Mulling It Over: Nine Choices Robert Mueller Made (And One He Left for Us)

Posted in: Politics

Robert J. Mueller, Report on the Investigation Into Russian Interference in the 2016 Presidential Election (2019)

When Special Counsel Robert Mueller delivered his report on the Trump-Russia affair to Attorney General William Barr on March 22, 2019, he brought an abrupt halt to an investigation that had seemed destined to dog the Trump presidency to the end. Two days later, Barr’s brief summary of the report to Congress lobbed two rounds of heavy ordnance into the anti-Trump camp. First, Barr said, Part I of Mueller’s investigation “did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election.” Second, in Part II, Mueller “did not draw a conclusion – one way or another – as to whether the examined conduct constituted obstruction” of justice by President Trump. Even allowing for some careful framing by Barr, Trump’s critics were flummoxed. His supporters took victory laps, claiming “total exoneration” from a probe that days earlier still seemed a mortal threat.

But the longer the report sat on Barr’s desk, the louder it began to tick. Democrats in Congress demanded release of the full, 448-page document, to judge for themselves. Although Barr may have initially hoped to treat it as a confidential internal memo, he was compelled to promise a redacted version, purged of materials that might compromise ongoing cases, reveal grand jury material or intelligence methods, or harm the personal privacy of persons not charged with crimes. After a notable month’s delay, that’s exactly what he did. Meanwhile, Barr’s gloss—compounded by subsequent press conferences and congressional testimony—had an opportunity to harden into conventional wisdom.

Now that the public can read Mueller’s report – except for the 10% that was redacted—initial conclusions must be reassessed. The accuracy of Barr’s summary is under considerable fire. The Special Counsel himself took the extraordinary step of writing Barr a confidential letter on March 27 objecting that Barr’s summary “did not fully capture the context, nature and substance” of Mueller’s conclusions. He expressed concern that “there is now public confusion about critical aspects of the results of our investigation.” Notwithstanding this letter, which did not become public until April 30, Barr testified to Congress on April 10 that he “did not know” whether Mueller agreed with his summary. Barr may become yet another official drawn and quartered by the imperatives of squaring the interests of Donald Trump against the truth.

Despite Barr’s obfuscations and redactions, the Mueller report reveals quite a bit about the Trump campaign’s entanglements with Russia and the president’s attempts to thwart the investigation. More subtly, it reveals deliberate choices made by the Special Counsel himself. These choices shaped the investigation and its finding, for better and for worse. They help explain why Mueller found what he found, and not more; why he wrote what he wrote, and what he didn’t; and why he identified all the elements of numerous crimes, but left their disposition to others.

1. Keep it Simple, Nothing Flashy

Even by the standard of government documents, the Mueller Report offers a minimalist narrative. It may be about Russia, but this is no War and Peace. Those who have been following the saga closely will find the report stark and compelling, but lacking in colorful details. The austerity even extends to the carefully rationed use of adjectives and adverbs. Whether malevolent or absurd, most of the lively figures in this saga (with the inexorable exception of Trump himself) are sanded down into more or less normal human beings by the report’s leaden style.

Despite the gravity of the subject matter, the reader will find little drama in these pages. There’s no snark or colorful asides, either—just trace amounts of irony in the occasional footnote. The report is an exercise in bureaucratic restraint, wherein lies its weakness as well as its power.

Did it have to be this way? Some government reports aspire to a loftier style. Consider the opening lines of the 9-11 Commission Report:

Tuesday, September 11, 2001, dawned temperate and nearly cloudless in the eastern United States. Millions of men and women readied themselves for work. Some made their way to the Twin Towers, the signature structures of the World Trade Center complex in New York City. Others went to Arlington, Virginia, to the Pentagon. Across the Potomac River, the United States Congress was back in session. At the other end of Pennsylvania Avenue, people began to line up for a White House tour. In Sarasota, Florida, President George W. Bush went for an early morning run.

For those heading to the airport, weather conditions could not have been better for a safe and pleasant journey. Among the travelers were Mohamed Atta and Abdul Aziz al Omari, who arrived at the airport in Portland, Maine.

Somebody on that committee knew something about writing narrative non-fiction. Now compare the beginning of Mueller’s narrative:

The Internet Research Agency (IRA) carried out the earliest Russian interference operations identified by the investigation — a social media campaign designed to provoke and amplify political and social discord in the United States. The IRA was based in St. Petersburg, Russia, and received funding from Russian oligarch Yevgeniy Prigozhin and companies he controlled. Prigozhin is widely reported to have ties to Russian President Vladimir Putin, […REDACTED: ONGOING MATTER….]

Not as catchy, right? Of course, the Mueller team had a narrower mission than the 9-11 Commission. The Special Counsel was not asked to explain how our system allowed a hostile foreign power to intervene in our election, how this impacted the results, or to put it into any kind of larger context or meaning. Others will have to take on those tasks, and we can hope they achieve more memorable results. Mueller was asked to investigate whether crimes were committed. He stuck narrowly to that brief, at the expense of any latent literary aspirations.

2. Stick to the Facts (Even When It Hurts)

Mueller lays down a baseline set of facts and makes some legal calls, but expresses no moral judgments, even where the facts seem to scream for them.

For example, the report thoroughly documents the Russian government’s efforts to influence the 2016 U.S. presidential election, primarily through cybercrime and social media disinformation, as well as the Trump campaign’s eagerness to obtain damaging information about Hillary Clinton from Russia, which seemed to consume the attention of multiple individuals through multiple channels. Mueller describes in some detail the June 9, 2016, Trump Tower meeting in which Trump’s son Donald Trump, Jr., son-in-law Jared Kushner, and campaign manager Paul Manafort all took time away from the heat of a presidential campaign to sit down with Natalia Veselnitskaya, a Russian lawyer with close ties to Putin’s government. Intermediaries had promised Trump Jr. in an email that she would come bearing gifts:

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 and would be very useful to your father. This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump…

Trump Jr. responded: “[I]f it’s what you say I love it especially later in the summer.” When the meeting was finally revealed in July 2017, after a year of denials of any high-level contact between the Trump Campaign and Russia, it seemed like the very smoking gun to blow Trump’s “no collusion” defense out of the water.

Mueller clearly wrestled with the implications of this meeting. But he was unable to frame it in terms of a crime he could prove beyond a reasonable doubt. For one thing, the U.S. participants in the meeting all maintained that Ms. Veselnitskaya’s offered information was disappointing, causing them to lose interest as the discussion then turned to the relatively obscure topic of a Russian ban on U.S. adoptions of Russian children. Mueller indicates uncertainty about whether the information was of sufficient value to constitute a campaign-finance violation, and if so whether the participants would have had sufficient knowledge to make the violation “willful and knowing”. He concludes that that the evidence was “not sufficient to charge [the] incident as a criminal violation.”

And there Mueller stops. Having concluded that he could not prove a crime, Mueller does not allow himself to opine on whether it was appropriate for the top leadership of a U.S. presidential campaign to seek or accept help from a hostile foreign government. He does not ask whether the campaign should not have immediately notified the FBI of Ms. Veselnitskaya’s offer—or whether its failure to do so would them vulnerable to future blackmail. He does not speculate about whether the “adoption” story might not have been conveniently concocted or exaggerated to obscure a closely related topic—the lifting of U.S. sanctions on Russia. Nor does Mueller attempt to connect the dots between this apparently “failed” attempt at collusion with the information Russia later delivered via WikiLeaks to great effect down the home stretch of the campaign.

Shouldn’t the Trump campaign’s willingness (even eagerness) to collaborate with a foreign adversary be cause enough for outrage? Shouldn’t the accumulation of brazen public lies, at some point, overwhelm our capacity for credulity or tolerance?

The report presents innumerable opportunities to express such sentiments—and Mueller passes on each one. If he cannot prove a crime, he stops typing and moves on.

This approach may frustrate many readers. That does not mean, however, that it is ineffective. Simply compiling and proving facts—and eschewing speculation and even well-justified inference—is rendering a service in this “post-truth” age. For anyone still inclined to deny that Russia actively interfered in the election on Trump’s behalf, or that Trump himself encouraged and welcomed those efforts, Mueller’s report provides a mountain of evidence to the contrary, unclouded by editorializing judgments. But Mueller leaves it up to his readers to shout those judgments to themselves.

3. Stay in Your Lane

Mueller kept his investigation well within the scope of his mandate: links or coordination between Russia and the Trump campaign and attempts to cover up that relationship. A complete picture of Trump’s ties to Russia would have to draw the curtain back to at least 1987, when the future president first traveled to Moscow and soon began voicing a Kremlin-friendly view. It would also require examining Trump long-standing obsession with building projects in Russia, his reliance on Russian money to fund his other business projects, and his long campaign to cozy up to Vladimir Putin. But Mueller looked back no further than Trump’s entry into the presidential race in June 2015. Tempting as it may have been to expand the probe to cover fertile topics like the financial practices of the Trump Organization, or the president’s current compliance with the Emoluments Clause, Mueller did not do so.

The investigation nevertheless uncovered evidence of crimes on the edges of Mueller’s jurisdiction. Trump’s hush-money payments to Stormy Daniels (though his attorney Michael Cohen) are so far the most prominent example. Mueller farmed out more than a dozen of these cases to regular Department of Justice prosecutors, rather than seeking to expand his own mandate (notably unlike Ken Starr in the Whitewater/Lewinsky matter). He even handed off cases that were well within his initial grant of authority, such as the prosecution of Roger Stone, who allegedly acted as a kind of liaison between the Trump campaign and WikiLeaks. By scattering them among other federal prosecutors, Mueller may have made it harder to shut down or obstruct so many inquiries. But without the drive and authority of a special counsel, these investigations may languish, especially under William Barr’s rather suspect supervision. Until we know where those cases lead, Mueller’s legacy will be incomplete.

4. Charity Towards All

Mueller gave Trump and other potential targets the benefit of the doubt—on both the facts and the law—wherever possible.

When two people gave materially differing accounts of a meeting, Mueller notes the discrepancy but does not try to sort out which person (if any) is telling the truth, with rare exceptions when documentary evidence supports one side or the other. Where all the participants in a conversation tell the same story, Mueller generally accepts it, even when it seems implausible on its face.

Caught falsely stating under oath that he “did not have communications with Russians,” former Attorney General Jeff Sessions is let off the hook for lying to Congress because he “later explained to the Senate and to the [Special Counsel’s] Office that he understood the question as narrowly calling for disclosure of interactions with Russians that involved the exchange of campaign information, as distinguished from more routine contacts with Russian nationals.” Mueller generously concludes that “[g]iven the context in which the question was asked, that understanding is plausible.” But the question was also asked in the context of a web of false denials of Russian contacts by Trump and persons close to him. Sessions had ample reason to hide the truth—it might have prevented his confirmation. Still, Mueller gives him a mulligan.

Sometimes Mueller’s generosity is jaw-dropping. It may have been plausible to suggest that political newcomers Donald Trump, Jr. and Jared Kushner lacked sufficient familiarity with campaign-finance law to be charged with a “willful and knowing” violation. But Mueller then adds, “while Manafort is experienced with political campaigns, the Office has not developed evidence showing that he had relevant knowledge of these legal issues.” Paul Manafort was Trump’s campaign manager. He had been a lawyer and high-level political operative for 40 years, as well as powerful lobbyist for foreign governments. If a guy like Manafort cannot be held responsible for knowing that foreign political contributions are against the law, we might as well empty all the jails right now.

The Manafort example is astonishing, but perhaps not so consequential—after all, Manafort had already received more jail time than any other target of the investigation. But he was not the only defendant who appears to have been undercharged. Gen. Michael Flynn, Trump’s first National Security Advisor, got off rather lightly by pleading guilty and cooperating with the Special Counsel, even though his cooperation does not seem to have borne much fruit.

Some of the most significant acts of prosecutorial leniency were definitional. In determining whether individuals in the Trump campaign had engaged in a “conspiracy” with Russia, Mueller concluded there would have to be “an agreement—tacit or express—between the Trump Campaign and the Russian government on election interference” for those contacts to constitute a crime. He concludes that the “investigation did not establish” such an agreement—but he never defines what a tacit agreement would look like in contrast to an express one.

In other areas of law (such as antitrust), a tacit agreement can be inferred by things like “signaling” (unilateral public or private acts or statements that invite coordination) or by general discussion followed by acts consistent with an agreement. There was certainly a lot of signaling going on in 2016. Trump loudly pushed a pro-Russia line in foreign policy, while privately pursuing business deals there. He went so far as to publicly call on Russia to search for Hillary Clinton’s “missing” emails. Russia, meanwhile, launched an expensive and risky campaign of computer espionage and social media propaganda on Trump’s behalf, while pushing a “peace plan” through Manafort to serve its interests in Ukraine. While denying against all evidence the truth of Russia’s efforts on his behalf, Trump eagerly pursued business deals and political collaboration with the Kremlin through multiple channels. It’s hard not to suspect that some kind of tacit agreement lies behind these facts.

Mueller may have doubted that he could prove such a momentous accusation with the evidence at hand. He clearly encountered difficulty tying the general impression of conspiratorial behavior to specific individuals and acts that could be charged criminally. Still, his conclusion in the executive summary of Part I that “the evidence was not sufficient to charge that any member of the Trump Campaign conspired with representatives of the Russian government to interfere in the 2016 election” seems to miss the signal in the noise.

5. Hail to the Chief

Mueller and his team showed great courage in standing up to relentless vilification from Trump and his acolytes. At the same time, they demonstrated no small amount of deference to the office of the presidency. They have resolutely refused to leak to the press (a bit of good fortune for Trump that was not shared by Presidents Nixon or Clinton when they were under investigation). Although they had sought a live interview with Trump, they eventually settled for the equivalent of a take-home exam. Trump was allowed to submit written, heavily lawyered answers to a limited set of questions about Russia and none about obstruction of justice.

For those who remember Ken Starr’s team grilling President Bill Clinton under oath about stains on a blue dress, this is a little astonishing. Why didn’t Mueller press harder for Trump (or his family members) to testify under oath? He explains in the report:

Ultimately, while we believed that we had the authority and legal justification to issue a grand jury subpoena to obtain the President’s testimony, we chose not to do so. We made that decision in view of the substantial delay that such an investigative step would likely produce at a late stage in our investigation. We also assessed that based on the significant body of evidence we had already obtained of the President’s actions and his public and private statements describing or explaining those actions, we had sufficient evidence to understand relevant events and to make certain assessments without the President’s testimony.

The second part of Mueller’s answer indicates that he thinks he already had his case (at least on obstruction) and didn’t need Trump’s live testimony to prove it. The first part, however, is a question mark. Why did the potential for delay concern Mueller so much? Wasn’t this a hill worth fighting on? If the Special Counsel lost a subpoena battle, he could still make his case in other ways. But without Trump’s live testimony, the inquiry feels frustratingly incomplete.

6. Conserve Firepower

Mueller’s sense of restraint throughout the report makes his conclusions on obstruction of justice more powerful. Once Part II gets rolling, it becomes increasingly clear that Mueller did not really find obstruction to be a close call on the merits. Even giving Trump the benefit of the doubt, he methodically establishes all the elements to support at least a half-dozen counts of obstruction. In each case, Mueller lays out Trump’s obstructive act, its “nexus to an official proceeding,” and his possible criminal or innocent intent.

The result is devastating. One after another, Mueller plows through scenes both familiar and new: the firing of FBI Director James Comey, the relentless badgering of Sessions, the dangling of pardons and threats against cooperating witnesses, public attempts to influence the Manafort jury, the suborning of false testimony from Michael Cohen and (perhaps most notably) efforts to get White House Counsel Don McGahn to fire the Special Counsel and then to lie about those efforts. Even as Mueller considers Trump’s possible defenses, the hammer blows are relentless. Trump has not only committed obstruction of justice, he has done so on an unprecedented scale and with unmatched brazenness. A fair-minded reader could hardly reach any other conclusion.

7. Punt on Fourth and Inches

Yet Mueller hesitates to push those conclusions to the next step. He considers but dismisses theories that a president cannot obstruct justice when exercising his constitutional powers under Art. II. Still, he accepts the DOJ’s Office of Legal Counsel’s opinion that a president may not be indicted while in office. More obscurely, Mueller chose not to make a clear prosecutorial statement that Trump committed obstruction of justice, because it would be unfair to the president. In a remarkable passage, he writes:

Fairness concerns counseled against potentially reaching that judgment when no charges can be brought. The ordinary means of 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.

This is a nice break for Trump. He can’t be charged with a crime, because lawyers in the Executive Branch believe he can assert temporary immunity from standing trial. Since he can’t clear his name through a speedy trial, it’s not fair to accuse him of a crime. And since you can’t accuse him of a crime, you can only investigate possible crimes and lay out the evidence. But the crimes themselves can (and likely will) thwart the investigation if unpunished.

Each step of Mueller’s analysis is logically defensible, but the result falls short of the ringing j’accuse the outrageous facts seem to call for. If he threw away his shot, it was here.

The public looks to a special counsel for clarity, not casuistry. It cannot be expected to plumb a murky report for legal nuance.

Consider Independent Counsel Lawrence Walsh’s stark conclusion in the Iran-Contra investigation:

The underlying facts of Iran/contra are that, regardless of criminality, President Reagan, the secretary of state, the secretary of defense, and the director of central intelligence and their necessary assistants committed themselves, however reluctantly, to two programs contrary to congressional policy and contrary to national policy. They skirted the law, some of them broke the law, and almost all of them tried to cover up the President’s willful activities.

Or Independent Counsel Kenneth Starr’s summa of the Lewinsky affair:

This Referral presents substantial and credible information that President Clinton criminally obstructed the judicial process, first in a sexual harassment lawsuit in which he was the defendant and then in a grand jury investigation.

Agree with them or not, these reports offered clear conclusions and gave the political system propositions to act on. But the Independent Counsel statute has expired. Mueller was on a shorter leash as a Special Counsel, and it shows in his conclusion:

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, however, we are unable to reach that judgment. The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

So, what is to be done with that? If Mueller could not charge, could not accuse, and could not exonerate, who can? There is plenty to read coded between the lines here, but Mueller missed a chance to deliver a message in the clear.

8. Know When to Walk Away, Know When to Run

Mueller finished his investigation and submitted his report earlier than he needed to. The prosecution of Roger Stone had just begun, and in the meantime, the Special Counsel’s office had plenty of loose ends he could have continued to tug at. Mueller wrapped up his inquiry within two years—by contrast Whitewater took over six years, and Iran-Contra required seven.

Some hints in Barr’s May 1 Senate testimony suggest that the Attorney General may have pressured Mueller to wrap up his inquiry quickly. But assuming that the choice was Mueller’s, why would he do this? Closing the inquiry helps Trump (especially with respect to the “collusion” conclusion)—and removes a check on further attempts to obstruct justice. At the same time, Mueller may have calculated that he needed to get his conclusions on obstruction into the public domain sooner rather than later.

9. Maintain the Silence of the Lambs

Combined with Mueller’s general refusal to leak to the press, Trump’s aggressive PR strategy and Barr’s whitewash might have succeeded in burying the report. While public opinion reacted with skepticism to the initial “total exoneration” claims, it also did not move much in response to the redacted report.

Still, the Special Counsel has shown he is not without a weapon or two in this struggle. Mueller’s March 27 letter to Barr laid a minefield for the Attorney General, which he has navigated with all the grace of a hippopotamus.

By pulling his punches so long, and continuing to play by the book no matter how low the president and his henchmen go, Mueller has preserved maximum credibility. All signs point to his eventual testimony before Congress. Will the Special Counsel take the opportunity to nail a three at the buzzer? Or will he look to pass the ball again?

10. There’s No “I” in “Team”—But There Is One in “Impeachment”

If we do not wish to read the Mueller report as an exoneration of Trump, or as a cop-out, an artful dodge of all the important questions, there is one alternative. As many commentators have argued, it can be read as an impeachment referral in all but name. Mueller was not empowered to deliver a report directly to Congress, but he has gotten most of it there all the same.

The report itself makes no direct reference to impeachment, but it does state that Congress has the power to “protect its own legislative functions against corrupt efforts designed to impede legitimate fact-gathering and lawmaking efforts.” It notes that “protection of the criminal justice system from corrupt acts by any person—including the President—accords with the fundamental principle of our government that ‘[n]o [person] in this country is so high that he is above the law.’” No provision of the Constitution establishes this principle more emphatically than the impeachment clauses.

Mueller has delivered his report in time for Congress to debate and vote on Trump’s fate before the heat of the next presidential election. He has provided enough facts—if not necessarily the clear impetus—to set the process in motion.

But the next move does not belong to Congress alone. For the past two years, much of the public has been “Waiting for Mueller” to tell us what to do. The tendency to defer to the great man and his opaque investigation continued even as evidence piled up in the public domain and Democrats won the House. The habit of deferring conclusions about facts plainly before our faces was well-ingrained long before the Special Counsel filed his report. Whether it was ever possible or not, Mueller clearly declined to play the savior. He left it up to us to save ourselves.

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