The Mueller Report–Volume II

April 29, 2019

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In the first volume of his report, Special Counsel Robert Mueller reported that the investigation failed to establish a conspiracy between the Trump Campaign and Russians hackers, although it did establish that the Russians interfered in the 2016 election in many ways. The second volume finds significantly more evidence that Trump tried to obstruct the investigation itself.

Legal limitations

In reaching any conclusion about obstruction of justice, the Office of Special Counsel was restricted by Department of Justice regulations, which prohibit indicting a sitting president. Not only that, the report refrained from even accusing President Trump of obstruction, arguing that it would be unfair to accuse someone of a crime without indicting them. As Mueller explained:

[W]e determined not to apply an approach that could potentially result in a judgment that the President committed crimes. The threshold step under the Justice Manual standards is to assess whether a person’s conduct “constitutes a federal offense.”…Fairness concerns counseled against potentially reaching that judgment when no charges can be brought. The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor’s judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.

The implication is that no matter how much evidence of crime he found, Mueller was not going to conclude that a crime had been committed! He was only going to put the evidence out there and let someone else draw the appropriate conclusion and take the appropriate action. Given the Department of Justice’s prohibition on accusing or indicting a sitting president, only two possible ways of bringing a president to justice remain: an accusation of “high crimes and misdemeanors” by the House of Representatives, or prosecution by state or federal authorities after he leaves office.

The Trump administration has been quick to declare the case closed because the Mueller report failed to conclude that the President had committed a crime. That is ridiculous, since the investigation was restricted from reaching such a conclusion before it began (although the public was not very aware of that). What it did do was look for but fail to find sufficient evidence of conspiracy, but find ample evidence of obstruction.

Evidence of obstruction

The report summarized the evidence of obstruction this way:

Our 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. The incidents were often carried out through one-on-one meetings in which the President sought to use his official power outside of usual channels. These actions ranged from efforts to remove the Special Counsel and to reverse the effect of the Attorney General’s recusal; to the attempted use of official power to limit the scope of the investigation; to direct and indirect contacts with witnesses with the potential to influence their testimony.

Here are some of the conclusions from the section, “Factual Results of the Obstruction Investigation.”

After Michael Flynn was caught lying to the FBI about his discussion of sanctions with the Russian ambassador, Trump met privately with FBI Director Comey and asked him to let Flynn go. “Evidence does establish that the President connected the Flynn investigation to the FBI’s broader Russian investigation and that he believed…that terminating Flynn would end ‘the whole Russia thing’.” Shortly afterwards, he fired Comey.

When Attorney General Jeff Sessions told the President that a Special Counsel had been appointed (in May of 2017), he was extremely upset. He blamed Sessions for losing control of the investigation by recusing himself, and asked for his resignation. Trump relented and didn’t accept the resignation at that time, but continued to criticize Sessions’ recusal, eventually firing him the following year.

One month after the Special Counsel was appointed, Trump directed White House counsel Don McGahn to tell Deputy Attorney General Rod Rosenstein to fire Mueller. McGahn resisted the order and decided to resign, but was talked into remaining by Reince Priebus and Steve Bannon. Trump later told McGahn to deny that he had been ordered to fire the Special Counsel, but he refused.

Trump also tried to curtail the investigation by asking former campaign chair Corey Lewandowski to convey a message to Attorney General Sessions. “Sessions was being instructed to tell the Special Counsel to end the existing investigation into the President and his campaign, with the Special Counsel being permitted to ‘move forward with investigating election meddling for future elections’.”

When the Trump Tower meeting was made public, the meeting in which Russians offered information on Hillary Clinton in return for assistance in ending sanctions, the President dictated a statement claiming that the meeting had only been about “Russian adoption.”

When former campaign chair Paul Manafort was charged with making false statements and other crimes, Trump did not want him to cooperate with the investigation. “The President and his personal counsel made repeated statements suggesting that pardon was a possibility for Manafort, while also making it clear that the President did not want Manaford to ‘flip’ and cooperate with the government.” Manafort told his co-conspirator Rick Gates, who later told investigators, that “it was stupid to plead, saying that he had been in touch with the President’s counsel and repeating that they should ‘sit tight’ and ‘we’ll be taken care of’.” Trump praised Manafort for refusing to “break”.

The President personal lawyer, Michael Cohen, was only in Trump’s good graces as long as he lied for the President. He lied to Congress about how long Trump continued to pursue his Moscow project while denying it during the campaign, and also about the payment of hush money to the porn star with whom Trump had an affair.  “Before Cohen began to cooperate with the government, the President publicly and privately urged Cohen to stay on message and not ‘flip’. Cohen recalled the President’s personal counsel telling him that he would be protected so long as he did not go ‘rogue’.” After he started cooperating with prosecutors, Trump called him a “rat”, attacked his family, and tried to undermine his credibility.

Issues to be resolved

Three elements have to be present to support a charge of criminal obstruction: “(1) an obstructive act; (2) a nexus between the obstructive act and an official proceeding; and (3) a corrupt intent.”

Knowing what the President intended when he did what he did is especially tricky, considering that he lies so often, and that he refused to answer any of the Special Counsel’s questions on the subject of obstruction.

For example, what was Trump thinking when he fired Comey? Did he really think that Comey was so essential that this would stop the entire Russian investigation? And even if he did want to stop the investigation, was it because he was covering up a conspiracy, or was it just that he was afraid of other embarrassing revelations, such as the Trump Tower Moscow deal that he had lied about?

The Mueller Report did not have to answer all these questions, since it was precluded from accusing the President of a crime anyway, as explained above. But Congress would have to address them if it chose to pursue the matter further. This is as far as the Special Counsel could go:

Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President’s conduct. The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, 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. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

Now President Trump is refusing to allow anyone in his administration to testify to Congress, even in response to a legal subpoena. This applies not only to a possible impeachment hearing but to any oversight committee of the House. Even Richard Nixon never went that far. One can only conclude that the obstruction continues.

 

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Posted by Ed Steffes

The Mueller Report–Volume I

April 26, 2019

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Special Counsel Robert S. Mueller, III. Report on the Investigation into Russian Interference in the 2016 Presidential Election. The Washington Post. New York: Scribner, 2019.

Last week, the Department of Justice released a redacted version of the Mueller report on Russian interference in the 2016 election. The first volume addresses the activities of the Russians themselves and the question of whether the Trump Campaign conspired with them. The second volume addresses the behavior of Donald Trump and the question of whether it constituted obstruction of justice.

The two volumes reach very different conclusions. The first volume says that the evidence is insufficient to establish a conspiracy. The second volume says that substantial evidence exists to support obstruction, but that the Special Counsel cannot indict or even formally accuse the President of obstruction due to legal restrictions. I will address the latter issue in the next post.

Summary of Volume I

The Special Counsel concluded that while the Russians definitely interfered in the election, and while there were links between the Russian government and the Trump Campaign, the investigation could not establish any conspiracy to provide benefits to Russia in return for helping Trump get elected. Both sides expected to benefit, but they didn’t explicitly agree to do so. Here is the report’s summary:

As set forth in detail in this report, the Special Counsel’s investigation established that Russia interfered in the 2016 presidential election principally through two operations. First, a Russian entity carried out a social media campaign that favored presidential candidate Donald J. Trump and disparaged presidential candidate Hillary Clinton. Second, a Russian intelligence service conducted computer-intrusion operations against entities, employees, and volunteers working on the Clinton Campaign and then released stolen documents. The investigation also identified numerous links between the Russian government and the Trump Campaign. Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.

The Special Counsel qualified this conclusion in a couple of ways. The first is the traditional legal point that failing to prove something happened is not the same as proving it didn’t happen. “A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.” The second concerns the lack of cooperation the investigation received from certain key witnesses. “The investigation established that several individuals affiliated with the Trump Campaign lied to the Office [of Special Counsel], and to Congress, about their interactions with Russian-affiliated individuals and related matters. Those lies materially impaired the investigation….”

Coordination or co-branding?

As I thought about the possibility of election interference without a conspiracy, I realized how easy it is to accomplish such a thing in today’s political world. With today’s electronic communications, anyone can participate in an election campaign from a distance, even computer users in another country.

The Citizens United case in 2010 gave us a preview of what could happen, when the Supreme Court made a distinction between directly contributing to a campaign and just communicating positively or negatively about a candidate. The Court said that the latter is just constitutionally protected free speech, no matter how much money a corporation may spend on it. The “speech” at issue in that case was a film critical of–guess who–Hillary Clinton, which was aired just before the 2008 primary elections. The ruling led to the creation of many superpacs whose spending is largely unregulated because they are theoretically independent of the campaigns they support. With such entities hiding behind innocuous names like–well–Citizens United, what’s to stop more sinister organizations from participating too, even if their main objective is spreading disinformation, confusion and conflict?

Another problem is that the rapid pace of technological and cultural change has muddied our political waters and created new opportunities for political branding. For example, the Democratic Party used to be the party of labor, with labor unions as their organizational backbone. With manufacturing on the decline, and ethnic minorities and women on the ascendancy, many working-class voters have become uncertain in their loyalties. Also, politicians who care about the working class haven’t been sure what policies would actually help them. Party loyalty has declined; independent and disaffected voters abound; and opportunities exist for political outsiders to create new brands of politics.

The Trump brand

With voters not knowing what to think, and new media giving a voice to anyone who wants to tell them, a candidate like Donald Trump is well suited to the times. He is a man with no political experience and no consistent party affiliation, but someone very adept at self-branding. In recent years, he has been better at selling his brand name than actually building successful enterprises. By 2009, six of his hotels and casinos had gone bankrupt, and most banks were no longer willing to lend to him. Nevertheless, he continued building his image with the help of his reality TV show. He licensed his name to other developers, structuring the deals so that he made money whether or not the investors did. The Trump Campaign itself may have been a similar kind of operation, intended primarily to enhance the brand even if he lost the election (as many have reported he expected).

Trump’s political appeal rests mainly on a vague promise to “make America great again.” That seems to imply taking the country back to the good old mid-20th-century days when US manufacturing was the envy of the world, and American culture had yet to be transformed by civil rights legislation, 2nd-wave feminism, abortion rights, gay rights, environmental protection, and immigration reform that opened the country to non-European migrants.

His political proposals seem largely fanciful: building a wall between Mexico and the US that Mexico will pay for, dramatically upgrading infrastructure while cutting tax revenue, making great trade deals that will restore American manufacturing, addressing energy needs by relying more on fossil fuels, and replacing Obamacare with better health care at lower cost. Specific plans to accomplish these things rarely materialize, but he does go ahead and tear down what we have, such as environmental protections, laws governing asylum seekers, and the individual mandate in Obamacare, to name a few. Meanwhile, he deals with arguably the most serious crisis of our time–climate change–by declaring it a hoax and withdrawing from the international agreement to do anything about it.

If running for office is mainly a branding exercise divorced from reality, then a propaganda campaign in cyberspace is the perfect tool, whether it is coordinated with the candidate or not. You don’t need a quid-pro-quo; you just need to be on the same page. Flatter the candidate and trash the opposition.

The Russian brand

During the Cold War, the Soviet Union was clearly branded in the minds of most Americans. They were the godless communists, the totalitarian state, the aggressors imposing their system on other countries and threatening America with nuclear weapons.

The fall of the Soviet Union and the arrival of nominal democracy muddied those waters too. But after a short period of detente, along came Putin with his new oligarchy of crony capitalists and his new dreams of political expansion. In particular, Russia’s seizure of Crimea from Ukraine seriously damaged the Russian brand once more.

In the 2016 election, the Russians saw a choice between one candidate who as Secretary of State had been highly critical of Russia, and another who as a businessman had been trying to do business in Russia for a long time. Trump was also an admirer of authoritarian leaders in general and Putin in particular; or at least he was willing to cozy up to him in order to profit from the association. The investigation concluded that Trump continued to pursue a deal to build a Trump Tower in Moscow long into his election campaign, although he denied to the public that he had any connections, deals or prospective deals in Russia. His personal lawyer Michael Cohen also lied about the project to Congress, although the investigation did not establish that Trump had personally asked him to.

The Russians no doubt believed that they could refurbish their own brand by supporting Trump’s. But what did Trump do for them?

Trump’s support for Russia

While the report did not find direct collaboration between the Trump Campaign and Russia, it did find evidence of Trump’s moral support and approval of Russian activities.

Donald Trump Jr., Jared Kushner and Paul Manafort met in Trump Tower with Russians who offered to give them information damaging to Hillary Clinton, and who were seeking relief from Russian sanctions. In that instance, they were disappointed with what was offered and apparently did not pursue the matter further.

The Campaign was much happier with the damaging information obtained by Russian hackers and published through WikiLeaks. But even before that, “the Trump Campaign was planning a press strategy, a communications campaign, and messaging based on the possible release of Clinton emails by WikiLeaks.” Trump was very interested in obtaining emails deleted from Clinton’s private server (which may just have been private messages unrelated to official business). He publicly challenged the Russians to find them (“Russia, if you’re listening…”), and also tasked his subordinates with getting them one way or another. Conspiracy, maybe not, but common purpose, definitely. And some suspicions linger: Donald Trump Jr. was known to be in communication with WikiLeaks, which published some of the stolen data just hours after the Access Hollywood tape surfaced, in which Trump boasted of sexually aggressive behavior.

When the Russian hacking was exposed, Trump covered for the Russians by accepting Putin’s denials and declaring the entire investigation to be a hoax.

The Trump Campaign also gave some support to Russian claims in Ukraine. “During platform committee meetings immediately before the [Republican] Convention, J. D. Gordon, a senior Campaign advisor on policy and national security, diluted a proposed amendment to the Republican Party platform expressing support for providing ‘lethal’ assistance to Ukraine in response to Russian aggression.”

Paul Manafort, who was campaign chairman before his Russian connections were exposed, was a master of political branding worthy of Trump. He had worked for the pro-Russian regime in Ukraine, and also for the Russian oligarch Oleg Deripaska. “Deripaska used Manafort to install friendly political officials in countries where Deripaska had business interests.” Manafort was recommended to Trump by Roger Stone, who was both Trump’s long-time confidante and Manafort’s long-time partner, leaving us to wonder if Trump could have been in the dark about Manafort’s ties to Russia. Both before and after he worked for the campaign, Manafort communicated with his former employee, Konstantin Kilimnik, a Russian believed by the FBI to have ties with Russian intelligence, and for some unknown reason shared campaign polling data with him. Kilimnik was also pushing “a peace plan for Ukraine that Manafort acknowledged to the Special Counsel’s Office was a ‘backdoor’ way for Russia to control part of eastern Ukraine.” Because of Manafort’s evasiveness, the investigation was unable to determine how much the campaign or the President knew about the plan.

“And while Manafort denied that he spoke to members of the Trump Campaign or the new Administration about the peace plan, he lied to the Office and the grand jury about the peace plan and his meetings with Kilimnik, and his unreliability on this subject was among the reasons that the district judge found that he breached his cooperation agreement.

After the Obama administration imposed new sanctions on Russia in response to its election interference, Michael Flynn, who would become Trump’s national security adviser, contacted the Russian ambassador with the knowledge of members of the Trump transition team. He discussed the sanctions and discouraged the Russians from responding in kind.

When “Russian President Vladimir Putin announced that Russia would not take retaliatory measures in response to the sanctions at that time and would instead ‘plan . . . further steps to restore Russian-US relations based on the policies of the Trump Administration,’ …the President-Elect tweeted, ‘Great move on delay (by V. Putin) – I always knew he was very smart!'” Trump said that he had not directed Flynn to discuss sanctions with the ambassador, but then added, “it certainly would have been okay with me if he did. I would have directed him to do it if I thought he wasn’t doing it. I didn’t direct him, but I would have directed him because that’s his job.”

With or without a conspiracy, Donald Trump and Vladimir Putin have a co-branding relationship in which each boosts the image of the other, while tearing down their common enemy, Hillary Clinton. They are like two buddies in cyberspace who “like” each other even if they don’t directly interact. And by the way, when they did interact in Helsinki, Trump took the unprecedented step of meeting in private and keeping their conversations secret.

 

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