that he had no connection to Russia, the Trump Organization, through Michael Cohen, was pursuing the proposed Trump Tower Moscow project through June 2016 and candidate Trump was repeatedly briefed on the progress of those efforts. In addition, some witnesses said that Trump was aware that [2 lines redacted for Harm to Ongoing Matter] at a time when public reports stated that Russian intelligence officials were behind the hacks, and that Trump privately sought information about future WikiLeaks releases. More broadly, multiple witnesses described the President's preoccupation with press coverage of the Russia investigation and his persistent concern that it raised questions about the legitimacy of his election.I put two items in that paragraph in bold text for a reason. This paragraph -- "But the evidence ... political concerns" -- is followed just a bit later by another paragraph (pp. 320-321):
Second, many obstruction cases involve the attempted or actual cover-up of an underlying crime. Personal criminal conduct can furnish strong evidence that the individual had an improper obstructive purpose, see, e.g., United States v. Willoughby, 860 F.2d 15, 24 (2d Cir. 1988), or that he contemplated an effect on an official proceeding, see, e.g., United States v. Binday, 804 F.3d 558, 591 (2d Cir. 2015). But proof of such a crime is not an element of an obstruction offense. See United States v. Greer, 872 F.3d 790, 798 (6th Cir. 2017) (stating, in applying the obstruction sentencing guideline, that "obstruction of a criminal investigation is punishable even if the prosecution is ultimately unsuccessful or even if the investigation ultimately reveals no underlying crime"). Obstruction of justice can be motivated by a desire to protect non-criminal personal interests, to protect against investigations where underlying criminal liability falls into a gray area, or to avoid personal embarrassment. The injury to the integrity of the justice system is the same regardless of whether a person committed an underlying wrong. In this investigation, the evidence does not establish that the President was involved in an underlying crime related to Russian election interference. But the evidence does point to a range of other possible personal motives animating the President's conduct. These include concerns that continued investigation would call into question the legitimacy of his election and potential uncertainty about whether certain events-such as advance notice of WikiLeaks's release of hacked information or the June 9, 2016 meeting between senior campaign officials and Russians could be seen as criminal activity by the President, his campaign, or his family.Taken together, these statements indicate to me that Mueller suggests that Trump quite probably understood some of his actions involved in the Wikileaks case to be a crime. And that Mr Trump additionally would have regarded the June 9, 2016, meeting to be a crime.
Those two paragraphs stand out more than anything else in the Report. The Report is unable to establish any factual element of election corruption between the Trump Campaign and the Russian government. Factually, there is no interaction between the Campaign and the Russian agents who have been charged with a crime. But that doesn't mean Mr Trump did not commit another crime. And Mr Mueller certainly, I believe, makes a strong case that additional investigations are necessary in order to determine the factual elements of those potential crimes.
The Wikileaks episode seems to me to be far more damning than anything else in this Report. Mueller covers that episode on Volume I (pp. 75-82, with evaluative comments on pp. 176-186). Thing is, aside from a footnote explaining why they didn't charge WikiLeaks for trafficking in stolen property, it's entirely redacted. Yup, redacted because of "Harm to Ongoing Matter". I'm sure the ongoing litigation with Stone is what drives that "ongoing matter" redaction, but I also wonder if there aren't some First Amendment issues here, too.
The reason Mueller indicates that he did not charge on the June 9, 2016, meeting is because he lacked admissible evidence that Donald Trump Jr and the others knew taking the meeting and the offered dirt was illegal (which raises questions about whether they have hearsay or some other inadmissible evidence suggesting they did), and because they had a hard time placing a value on the information offered. To quote Mr Mueller's Report (p. 167):
The Office considered whether to charge Trump Campaign officials with crimes in connection with the June 9 meeting described in Volume I, Section IV.A.5, supra. The Office concluded that, in light of the government's substantial burden of proof on issues of intent ('knowing' and 'willful'), and the difficulty of establishing the value of the offered information, criminal charges would not meet the Justice Manual standard that 'the admissible evidence will probably be sufficient to obtain and sustain a conviction.' Justice Manual§ 9-27.What all this says to me about the Report:
- Mr. Mueller does not say a crime was not committed. Rather, it said that under Justice Manual guidelines, Mueller's team should not prosecute the case because they were unlikely to get and sustain a conviction. The analysis suggests there was a crime, but not one Mueller would win conviction on at trial. That is different from Mr Barr's contention that the Report exhonorates the President and certainly falls short of Mr Trump's characterizations of the Report.
- Mr Barr insists in his Letter that the President couldn't obstruct justice because no crime had been committed. That, it seems to me, is entirely inconsistent with Mr Mueller's conclusions.
- But: We already know that the Southern District of New York considers Mr Trump's payments to Mr Cohen to constitute a crime (pp. 305-319). And in that case, it's far harder for Mr Trump to claim he didn't know it was a crime for corporations to donate to presidential campaigns, because FEC investigated him and Cohen for it in 2011.
- Mueller treats the question of whether Trump obstructed Cohen's testimony in its own section (cited above), separate from his pressure on Mike Flynn, Paul Manafort and Roger Stone not to cooperate. After laying out Jay Sekulow's role in suborning Cohen's false testimony on the Moscow Trump Tower deal, Mueller actually mentions the hush payments as part of the obstruction consideration: "In January 2018, the media reported that Cohen had arranged a $130,000 payment during the campaign to prevent a woman from publicly discussing an alleged sexual encounter she had with the President before he ran for office. This Office did not investigate Cohen's campaign period payments to women. However, those events, as described here, are potentially relevant to the President's and his personal counsel's interactions with Cohen as a witness who later began to cooperate with the government" (p. 309).
- Mr Mueller factually shows that Mr Cohen knowingly released false statements covering up the President's actions, with the President's counsel and approval. It even describes the elaborate means for ensuring that Mr Cohen understood "he'd be taken care of" if he didn't tow the party line: "Cohen also recalled speaking with the President's personal counsel about pardons after the searches of his home and office had occurred, at a time when the media had reported that pardon discussions were occurring at the White House. Cohen told the President’s personal counsel he had been a loyal lawyer and servant, and he said that after the searches he was in an uncomfortable position and wanted to know what was in it for him. According to Cohen, the President's personal counsel responded that Cohen should stay on message, that the investigation was a witch hunt, and that everything would be fine. Cohen understood based on this conversation and previous conversations about pardons with the President’s personal counsel that as long as he stayed on message, he would be taken care of by the President, either through a pardon or through the investigation being shut down" (p. 311).
- The Report then goes on to describe what happened when Mr Cohen began to cooperate with the government and offer testimony against Mr Trump (p. 312). Even though Mr Mueller didn't prosecute on these issues, he believes there is sufficient evidence available that a more thorough investigation might uncover.
- I think any clear and nonpartisan reading of the Report renders Mr Barr's conclusions logically absurd. The Southern District of New York has already indicated the President is an unindicted co-conspirator. With more investigation, Congress "would" (that's Mr Mueller's word, not mine) be able to establish crimes committed by the President. Mr Barr's attempt to claim that the President has not committed a crime depends on the Justice Department having found him innocent. Which, to my mind, is a seriously early foregone conclusion.
- In short: Mr Mueller's Report is the grounds of which a thorough investigation must grow -- and one that only the Congress can conduct and prosecute -- should it go that far.