Mueller’s Punt: Conclusions from the Mueller Report
By Nathan Richendollar '19
A few weeks ago when Attorney General William Barr released his four-page summary of the Mueller report’s findings, President Trump and his allies claimed an unequivocal victory. According to Barr, Mueller found no evidence of collusion between Trump, or any members of the Trump campaign, and the Russian government. Furthermore, Barr noted that Mueller deferred prosecutorial decision on obstruction of justice to the Justice Department, which found that, because no underlying crime was committed, there would be no charges brought against Donald Trump for obstruction. Last week, AG Barr released a near-complete copy of the 488-page Mueller report, with minor redactions to protect information pertinent to grand juries, ongoing investigation, and persons indirectly linked to the investigation (80-90% of the text is un-redacted). After reading a substantial chunk of this behemoth document, a few things stand out. First, claims that definitive proof of a grand conspiracy between Donald Trump or his campaign and the Russian government were exaggerated, and several of the highest-profile supposed “smoking guns” are dispatched with in short order in the report. Secondly, it appears that Donald Trump is clear from any threat of federal criminal indictment (besides impeachment).
However, Volume II of the report is riddled with difficulties for the president, both politically, and should House Democrats take up impeachment, legally. With little subtlety, Mueller punted the judgment of obstruction to Congress and the American people. While no criminal charges were brought against the president due to the actions described in Volume II for reasons discussed below, they showcase either an ignorance of proper conduct or an obstructive intent on behalf of President Trump. Neither option is particularly flattering, although the former is legally preferable. Further, President Trump’s conduct on several issues is contradictory, sometimes within a 24-hour period.
In Volume I of the report, Mueller’s findings diverge very little from the summary that Attorney General Barr offered weeks prior to the full release. The Special Counsel details the extensive contacts between Trump campaign members and agents of the Russian government or their intermediaries, such as London-based professor Joseph Mifsud. However, the key conclusion from Volume I is succinctly stated on the second page of prose, “The investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.” Thus, Robert Mueller did rip the band-aid off the Democratic dream of a criminal removal of President Trump for conspiring with the Russian government. As Donald Trump tweeted when Barr released his initial summary of the report, Mueller found “no collusion.”
Mueller did find that the Russian government and its agents criminally interfered with the US election, including with fake social media accounts and hacking of US-based computer systems, particularly the DNC. However, the Special Counsel reasons that many of the purported “smoking guns” of much mainstream media hype were inconsequential, or at the very least, not incriminating. Mueller found no evidence that any US nationals directed the Kremlin’s illegal election interference, nor any evidence that any members of the Trump campaign actively conspired with Russia. For instance, the much-vaunted June 9, 2016 “Trump Tower meeting” between Jared Kushner, Donald Trump Jr., and a Russian lawyer claiming to have “incriminating evidence” (presumably on Hillary Clinton’s use of a private email server) lasted but a few minutes, with the Trump campaign representatives calling it a “waste of time,” with no substantive information exchanged. Similarly, Mueller concludes that several meetings between Trump campaign officials, including future Attorney General Jeff Sessions, and Russian Ambassador Kislyak were “brief, public, and non-substantive.” In other words, leaders of two of the world’s most powerful nations were, as one might expect, exchanging pleasantries and passingly discussing foreign relations. One of the most hyped episodes of Trump campaign-Russian contact, it seems, was nothing but normal business. In short, Mueller found that no American nationals, let alone Trump campaign members, directed or helped direct the illegal attacks on the US election system, that meetings between Russians and the campaign, though numerous, do not show sufficient evidence of coordinated effort to warrant charges, and that Trump himself was often unaware of the meetings that his underlings had with Russian contacts.
Paul Manafort, Trump’s campaign director from June to August 2016, perhaps came closest to meeting the legal definition Mueller lays out for what the media referred to as “collusion.” (side note: collusion is a term used more often in anti-trust law to refer to agreement among parties to set prices or restrict competition, while in other realms of criminal law, including the one pertinent to the Mueller investigation, “conspiracy” is the term of art—requiring clear evidence of coordinated efforts by both parties to reach a common goal) Manafort shared internal polling data and specific plans to win blue-collar voters in the Midwestern “blue wall states” with Russian sources during the summer of 2016, although the evidence was insufficient to establish sustained coordination. Manafort lied to the FBI about his contacts, a crime itself, and failed to register for years as a foreign agent despite representing various African warlords and former Ukrainian leader Viktor Yanukovych and is serving time for those unrelated reasons. However, these missteps do not implicate any other campaign member in criminal conspiracy.
However, Volume II, roughly the last 200 pages of the report, is where things get interesting. In deciding whether to bring obstruction of justice charges against the President, the Special Counsel interestingly chose to make his prosecutorial determination under the Office of Legal Counsel’s (OLC) directive that a sitting president cannot be indicted and stand trial while in office. Such an event might unduly hinder his ability to govern the nation during the trial, and as such, it is clear from the outset of Volume II that Mueller was reluctant to bring charges against the President even if he felt they were warranted. He states near the outset of Volume II that to bring charges without letting the President have a chance to clear his name in trial, as an ordinary citizen would, is a serious fairness concern (not to mention the political opprobrium of running for president with unresolved criminal charges). Further, the Special Counsel makes it clear from the start that in obstruction of justice cases, “corrupt intent” is a statutory requirement for conviction. President Trump’s intent in many of the actions Mueller describes are ambiguous, or at least debatable. Instead of litigation through the criminal justice system, Mueller hints in a not-so-subtle reference to the legislature’s impeachment powers, “The conclusion that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of the office accords with our constitutional system of checks and balances and the principle that no person is above the law.” In short, Mueller punted the decision to House Democrats. Given the OLC’s guidance against indicting a sitting president, Mueller knew that Barr would demur on obstruction charges as well. If the actions Mueller details ad nausea throughout the latter half of the report do constitute obstruction, Congress must determine as much through impeachment, or else the American people must determine as much in 2020.
Whether or not one thinks Trump’s attempt to slow down, stop, or misdirect the investigation meet the standard of willful obstruction of justice, they certainly show ignorance of the limits on presidential power, a willingness to lie to the people, and in some cases, belie incoherence. Mueller spends quite a while re-litigating President Trump’s love/hate relationship with former Attorney General Jeff Sessions, who famously recused himself in March of 2016 from the entire matter because of previous ties to the campaign. According to Mueller’s inquiry, President Trump was furious that Jeff Sessions resigned, purportedly saying he needed an Attorney General that would “protect him.” Trump then demanded Sessions’ resignation, but when the AG tendered a resignation letter, the president refused to accept said letter in what must have been a confusing moment to be Jeff Sessions. Instead, Trump kept Sessions on as AG for several months more but asked him several times, including in a personal phone call to Sessions’ residence, to “un-recuse” himself from the Russian interference probe, an action Sessions refused to take.
In another episode of self-contradiction, President Trump said, in the course of the same TV interview on the same day, that he fired former FBI director James Comey both because “this thing with Trump and Russia is a made-up story,” indicating that he felt firing Comey would end the investigation, and that firing Comey, “might even lengthen out the investigation.” Further, it seems that then-candidate Trump lied when he told the American people that he had no ongoing business deals in Russia, unless he has some serious short-term memory problems. According to the report, while candidate Trump addressed incipient concerns of cooperation with Russia by claiming that he had nothing to do with the nation, “From the fall of 2015 to the middle of 2016, Micheal Cohen (Trump’s personal lawyer) spearheaded the Trump organization’s pursuit of a Trump Tower Moscow project, including by reporting on the project’s status to candidate Trump and other executives in the Trump organization” (emphasis mine). These examples of presidential incoherence, deception, and indecision are somewhat alarming, but are not indicative of obstruction of justice. Most presidents lie to the people at some point during their presidencies, and though this does not make the offense any more moral, it does make it less aberrant in American political life.
President Trump probably came closest to crossing the obstruction of justice line in his directive to White House counsel Donald McGhan, in Trump told McGhan to fire Robert Mueller. McGhan refused to carry out the order, and after Trump insisted, again refused. According to Mueller, “he [McGhan] would resign rather than trigger what he regarded as a potential Saturday Night Massacre,” a reference to Nixon’s firing of multiple officials during the Watergate scandal in 1973. After reports of this incident began leaking to the press, Trump pressured McGhan to go to the media and say that the episode had never taken place. McGhan, citing the fact that the reports were true, refused. For what it’s worth, President Trump denies the entire incident, saying that if he wanted to fire Mueller, he would have done so personally. Though firing a lead investigator to end an investigation of oneself certainly seems like obstruction, there is that intent requirement. The president might claim his intentions were not to stop the investigation for personal gain, or that he was unaware of the gravity of his order until McGhan refused the second time, after which he relented.
Beneath all the questionable behavior with regard to the investigation and the possible obstruction of justice, however, one fact shouldn’t escape our grasp. Trump’s best counter-argument against obstruction of justice charges is citing the context of the investigation in early 2017. Presumably, he knew that he was innocent of the basic conspiracy crimes (which is why the investigation started, let us not forget), and seeing the investigation move forward anyway, perceived a Deep State plot to dethrone him. In this context, of course he threw the kitchen sink at Mueller—he tried to have him disqualified on partisan affiliation and perceived bias, to have him directly removed by Donald McGhan, to disparage him preemptively to discredit his findings if Mueller managed to frame him. While somewhat understandable, this standard is not applied to ordinary Americans, however. For example, if I do not have any narcotics in my car but attempt to keep a K-9 search dog from my car by tackling it, I am guilty of, among other things, obstruction of justice, whether I am innocent of the underlying crime (possession of illegal drugs) or not. Similarly, if I restrain someone who will testify against me from entering a courtroom, I am guilty of obstruction even if innocent of the underlying crime. The only hole in these analogies is that one’s intent in tackling and restraining the hypothetical German Shepherd or witness is crystal clear, whereas President Trump might successfully argue that several of his actions (firing Comey, ordering the firing of Mueller but relenting when McGhan refused on legal grounds) were motivated not by corrupt intent to avoid criminal investigation, but by desire to improve the executive branch’s cohesion and performance. Indeed, one of the reasons that Trump cited for firing James Comey, along with the Russia investigation, was Comey’s handling of the Hillary Clinton investigation in 2016.
In the end, the “collusion”-conspiracy theory was thoroughly debunked by Robert Mueller’s impartial analysis. On that critical criminal accusation for which the investigation was designed, for which the American people were whipped into such a frenzy for the better part of two years by a media machine intent on de-legitimizing Trump’s election, he and his campaign staffers have been cleared without equivocation. That finding alone, for all that the nation’s left invested in it and spread it as gospel truth, will undermine half the country’s willingness to trust the media for a whole generation.
Yet Donald Trump did several questionable things during his early presidency that border on obstruction of justice, and regardless of DOJ’s reluctance to indict a sitting president, he could face legal trouble in an impeachment trial should House Democrats pass articles of impeachment. Such a move would be fraught with political peril for Democrats (the Senate would no doubt acquit the President, enabling him to claim victory much like Bill Clinton did), and is thus unlikely with current information. Despite the lack of indictments, however, the patterns of behavior elucidated in the Mueller report are disappointing at minimum. The active efforts to discredit the Special Counsel’s investigation, to stop it, slow it down, obfuscate it, and lie to the American people are below the Oval Office, no matter how we feel about the policies of the occupant. In 2020, Donald Trump would be wise to steer clear of Volume II of the Mueller report and focus on his strengths: no conspiracy charges, economic growth, defeat of ISIS, NATO rebuilding, re-balancing American forces toward Asia-Pacific, and his willingness to confront China. After all, unless the Democrats make another horrible mistake in nominee choice, Trump will be unable to level credible charges of corrupt behavior at his opponent as a defense for his own.