Posts Tagged ‘Russian Collusion’

The Mueller Report: I read it for you, but you should read it for yourself. pt. 10

July 29, 2019

Underlying Factual Issues

            This section deals with general issues, such as the legal justification for the investigation, the legal limits on it, and the general pattern of behavior by Mr. Trump. This is a wide-ranging section, parts of which are rather technical, so a list of the salient points is useful.

  1. First, this report differs from obstruction-of-justice cases typically handled by the Department of Justice because it deals with the President of the United States. Some of the report “raises garden-variety obstruction-of-justice issues,” other parts deal with the use or potential misuse of the powers granted to the President by Article II of the Constitution. This is relevant to the possible defense against the charge of obstruction, which is discussed later. At the same time, what for a billionaire heir businessman private citizen might be dismissed as “Trump being Trump” become much more legally fraught when done by the President of the United States, who has “unique and powerful means of influencing official proceedings, subordinate officers, and potential witnesses.” It’s one thing if a private citizen, even a celebrity billionaire playboy, says some person or people should be “locked up” for a supposed crime; it’s quite another when the President, who has broad authority to help make that happen, says it. When Mr. Trump called for the Central Park Five to be executed, it was an abuse of his economic power; he was able to take out ads in papers, to use his celebrity status to get television air time, and so on. And it turns out he was wrong; he didn’t know the facts, jumped to a conclusion rather than wait for a proper investigation, and attempted to have innocent people killed. But he was still only a private citizen, albeit an enormously powerful one; the damage he could do himself was limited. The President of the United States, on the other hand, has far more informal power to influence, tweet, speak on television and so on, and formal power to hire and fire prosecutors and even the Attorney General if they investigate (or not) contrary to his whims. When he says someone should be “looked into” it isn’t just an opinion; it’s closer to a credible threat.
  2. Many obstruction cases involve covering up an underlying crime. In this case, however, the Special Counsel did not find proof that Donald Trump Sr. knowingly conspired with Russia to undermine the U.S. election system. However, proof of an underlying crime is not necessary to establish obstruction of justice. The Special Counsel’s investigation firmly established that there were hundreds of contacts between the Trump campaign and Russian agents, as well as agents of other foreign governments; that these involved high-ranking members of this campaign including his own family; that the Putin regime was actively working to elect Donald Trump Sr. and that in many cases those campaign leaders knew that they were in contact with foreign agents and/or that they were receiving illegally obtained materials or other legally dubious help. All of this was acutely embarrassing to Mr. Trump and he was intensely concerned that it might undermine the legitimacy of his election. Furthermore, at the time the alleged obstruction occurred it was not established whether there was an underlying crime or whether the President’s own family might be prosecuted; as he himself said, his “satellites” might have done things he didn’t know about. In fact, at the time of this writing it is still not established whether there are more prosecutions; and multiple high-ranking Trump campaign directors or policy advisors have pled guilty or been convicted of felonies. Whether the obstruction of justice is motivated by a desire to avoid personal embarrassment or to hide a potential crime, the damage to the integrity of the justice system is the same; that is why obstruction of justice is such a serious matter.
  3. Many of the alleged acts of obstruction-of-justice took place in public view. This seems strange, given that obstruction of justice is a felony; you would think someone committing a felony would be secretive. However, the report asserts that given the power the President has to influence witnesses and official proceedings through mass communication, what we need to focus on is not whether the act was publicly known but whether we can discern a corrupt intent. In many cases, such corrupt intent is in fact established by witnesses or even Trump’s own words. Whether witness tampering or other acts of obstruction occur privately or publicly, the damage to the judicial system is the same, and therefore the crime is equally serious.
  4. While the report discusses separate instances of possible obstruction of justice, there is an overall pattern. At first, before Trump became aware that he was under any sort of investigation, he was concerned primarily to publicly clear his name. His efforts were primarily focused on getting intelligence and legal officials to state that there was no crime, or at least that he personally had not committed any crime, even though the investigation was still ongoing. But after firing James Comey, Trump found that he himself was being investigated for obstruction of justice, and his efforts became much more direct, aggressive and nasty.
  5. Trump repeatedly attempted to undermine or control the investigation into Russia’s efforts to elect him. Those efforts were often unsuccessful because his aides and subordinates did not carry out his orders. Comey did not shut down the Flynn investigation, which ultimately led to Flynn’s prosecution. McGahn did not tell Sessions to fire Mueller, and did not agree later to lie about having been asked to fire Mueller. This does not make Trump himself any less guilty of obstruction of justice; only a trial could establish that. But it does let most of those aides off the hook since they refused to participate in what might have been illegal acts had they been carried out.
  6. The President’s legal team offers what we might call the Nixon Defense: if the President does it, it is not illegal, even if it would have been illegal if any governor, senator or other official had done it, due to the authority and powers granted by Article II of the Constitution. Citing a great deal of case law, as well as legal interpretation of the Constitution including Article I and the principle of separation-of-powers, the Special Counsel’s report rejects this defense and holds that the laws against obstruction of justice apply to everyone, even the President. Requiring the President to obey laws against corruptly undermining the judicial system for his own personal gain does not unduly impede his ability to fulfill his office as described in Article II, while allowing the President to ignore laws passed by Congress and signed into law would unduly undermine the Article I responsibilities granted to Congress to pass laws for the good of the nation, and to exercise oversight of the other branches of government on behalf of the American people. In so deciding, the Special Counsel’s office cites many court rulings, including the Nixon case.
  7. Finally, the conclusion: while the Special Counsel did not make a traditional recommendation whether to prosecute, it did clearly state that it could not make a decision not to prosecute. As stated earlier, the Special Counsel felt that it could not recommend prosecution no matter what it found, since the Department of Justice policy is to not charge a sitting President with a crime even if a crime is found. However, the Special Counsel is quite explicit about whether this means the President is exonerated. It does not. The report concludes that he may well have committed obstruction of justice, and that were he not President then a trial for obstruction would be warranted.

Mueller’s public testimony clarifies somewhat that if it were anybody else who had committed the actions discovered in this investigation, that person would be facing trial for obstruction of justice. If his office had cleared Trump of all crimes, they would have so stated; but he is not cleared. Mueller stated directly that Mr. Trump can be put on trial after he leaves office. When asked whether an impeachment inquiry would also be an adequate forum to publicly establish the President’s guilt or innocence, Mueller refused to answer. His only concern was with the legal issues and the Department of Justice guidelines that he operated under. These allowed for a criminal investigation to establish facts and record evidence while memories were still fresh and other documents and evidence still exist, even though those guidelines forbid even a sealed indictment. They make no claims about impeachment because that is not the authority of the Department of Justice; it is authorized under Article One of the Constitution, which gives the powers and describes the procedures by which Congress may impeach the President or other officials. The concern is to be fair to the accused, who must be given the chance to answer the charges promptly. In principle, since an impeachment trial is a trial, an impeachment would also qualify as a “forum in which” the accused may “vindicate themselves.”

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.