Posts Tagged ‘Robert Mueller’

The Mueller Report: I read it for you, but you should read it for yourself. pt. 8

July 10, 2019

 

The President Orders McGahn to Deny that the President Tried to Fire the Special Counsel

            Mr. Trump apparently obstructed justice to cover up an attempted obstruction of justice meant to hide his earlier obstruction of justice.

            As we saw in Volume One of the Special Counsel’s report, there were many contacts between official and unofficial agents of the Russian government as part of Russia’s efforts to hurt Hillary Clinton and to help elect Donald Trump.  Sometimes the Trump campaign personnel might have been unaware or uncertain as to who was ultimately pulling the strings, such as when Roger Stone colluded with WikiLeaks without necessarily knowing for certain that their source Gruciffer 2.0 was in fact Russian military intelligence.  Other times, such as Donald Trump Jr.’s meeting at the Trump Tower, they definitely did know they were working with the Russian government to affect the outcome of elections in the United States, and eagerly cooperated.  During the campaign some of these efforts came to the knowledge of the U.S. intelligence community, but GOP leaders such as Sen. McConnell worked to cover them up.  After the election, counterintelligence and criminal investigations continued, eventually leading to a number of indictments, arrests and convictions, with fines exceeding the costs of the investigations themselves according to official figures cited by the White House.  Among these was the investigation and conviction of Michael Flynn for lying to the FBI under oath.  Mr. Trump’s attempts to interfere with this investigation became the first possible obstruction of justice incident discussed in Volume Two of the Mueller report.  Trump’s involving himself in that investigation led to questions of his own complicity, and his efforts to squash those questions involved him in more potential acts of obstruction of justice, and ultimately compelled the appointment of a Special Counsel.  This in turn led to still more acts of potential obstruction, including his efforts to fire Special Counsel Mueller, efforts that were thwarted primarily by the fact that those around Trump refused to follow his instructions.

            In late January 2018, The New York Times reported that Mr. Trump had ordered Don McGahn to fire Robert Mueller based on bogus allegations of conflict of interest, and that McGahn had threatened to resign rather than carry this order out.  The Washington Post later corrected that story, reporting that McGahn had not in fact told Trump he would resign rather than carry out his instructions.   In response to these reports, Trump ordered McGahn to publicly deny that he had ever attempted to have Mueller fired, and that the entire story was “fake news.”  He also instructed that McGahn should write out a memo stating that Trump had never ordered Mueller be fired, so the White House would have the statement for their records.  As we have seen, the Mueller report concluded, based on multiple eyewitness accounts given under oath, that something like the Post report was true:  Trump did demand that Mueller be removed and McGahn had refused to carry though on those instructions.  He had not threatened to resign, however, so the Times version was wrong on that point alone; he had discussed resigning with others and had been talked out of it, and in the end Trump had given up on his efforts to fire Mueller.  McGahn therefore said that he would not dispute the press reports since they were mostly accurate.  Trump repeatedly insisted that he had never said Mueller should be fired, largely disputing whether he had used the word “fired.”  McGahn countered that his memory was that regardless of the exact words, the order itself was as reported, that “Mueller has to go;” and furthermore, he had taken notes of the conversations to help his memory.  Trump demanded to know why McGahn took notes; McGahn replied that he was “a real lawyer” and real lawyers take notes of important meetings and conversations.  Trump sent intermediaries to McGahn to tell him he’d be fired if he didn’t make a public statement disputing the Times and Post reports; he replied that the President* wouldn’t dare fire him because the optics would be terrible.  McGahn also said that he thought Trump was “testing his mettle” by repeatedly challenging his memory of their conversations, since it was so obvious that he was certain and would not change his mind.

            In analyzing this episode, the Special Counsel considered the following elements:

1.     Obstructive Act:  The report specifically examines the repeated efforts to not only get McGahn to deny the New York Times story, but to create a written record denying the account which the White House could keep, in Mr. Trump’s words, “for our records.”  Did Trump genuinely and simply have a different recollection of events?  Or was his continual effort to get McGahn to create a record different from what he had told the FBI part of an effort to create a false story which could be used to undermine McGahn if he testified truthfully about these events?  While the report states, “There is some evidence that….the President believed the stories were wrong and that he had never told McGahn to have Rosentein remove the Special Counsel,” it continues, “Other evidence cuts against that understanding of the President’s conduct.”  This latter evidence includes McGahn’s behavior at the time, which is consistent with his having been given instructions to have Mueller fired and resisting those orders, as well as the repeated efforts by Trump to have others push for Mueller’s removal for what they themselves regarded as “silly” and insubstantial reasons.  Furthermore, there was Trump’s careful language; he didn’t so much deny to McGahn that he had wanted Mueller removed, but rather that he had used the word “fired.”  He didn’t deny to McGahn that he had suggested that “Mueller has to go,” for example.  Finally, the report states that even if Mr. Trump had sincerely believed that McGahn’s memory was faulty, he knew full well that McGahn was convinced that he had told the truth and that the Times and Post reports were essentially correct, and that he would have no part in refuting them for that reason.  Continuing to push McGahn and even threatening to fire him if he did not make a written statement he believed to be false seems designed to make it difficult for him to testify to what he thought to be the truth.

2.     Nexus to an official proceeding:  When the Times story broke, there was already a grand jury investigating several obstruction-related events, and Trump was even roughly aware of what those were because his personal lawyers had been discussing his possible testimony.  Trump’s attempt to get McGahn to write a letter “for our records” which McGahn thought to be false goes well beyond the sort of “press strategy” he used to try to cover up the Trump Tower meeting between his aides, family and Russian agents.  The only reason to need a written record was to use in possible legal proceedings; therefore, the nexus exists and the written letter Trump desired would have been pointless if it did not.

3.     Intent:  The report cites extensive evidence that Trump’s intention was not to test McGahn’s memory or even to challenge it, but to change his possible testimony regarding Trump’s efforts to undermine and influence the Mueller investigation.  In particular, Trump’s alarm that McGahn had written notes at the time to help ensure his memory remained accurate is damning.  If Trump were interested in the truth, he would have welcomed such attention to accuracy; instead, he was angry because he feared it could create more legal problems for him.  Simply put, the evidence is that he feared the truth and wanted McGahn to cooperate in creating a false story that would protect Mr. Trump from an obstruction-of-justice charge stemming from his efforts to end the Mueller investigation by getting rid of Mueller himself.

            While the initial incident, asking Comey to go easy on Flynn, could be seen as fairly petty, that initial misstep has led to graver acts of obstruction of justice.  At this point, by attempting to force McGahn to testify falsely as to his own memory, Donald Trump appears to be suborning perjury.  Whether this “appears” is ever proven one way or the other depends on whether there is ever an impeachment inquiry or criminal trial at which evidence could be presented by and against Mr. Trump and a fair, open determination made.

The Mueller Report: I read it for you, but you should read it for yourself. pt. 6

June 29, 2019

The President’s Efforts to Prevent Disclosure of Emails About the June 9, 2016 Meeting Between Russians and Senior Campaign Officials

 

This part of Volume II of the Mueller Report relates more closely to the subject matter of Volume I than the other sections we have examined. Russian agents, closely tied to Vladimir Putin though not officially part of his government, approached the Donald Trump Jr. at a time when his father was the presumptive Republican nominee for President of the United States, offering him derogatory information about Hillary Clinton as part of what they described as the Russian government’s efforts to help Mr. Trump win the general election. Some of the highest level campaign workers, including Don Jr. agreed to meet in Trump Tower with these self-professed Russian agents. Don Jr. later said he had expected different information from the Russians than he received, supposedly indicating financial corruption which apparently didn’t exist given that such evidence wasn’t produced, though it remains unclear whether Don Jr. realized then or now that there was no such corruption. Apparently there was no direct discussion at this meeting of the fact that the Russians had hacked the DNC computers and were preparing to selectively release emails that would embarrass the Clinton campaign and enrage Bernie Sanders followers. Instead, after being a bit vague about what they were offering, the Russians made clear what they wanted in return for their help: relief from the Magnitsky Act, a set of sanctions imposed by the Obama administration on Russian oligarchs connected to such crimes as murder, money laundering, and the illegal seizure of Crimea from Ukraine. While Don Jr. claimed that nothing came of the meeting, shortly after this the Russians began feeding DNC emails to WikiLeaks.

A year later, after his election, Mr. Trump learned that there were emails detailing the involvement of his son, his son-in-law Jared Kushner, his then campaign manager and others in this clandestine meeting with Putin’s emissaries, including the Russians’ statement that they were acting on their government’s behalf to help Trump win and his son’s reply “If it’s what you say, I love it.” According to Mr. Trump’s written statements, he had no knowledge at the time about the meeting; he has refused to answer questions in person. At this time the meeting was being investigated as part of the FBI Russia investigation, and had in fact provided requested information including these emails. However, Mr. Trump actively sought to hide this information from the press, the American people and even from himself. For example, when Hope Hicks sought to discuss the emails with him because she thought they looked “really bad,” he replied each time that he didn’t want to know the details. While he knowingly dictated a false explanation to The New York Times about the nature of the meeting, he sought to avoid having anyone discuss the true nature of the meeting with the press, or with he himself as part of planning his press strategy. Despite warnings from Hicks and others that the actual facts would eventually leak, Trump insisted that if they just kept mum the existence of the emails would never be known and the whole thing would blow over. Discussion between Hicks, Trump and then White House spokesperson Mark Corallo of Corallo’s attempts to plant a false narrative on a conservative news site included discussion of the fact that a “document” existed which would contradict the statement Trump had written for his son to deliver about the meeting, and the belief that its existence would never get out. Eventually, the emails did leak, Trump Jr. followed Ms. Hicks’ original advice to simply release the emails and weather the storm, and the President stated that it didn’t matter because his false explanation had been given to the Times and not to “a high tribunal of judges.”

All of this certainly fits the common dictionary definition of “collusion,” meaning “a secret cooperation or deceitful agreement in order to deceive others, although not necessarily illegal.” There was the Russian government’s stated intention to help Mr. Trump win the election, efforts made on both sides to hide knowledge of this support from the public, and Russia’s stated desire to “discuss” the sanctions imposed under the Magnitsky Act. But as stated in our summary of Volume One of the Special Counsel’s report, Mueller did not feel this meeting rose to the level of criminal conspiracy, or at least he states he did not think there was evidence to prove it did. Likewise, the later claims by Trump that “I don’t do cover-ups” is clearly false, and he himself said as much. To determine whether this incident constitutes obstruction of justice, the three constitutive elements need to be considered:

  1. Obstructive Act: Mueller finds at least three instances where Mr. Trump ordered others to deny the existence of the emails about the Trump Tower meeting, and actively participated in giving false information to the press. However, Mr. Mueller notes that there is no evidence that Mr. Trump or the White House actually sought to hide the documents or the information from Congress or the Special Counsel. Instead, the stonewalling and deceit “occurred in the context of developing a press strategy,” and as Mr. Trump observed himself, lying to the press, or the American people, is not a crime.
  2. Nexus to an official proceeding: Since the information was provided to the official investigative offices which requested it, and the natural result of keeping the emails from the public was not likely to impede a grand jury or other investigation, there is no nexus.
  3. Intent: The intent was to stonewall the press, and thus prevent the public from finding out the truth about the Trump Tower meeting, as the fact that the Russian government and Trump’s own family and campaign staff were meeting together to strategize how to help him get elected would look “really bad.” However, there is no evidence that there was any intent to hide this meeting from any official scrutiny.

Thus, Mr. Mueller concludes that the actions to hide the Trump Tower meeting from the public were not themselves obstruction of justice. While there was clearly an intention to lie to the press and to voters, and while it is clear that the Trumps were well aware of and eager for Russian help winning the election, and that they were willing to cooperate with Russia to some degree, Mueller decided that none of this can be proven to violate U.S. law. While it may be embarrassing for all concerned (esp. American citizens) to admit that the President of the United States was elected with the active assistance of a hostile foreign power, and that he, his family and his advisors were aware of this and were only concerned that it might become public knowledge, the attempt to hide this was not in fact “obstruction of justice” so long as the cover-up only involved lying to the press.

The Mueller Report: I read it for you, but you should read it yourself. pt. 4

June 26, 2019

The President’s Efforts to Remove the Special Counsel

Of all the consequences of firing Director Comey, the worst from Trump’s perspective was the appointment of a Special Counsel to lead the investigation into Russian subversion of our electoral process. This was, of course, inevitable, given the gravity of the question of the integrity of our elections, the lack of trust most Americans had that the President would address the problem in an honest and impartial manner, the deep concerns of most of the nation’s law enforcement and counterintelligence agencies, and the fact that almost everyone else was either a potential suspect or a witness at this point. This was totally predictable and unavoidable in the view of anyone with any political sense or understanding of how American government works, but it caught Mr. Trump completely by surprise. The report states: “According to notes written by Hunt, when Sessions told the President that a Special Counsel had been appointed, the President slumped back in his chair and said, “Oh my God. This is terrible. This is the end of my Presidency. I’m fucked.’” Given that Clinton survived a Special Prosecutor with far more sweeping powers and far less neutrality than Mueller had, this seems rather melodramatic. He then became angry at Attorney General Sessions for not protecting him. I have to confess, I have to agree to a point, given that Sessions apparently recommended firing Comey and the appointment of a Special Prosecutor to take over the investigation after that was as predictable as a third Sharknado movie.   Several witnesses report that Trump was in a rage, and he demanded Sessions resign. Sessions agreed, wrote out his resignation letter and handed it to Trump. Trump decided let Sessions stay as AG, but refused to return the letter until other advisors pressured him over several days to do so.

All of this seems understandable given Mr. Trump’s well-known temper and political ignorance, and by itself not very significant. His later efforts to hit back at the Special Counsel before he even began his work, however, were more questionable. Trump began pushing for Special Counsel Mueller to be removed, alleging conflicts of interest. His own advisors told him his claims were, in Bannon’s words, “ridiculous and petty” and Department of Justice ethics officials examined the question and found no cause for concern. Despite this, Trump pressured White House Counsel McGahn to push Deputy AG Rosenstein to fire Mueller over these alleged conflicts. McGahn pushed back, telling Trump that firing Comey wasn’t even his “biggest exposure” compared to his “other contacts” and his efforts to end the Flynn investigation. The report goes on to describe increased pressure from Trump to fire Mueller, and apparent efforts by various advisors and staff to derail these efforts by leaking them to the press, refusing to cooperate and so on. McGahn even prepared to resign rather than participate in firing Mueller, though ultimately he was talked out of resigning by Steve Bannon and Reince Priebus. In the end McGahn did not resign, and Trump did not ask him the next day whether he had instructed Rosenstein to fire Mueller as Trump had wanted.

The Special Counsel considered these facts to be relevant to determining whether this behavior constitutes obstruction of justice:

  1. Obstructive Act: The report considers whether firing Mueller would have naturally delayed, chilled or otherwise impeded any further investigation. After all, firing Mueller would probably have meant he was replaced, but even so the investigation could have been crippled. Therefore, the proposed firing could have obstructed the investigation. It is also crucial to consider whether Trump actually ordered Mueller fired, or merely suggested the DOJ investigate these alleged conflicts of interest. Ultimately, the report rejects Trump’s denials that he ordered McGahn to order Rosenstein to fire Mueller; not only did it find McGahn a more credible witness than Trump with no motive to lie, but his other actions supported his story, other witnesses corroborate parts of it, and DOJ was already well aware of the allegations Trump was making and had concluded they were baseless. So Mueller’s office found Trump’s claim that he was merely making a suggestion that they look at these supposed conflicts to be unbelievable, while McGahn’s claim that Trump told him “Mueller has to go” likely true.[1] Thus we have an attempt to perform an act that would be likely to impede further investigation; this attempt was not carried out only because McGahn refused to do as ordered, and Mr. Trump was either persuaded to drop the matter or otherwise lost interest in it, as he lost interest in firing Sessions.
  2. Nexus to an official proceeding: By this time Mr. Trump knew he was under investigation; he had been warned by McGahn of his legal exposure, the Special Counsel’s office had informed the White House that they’d be interviewing witnesses to Trump’s interference in Comey’s investigation, and Trump himself tweeted that he was under investigation. Therefore, he knew there was an official investigation which could be crippled or completely derailed by firing the Special Counsel, yet he sought to do so anyway.
  3. Intent: “Substantial evidence indicates that the President’s attempts to remove the Special Counsel were linked… to reports that the President was being investigated for potential obstruction of justice.” From his immediate “I’m fucked” to his pushing previously refuted allegations against Mueller and finally to his ordering Mueller be fired, it is clear that he was primarily concerned with protecting himself; and his later denials of having ordered McGahn to fire the Special Counsel suggest he knew the order could be seen as improper.

Once again, the report cites the existence of all three essential ingredients of an obstruction of justice: the act itself, the investigation to be obstructed, and the intent to do so. Mr. Trump had the desire to end the investigation and discussed “knocking out Mueller” by alleging conflicts of interest which his own people described as “silly” and “not real.” The only reason he did not “knock out Mueller” was that his own staff and advisors, realizing the enormity of his proposed actions (McGahn described it as “crazy shit”) refused to cooperate. Attempted obstruction of justice, like attempted murder, is still prosecutable; whether this act does indeed rise to the level of criminality is something that can only be determined, says Mueller, by an impeachment hearing before Congress, where all evidence can be presented and the President can offer his defense against the charges.

[1] Of course too, McGahn answered questions under oath and in person; Trump has refused to do so.

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.

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(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….