Archive for May, 2019

The Mueller Report: I read it for you, but you should read it yourself. pt. 2(c)

May 29, 2019
  1. The President’s Reaction to Public Confirmation of the FBI’s Russia Investigation

The second area of concern for the Mueller Report is Trump’s reaction to the FBI investigation of Russia’s efforts to disrupt and control the U.S. elections, including connections between the Trump presidential campaign and Russian intelligence. As discussed in Volume One of the report, there were extensive connections between the Kremlin and Trump Tower, but ultimately the Special Counsel decided he could not establish that there was a conspiracy. There was extensive indirect coordination, and both sides definitely acted in ways that benefitted the other and expected to benefit from the other; but given the apparent lack of concrete payoff for Russia, Mueller decided that there was not a full-blown conspiracy, at least not one he could prove with the evidence he had. But even if there is no “crime,” there can still be an obstruction of attempts to investigate. Mueller discusses efforts by Donald Trump to take control of the investigation, and the reasons he sought to do so. In early March, Trump learned that Sessions was intending to recuse himself from the Russia investigation. Sessions considered this a no-brainer; he was part of the Trump campaign and thus a potential subject of investigation, so for the investigation to have a shred of credibility he had to step away. Furthermore, there were those two meetings he had with the Russian ambassador which he had not disclosed to Congress. Again, Mueller did not find anything nefarious in those meetings, but they had to be investigated and so Sessions had to recuse. This was also the advice he received from the ethics officers at DOJ. Trump by contrast expressed his concern that if Sessions recused himself he’d be unable to protect Trump from investigation, which Trump considered more important than whether the investigation would have any credibility. After the recusal, White House ethics officers stated that the White House should have no further contact with Sessions about this topic; nevertheless, Trump personally continued to press Sessions to unrecuse himself.

By March 20th, FBI Director Comey was authorized to publicly confirm that there was an active investigation of Russia’s interference in our election, but to refuse to comment about any particular persons who might or might not be under investigation. Comey followed these instructions, refusing to tell Congress whether or not Mr. Trump was being investigated. This is said by the report to have made the President’s frustration “worse,” and that’s after previous testimony had described the White House as “in chaos.” Trump is described as being “beside himself,” and began considering by the 21st whether he could fire Comey without a specific cause. The evidence presented is that White House and DOJ officials advised that firing Comey would make things worse, not better, as it would not shorten the investigation and would look suspicious.

Mr. Trump also repeatedly asked other intelligence community officials, such as then CIA Director Pompeo and Director of National Intelligence Dan Coats if they could make public statements that he, Donald Trump, was not under investigation. Both of these men gave testimony that differed substantially from that given by their staff and other witnesses. In particular, the report says that Pompeo was asked to stay behind after a meeting to talk privately with Trump, but he said he had no such recollection. This is significant because, as Mueller stated earlier, a desire to discuss things privately suggests that Trump may have realized that he was suggesting something irregular that had to be concealed from other aides and officials. More significant are the discrepancies in Dan Coats’ testimony; his staff confirmed that he said he’d been asked to contact Comey about the FBI investigation and felt it was an improper order, while he testified Mr. Trump never asked him to speak to Comey. As well as repeatedly complaining to Coats about the investigation, Trump also contacted the NSA Director, Admiral Michael Rogers, and asked him if he could publicly refute the notion that Trump himself was under investigation. This request, witnessed by the Deputy Director as well, was said to be “the most unusual thing” the Deputy Director had experienced in 40 years of government service, and struck both of them as so strange and improper that they immediately drew up a memorandum, signed it together, and put it in a safe. However, Director Rogers said he did not interpret it as an “order” so he did not do anything about it.

On March 30 the President directly contacted Comey and asked him to “lift the cloud” over him concerning the Russia investigation. Comey contacted his immediate supervisor at DOJ, Mr. Boente, about the conversation, asked for guidance, and said he was uncomfortable with the fact that the President was directly contacting him about this. At this time, Trump was not in fact under direct investigation, and his concern was to get that word out. Trump said it was fine to investigate his “satellites” but he wanted the world to know that he himself was not being investigated. So he was not asking anyone to lie, but he was interfering with the investigation by pushing to have information publicly released before the investigation was concluded. Also, a public statement that he was not being investigated could have hindered a future investigation if one became necessary.

  1. Obstructive Act: There is some question in the report whether there was an obstructive act at all. The principle persons involved, Pompeo, Coats, Rogers and apparently even Comey, did not feel that Mr. Trump’s repeated pleas for public statements of his innocence were “directives to improperly interfere with the investigation,” and in fact they often did not carry out those requests because they saw them as foolish or improper requests but not direct orders. But other witnesses testified that at the time Coats at least did feel that he had received just such a directive to improperly interfere, i.e. obstruct the investigation.
  2. Nexus: Since all these actions by the President came as a result of the investigation of Russian interference in our elections, there is a nexus to an official proceeding even though it had not reached the grand jury at that time.
  3. Intent: At this time Trump was not trying to shut down the investigation; he agreed that if “some satellite” of his had been working with Russia “it would be good to find that out.” But it is clear that he had personal reasons for involving himself in the investigation; it was interfering with his desire to develop closer ties to Russia, and he felt that the implication that Russia had helped elect him undermined the greatness of his electoral victory.

Overall, then, this is less clearly a case of obstruction of justice than the Flynn episode seems to be. The nexus to an investigation is clearly established. The intent to intervene for personal and political reasons, rather than simply for the good of the nation and the integrity of the investigation, is a bit less clear but Mueller seems to feel this too is established. In fact, Trump’s repeated efforts to clear his name troubled those he contacted as possibly improper and definitely irregular, and in fact he was advised against these repeated outreaches to Comey and Sessions by his own advisors and legal counsel partly because it would tend to undermine the integrity and credibility of the investigation. The real question is whether there was in fact a real obstructive act. Was Mr. Trump ordering people to interfere in the investigation, or was he merely venting? Was he trying to clear his name because he knew or believed he had done nothing wrong, or was he trying to drag others into a cover-up? Mueller gives more weight to the testimony of Coats and the other officials than to other witnesses, partly because only they were at these private meetings with the President while other witnesses mostly recalled what their bosses said or did immediately afterwards. This might have been ruled mere hearsay in court, though an impeachment hearing might give this testimony a different weight. While a later investigation, either an impeachment or a criminal trial after Mr. Trump leaves office, might wish to look harder at this evidence and try to resolve the discrepancies, the Mueller Report simply presents the sometimes conflicting testimony and leaves it there for the reader’s consideration.

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If you like visual aids, here’s a quick summary of the Mueller report

May 29, 2019

Here’s a chart summarizing the Mueller report.

I haven’t finished my analysis so maybe I’ll quibble with some of these later.  What it shows, and what your own reading of the Special Counsel’s report will show, is that the claims of “no collusion” and “total exoneration” are #FakeNews, to turn a phrase.  In fact, the report is closer to #ImpeachTrumpNow than it is to #WitchHunt.  The short version is “The Special Counsel can’t indict a sitting president; presidents have to be impeached first, and then indicted, so it’s up to Congress to take it from here.”

The Mueller Report: I read it for you, but you should read it yourself. pt. 2(b)

May 23, 2019

In Volume II of the Special Counsel’s report, Mueller describes ten areas that could represent obstruction of justice. In each case, he presents all the evidence he was able to gather, including facts as testified by eyewitnesses or by intelligence sources, as well as areas where he was not able to ascertain the facts because witnesses, including the President* lied, refused to answer or claimed not to remember.   After presenting the history of the events and all the evidence he had available, he offers an analysis as to whether each of the three essential elements for an obstruction of justice case were present: the obstructive act, the nexus to an official investigative proceeding, and the intent. Some of these, on close consideration, he does not seem to consider obstruction. In no case does he come out and say that any is obstruction; as we’ve seen, he had already ruled out any possibility of making that determination himself, since he sees this as the job of Congress. But in some cases, he states that the three essential elements definitely appear to be present, thus leaving the reader with the only logical conclusion that the White House was in fact obstructing justice and continues to do so.

  1. The President’s Conduct Related to the Flynn Investigation

Before Michael Flynn began his work as Trump’s National Security Advisor, he had two phone conferences with the Russian ambassador. Since there is only one President at a time and until January 20th that was Obama, it was improper for him to discuss foreign policy matters. Nevertheless, Flynn discussed the sanctions Obama had imposed on Russia in retaliation for its interference in our election. While lying to the press is not a crime, Flynn lied under oath to the FBI about these calls, which is a crime. These lies occurred while Mr. Trump was President. And because he had committed a crime and Russia knew about it, he was vulnerable to being blackmailed by Russia. This was a serious matter. The President had a private dinner with James Comey, the director of the FBI, and asked for him to swear loyalty to Mr. Trump personally, and shortly thereafter asked him to go easy on Flynn. He also fired Sally Yates, then Acting Attorney General, who initially brought concerns about these lies to White House attention. Despite having been briefed before becoming President about the Russian efforts to subvert our nation’s electoral process, and advice from his own advisors that Flynn had possibly violated U.S. law, it was not until Feb. 13 that Flynn was finally forced to resign, and even then White House efforts continued to cover for him.

  1. Obstructive Act: Comey claimed that Trump privately asked him to “let Flynn go.” Trump disputed Comey’s account, but Mueller points out that there is good evidence that Mr. Trump lied; not only did Comey testify under oath (something Trump has refused to do) but there were independent witnesses that Trump did indeed hustle everyone else out of the room so he could talk privately, which he denied. Was this really an “obstructive act,” or merely Trump expressing the wish that Flynn be spared further humiliation? Mueller argues that it was obstruction. First, Trump arranged to make the statement privately, suggesting that it was intended as a request that he did not want others to overhear. Second, he was Comey’s boss, and when your boss says “I hope you’ll do this,” that is generally a request. His thrice-repeated “let this go” reinforces the view that this was an order.
  2. Nexus to a proceeding: At the time of this clandestine meeting, there were no grand jury subpoenas out as part of the FBI investigation. However, everyone in the White House knew that Flynn had lied, that this was a violation of U.S. law, and that the FBI at least might prosecute. Thus there was a nexus to a possible proceeding, and attempting to head off such a possibility qualifies as obstruction of justice.
  3. Intent: While there was an attempt to get McFarland to falsely claim that she knew President Trump had not directed Flynn to discuss sanctions, there is no evidence that at that moment he actually had directed Flynn to do so. There is therefore no evidence that Trump was trying to cover up any criminal activity of his own. That is significant, since it goes to the question of intent: did Trump intend a cover-up? Did he have a personal stake in Flynn’s fate?

What Mueller did find is that while Trump may not have had a personal legal stake in the Flynn investigation, he did have a personal emotional stake. He considered and still considers any mention of Russian interference to be a challenge to his legitimacy and to the greatness of his achievement. There is evidence that Flynn was fired to try to end the Russia inquiries, that Trump reacted with “annoyance and anger” when the Flynn story broke because he thought it made him look bad, and that when told that firing Flynn would not end things he tried to pressure Comey to wrap things up. Also, while Trump has been publicly supportive of Flynn, privately he has been disappointed and angry and has mostly been motivated to keep Flynn from saying negative things about him. Overall, Mueller shows that Trump’s concerns were personal, rather than motivated by sympathy for Flynn or concern for justice: he didn’t want to look bad and thought that Flynn’s actions cast doubt on Trump himself.

Thus, the Special Counsel finds that all three elements of an obstruction of justice seem to be present:  the obstructive act itself, the official investigation which is being obstructed, and the motive to do so.  To confirm whether this is in fact obstruction of justice, and to punish the violation of law if it is, requires that Congress investigate and hold impeachment hearings; no other remedy is permitted under DOJ guidelines, while impeachment and possible removal is.  After removal from office, the DOJ guidelines forbidding prosecution of a sitting POTUS would no longer apply, and a criminal investigation could proceed.

To be continued….

The Mueller Report: I read it for you, but you should read it yourself. pt. 2(a)

May 22, 2019

Redacted Reactions to the Redacted Mueller Report: I read it so you don’t have to, but you really should; pt. 2(a)

 

First, a traditional prosecution or declination decision entails a binary determination to initiate or decline a prosecution but we determined not to make a traditional prosecutorial judgment.”

——Special Counsel Robert S Mueller III, Report on the Investigation into Russian Interference in the 2016 Presidential Election

 

Volume Two of the Mueller Report deals with the question of obstruction of justice. There are three points that I consider most important to understanding this part of the report. The first is that the Special Counsel began with a decision not to recommend prosecution no matter what. This decision is explained as being based on the Office of Legal Counsel’s standing policy that a sitting President cannot be indicted, because it would undermine his effectiveness. A sitting President can be impeached, which is much harder since it takes 2/3 of the Senate to convict and removed an impeached official. A substantial majority of Senators could believe the person guilty and even a danger to the nation, but so long as 34 vote in favor of the impeached official (whether it be a president, judge or whatever) he or she remains in office. A president can be indicted and tried upon leaving office under OLC guidelines, but not until then; so the president must either be first removed via impeachment or 25th Amendment procedures, or indicted after finishing his elected term of office. So while the Attorney General expressed surprise that Mueller made no recommendation to prosecute, the fact is that Mueller felt he had no choice; his only job was to gather and preserve evidence for possible later prosecution.

Furthermore, Mueller expressed the opinion that even creating a sealed indictment, to be automatically served upon the President’s leaving office, would be unjust. The accused must have the right to clear his (or her) name. Usually that is done through a trial, when the defendant is declared “Not Guilty.” If a President can’t be tried, then the President can’t clear his name; the accusation will hang over him (or her, if we ever get that far) like the Sword of Damocles. The only just way to resolve this situation is through impeachment. With an impeachment hearing, the evidence against the impeached official is presented; and more important for the defendant, the accused can present his/her evidence in defense. Thus an impeached President would have the opportunity to clear his name, by offering a defense at the impeachment hearing and trial.

The refusal to recommend indictment is not, therefore, remotely like claiming that there is nothing indictable. Rather, it is a recognition that, given the laws and rules that authorized the investigation in the first place, a sitting President can’t be indicted as any other person would who did the same things. Impeachment, and/or prosecution after leaving office, are the only options.

In fact, the Special Counsel’s report states several things quite clearly: first, that even if no “collusion” was established, that does not mean there was no evidence that it existed or that such evidence might come to light if certain witnesses cease refusing to testify candidly and truthfully; second, that if the investigation had exonerated the President they would say so, but they are not saying so, so you can draw your own conclusions (or have an impeachment trial to examine the evidence); and third, that there is in fact substantial evidence for obstruction of justice charges against the President.

To be continued….

The Mueller Report: I read it for you, but you should read it yourself. pt. 1

May 16, 2019

Redacted Reactions to the Redacted Mueller Report: I read it so you don’t have to, but you really should. Part One

 

“While this report does not conclude that the President committed a crime, it also does not exonerate him.”

——Special Counsel Robert S Mueller III, Report on the Investigation into Russian Interference in the 2016 Presidential Election

 

https://cdn.cnn.com/cnn/2019/images/04/18/mueller-report-searchable.pdf

Reading the redacted Mueller report is a lot like watching an R-rated movie on television when you were a kid and your parents didn’t let you see the original version in the theater. You can still get a lot of the experience. You know the crimes are pretty bad, the villains are villainous, and somebody just got screwed; but you’re pretty sure you’re not getting the whole experience, and whether it’s for titillation or for actual context that would make the rest more comprehensible, you want that whole experience. In that analogy, the Barr summary is your parent saying, “You don’t need to see that filthy version. Trust me, he says “Yippee-ki-yay Mr. Falcon” in the original too. Really, it’s all pretty boring, and you should just forget about it. And who wants to see a bunch of monkey-loving snakes on a monkey-loving plane anyway? It’s just silly. Just watch the movies I recommend; they’re better and I’ve checked them out to make sure there’s nothing that will confuse you at your young age. Trust me.” And somehow the oft-repeated “Trust me,” and the implication that you can’t handle the truth unless it’s been baby-birded for you by your parental authority figure just makes you want to see the original for yourself even more. So it is with the redacted Mueller report: what’s there is already pretty disturbing, but you sense there’s more that would either make the rest more understandable or reveal the true importance/horror what you’re being shown. And with Barr having gotten the job of reading it for you by first publishing a 16 page essay on how, without even seeing the evidence, he knows Mr. Trump didn’t do anything wrong because he’s the President and presidents can’t and don’t do anything wrong, his reassurances are as convincing as your parent telling you that “The Human Centipede” is a boring movie about bugs.

The first thing I learned from the Mueller report is that the early characterizations of it were misleading at best. It does not, for example, “totally exonerate” the Trump campaign even on the issue of conspiracy to defraud the U.S.A. It generally uses less committal phrases, like “did not substantiate” or “were unable to reach a conclusion.” In fact, there were numerous contacts between the Trump campaign and Russian intelligence and other agencies. The report concluded that little short of an explicit quid pro quo would be likely to win a conviction, and much of the coordination between Russia and the GOP was implicit. That is not to say that there were no crimes; it is only to say that DOJ guidelines led Mueller to only recommend charges if he were sure of a conviction, and that nothing short of a recorded statement between two people saying something like, “Hey, I have a great idea for how we could fix the election and then give you Ukraine in exchange; it’s illegal but let’s do it anyway” would hold up. Trump’s campaign chairman and Russian oligarchs did, for example, discuss dividing Ukraine, but other members of the team were too uninterested to follow up. Kushner and Don Jr. among others did hold a secret meeting with Russian representatives and then lie about it, knowing that the meeting was about Russian efforts to help Mr. Trump win the election; but Mueller concluded that most of the Trump Team were too ignorant to definitely know what they were doing was illegal and too arrogant to ask a lawyer or diplomat whether they should be doing this. To them it was no different than negotiating a real estate deal with Yakuza or Russian Mafia members, which they’ve done for years and saw no reason to stop. Without proof that Jared and Donnie were intelligent enough to know that dealing with a foreign government to get help winning an American election is not only immoral and unpatriotic but also illegal, Mueller didn’t feel he could show criminal intent. But “we couldn’t prove it because Manafort and others blatantly lied,” or “we weren’t sure they knew they were breaking the law even though they lied to hide what they’d done,” or “we determined that it wasn’t worth the trouble to prosecute these crimes because we weren’t sure of getting a conviction” is something less than “total exoneration.”

At the same time, things apparently aren’t quite as bad as I and many others had feared. Yes, the Republican Administration is just as petty, venial, greedy, selfish, deceitful and unpatriotic as we thought; but they’re also disorganized and disloyal and often just plain dumb. They stab each other in the back, or work at cross purposes due to lack of communication and different personal agendas. For example, Erik Prince discussed how he worked to set up a covert back channel between the Trump campaign and Russia, only to have Bannon ignore his reported early success due to disinterest. He either failed to understand how significant this opportunity was, or it didn’t fit into his plans for the coming civil war between liberals and white nationalists; in any case, he wasn’t upset because it was illegal or deceitful or upset at all, but merely bored.

The coordination between Putin and the Trump team was something like a tango; the partners don’t verbally communicate, but respond to each other’s movements to stay in sync. One side would give hints and the other would act on the perceived hints, but rarely were words spoken that could come back in court as evidence. If Trump said he hoped something would happen or his people said they needed something, Russia would provide it without explicitly being asked. But much of this was one-way; Russia was working to provide the Trump campaign with whatever it needed, but when they came back hoping to capitalize on the good will they’d earned they found that no one on the Trump team had a plan of how to help them. They couldn’t even find anyone with the authority to answer their questions except for those, like Bannon, who had their own agendas and were too busy to respond.

Furthermore, by the time Putin’s people came along to try to build bridges to the Trump administration, they found that he was so weakened that he was unable to respond. Mueller repeatedly mentions that some representative of Putin would approach some Trump advisor with plans for Ukraine or Syria or lifting sanctions on some oligarch, only to be told that the Trump team was under too much scrutiny due to its perceived pro-Russian attitude and Putin’s pro-Trump attitude. As Spock says in Star Trek: The Undiscovered Country, “Only Nixon could go to China.” Nixon was well-known as a Red-baiter, hostile to Communists whether they were American, Russian or Chinese. Therefore, when he unexpectedly opened negotiations with the People’s Republic of China, no one seriously thought he was betraying his nation for his own ends. Trump is no Nixon, at least in that sense. He and his family boasted for years about how much business they did with Russia and Russian oligarchs, and everyone knew that the Trump-Kushner Syndicate would make a significant profit if U.S. sanctions were lifted. Trump has borrowed heavily from Russian sources, and pursued deals like the Moscow Trump Tower project which he then lied about to the American people. Thus, he is compromised, an easy target for blackmail or more subtle pressure. And therefore, any time Putin made an effort to reap the rewards of his success (in Moscow they said “Putin won” when Trump won), he was told “we’re too weak now, we can’t be seen as being too friendly to you.”

So those of us who thought of Trump as “Putin’s Puppet” were too worried, according to the Mueller report. The Trump team is too chaotic and incompetent to carry out a decent conspiracy. As one of their surrogates puts it, they can’t even collude with each other, so how could they possibly collude with Russia? Mueller backs up Graham on that assessment. And when they might want to collude, they are too afraid of seeming like Russian stooges to risk doing very much. Mueller describes multiple efforts by Putin to follow up on his success in installing Trump, but concludes that they have foundered not because the Republicans were patriotic or even minimally honest, but simply that they were incapable.

Aside from this, there is little surprising in the first half of the Mueller report: depressing, distressing, but not surprising. Most of it has been reported in the mainstream media, the New York Times, Washington Post, CNN, NBC, BBC, public radio and television, even occasionally on FOX News if you avoid the prime-time pundits and the Dawn of the Sycophants and stick to Shepherd Smith and Chris Wallace and the rest of the “News” division. Mueller’s investigation largely supports the reports of what Trump calls “Fake News,” showing time and again that the facts support the actual news media reports and that, when put under oath and confronted with the facts, even Trump’s employees admit this. By contrast, having sorted through a great deal of evidence, including electronic records, sworn statements from multiple witnesses and so on, the Trump/GOP assertions have been show to be false more often than not. Between the flat-out perjury, the public lies that get quietly retracted when under oath, the half-truths that later get corrected again and still turn out to be misleading, and the assertions based on arrogant ignorance, the Mueller report makes clear that you should not believe anything from Team Trump, whether it comes from the Trump Crime Family, the conservative media echo chamber, or the GOP as a whole. So while Mueller has shown that the GOP Congress and White House are failing to protect American sovereignty and democracy, or even actively working against these as far as they are capable, there is still one pillar of American democracy that the report suggests is doing its job fairly well under the circumstances: the free press.