Published by The Lawfare Institute
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Thursday I surveyed the entire Mueller report. I read some sections carefully; I skimmed others. My job was to anchor Lawfare’s initial coverage, so I needed to have a sense of the big picture, as well as detailed knowledge of certain findings and arguments. Starting Friday, however, I am reading the entire document carefully, starting at the beginning. I’m writing up my thoughts as I go in this post. There will be no cohesive argument to this journal. It will simply be a collection of my observations, questions and thoughts as I go through the document. It will get long. I will not attempt to summarize the underlying document, merely to reflect on it, but I will organize this post by document section. I will update the post as I read. I hope people find it useful.
The following table of contents are links to the sections of this journal, which correspond to sections of the report itself:
This is a short little section, barely two pages, but it has several interesting items in it, starting with Mueller’s almost casual endorsement of the FBI’s historical account of the Russia investigation’s origins. In the middle of page 1, Mueller describes the investigation as beginning when “a foreign government contacted the FBI about a May 2016 encounter with Trump Campaign foreign policy advisor George Papadopoulos.” Papadopoulos, Mueller writes, had “suggested to a representative of that foreign government that the Trump Campaign had received indications from the Russian government that it could assist the Campaign through the anonymous release of information damaging to Democratic presidential candidate Hillary Clinton.” It was that information, the paragraph concludes, that “prompted the FBI on July 31, 2016, to open an investigation into whether individuals associated with the Trump Campaign were coordinating with the Russian government in its interference activities.”
Sorry, Devin Nunes. There's no mention of the Steele Dossier.
Lower down on the same page begins the actual quotation that Attorney General William Barr quoted partially—and, as it turns out, quite distortedly—in his letter of March 24, 2019 announcing the top-line conclusions of the report. Barr wrote: “The Special Counsel’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. As the report states: ‘[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.’” Here’s what Mueller actually wrote: “The investigation also identified numerous links between the Russian government and the Trump Campaign. Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”
New York Times reporter Charlie Savage has an excellent piece identifying the rather numerous times Barr selectively and distortively quoted Mueller to convey something friendlier to the president than the actual report conveys.
Barely a paragraph later, Mueller clarifies something else that should embarrass Barr. At his press conference Thursday, Barr repeatedly described the special counsel’s office as having found no evidence of Trump campaign “collusion” with Russia. Mueller’s report introduction throws two wrenches into this account. First, Mueller makes clear that when the report concludes that “the investigation did not establish particular facts” this “does not mean there was no evidence of those facts.”
In the next paragraph, Mueller articulates his understanding of the relationship between the terms “collusion,” “coordination” and “conspiracy”:
In evaluating whether evidence about collective action of multiple individuals constituted a crime, we applied the framework of conspiracy law, not the concept of “collusion.” In so doing, the Office recognized that the word “collud[e]” was used in communications with the Acting Attorney General confirming certain aspects of the investigation's scope and that the term has frequently been invoked in public reporting about the investigation. But collusion is not a specific offense or theory of liability found in the United States Code, nor is it a term of art in federal criminal law. For those reasons, the Office’s focus in analyzing questions of joint criminal liability was on conspiracy as defined in federal law. In connection with that analysis, we addressed the factual question whether members of the Trump Campaign “coordinat[ed]”—a term that appears in the appointment order—with Russian election interference activities. Like collusion, “coordination” does not have a settled definition in federal criminal law. We understood coordination to require an agreement—tacit or express—between the Trump Campaign and the Russian government on election interference. That requires more than the two parties taking actions that were informed by or responsive to the other's actions or interests. We applied the term coordination in that sense when stating in the report that the investigation did not establish that the Trump Campaign coordinated with the Russian government in its election interference activities.
In other words, when the attorney general states that “there was in fact no collusion,” that the special counsel found “no underlying collusion with Russia,” that Mueller “did not find that the Trump campaign or other Americans colluded in [the Russian] schemes,” and that Mueller “did not find any conspiracy to violate U.S. law involving Russia-linked persons and any persons associated with the Trump campaign,” Barr is being misleading both as to what Mueller examined and as to what Mueller does and does not mean when he says he did not establish or find something.
The first notable thing about this section is that it very clearly lays out how Mueller understood and operationalized his jurisdiction—which was both quite limited and which Mueller largely did not seek to expand. This makes the Mueller investigation highly unusual in the history of special counsel investigations, which we normally think of as hoarding jurisdiction and as ever-expanding in their scope.
Mueller, by contrast, makes clear that his jurisdiction was narrow. It was defined by a series of orders and clarifications from Rod Rosenstein, the first of which defined three elements: (1) “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” (2) any matters that arose or may arise directly from the investigation, and (3) “any other matters within the scope of 28 C.F.R. § 600.4(a)”—which covers efforts to obstruct special counsel investigations. To this basic mandate, Rosenstein later clarified two points in a separate letter: He made clear that it included allegations involving Carter Page, Paul Manafort and George Papadopoulos in their possible “collusion” with Russia, and he made clear that it included as well allegations about Manafort’s dealings with Ukraine and another corruption matter. Rosenstein later wrote an additional letter clarifying that the original order also applied to Michael Cohen, Richard Gates, Roger Stone and two other names that are redacted for privacy reasons.
Mueller has hewed closely to this original mandate. Unlike prior special counsel’s offices, as matters came to him that pushed the edges of his jurisdiction, he referred them to other Justice Department components. He also referred matters at the end of his investigation that were ongoing. A list of all of the referrals appears in Appendix D of the report, which lists 10 transfers of cases begun by the special counsel’s office and an additional 14 “referrals,” which Mueller describes as covering “evidence of potential criminal activity that was outside the scope of the Special Counsel’s jurisdiction.” These referrals are, with the exception of the Michael Cohen campaign finance matters and the Greg Craig Foreign Agents Registration Act matter, all redacted.
Call them children of the Mueller investigation—and keep a close eye on them.
A note on staffing. President Trump has repeatedly referred to the Mueller investigation as composed of 13 or 17 or 18 “angry Democrats,” so let’s get on the record exactly how the Mueller investigation was staffed in reality. There were 19 lawyers at the investigation’s “high point”—five from private practice and 14 on detail from elsewhere in the Justice Department. They had a filter team from the department and FBI to screen for privileged material. They had three paralegals. They had an administrative staff of nine. And they worked alongside “approximately 40 FBI agents, intelligence analysts, forensic accountants” and others assigned to the office. FBI staff “remained under FBI supervision at all times; the matters on which they assisted were supervised by the Special Counsel.”
There’s no word about any party affiliation of any of the staff—much less about their anger level.
There is word, however, about an important matter that has been something of a mystery throughout the Mueller investigation: What sort of investigation was this?
Because the Mueller investigation was born out of a counterintelligence investigation, there has been an enduring impression that it had both criminal and counterintelligence elements. I have assumed this myself at times. How these two very different missions integrated within the Mueller probe has been much discussed. This section of the report answers this question, and the answer is actually striking: The Mueller investigation was a criminal probe. Full stop.
It was not a counterintelligence probe. Mueller both says this directly in this section and also says what happened to the counterintelligence investigation. Here’s how Mueller describes his investigation: “The Special Counsel structured the investigation in view of his power and authority ‘to exercise all investigative and prosecutorial functions of any United States Attorney.’ 28 C.F.R, § 600.6. Like a U.S. Attorney's Office, the Special Counsel’s Office considered a range of classified and unclassified information available to the FBI in the course of the Office's Russia investigation, and the Office structured that work around evidence for possible use in prosecutions of federal crimes ...” (emphasis added).
At the bottom of page 13, Mueller then answers the question of what happened to the counterintelligence components of the investigation. They stayed in the FBI:
From its inception, the Office recognized that its investigation could identify foreign intelligence and counterintelligence information relevant to the FBI’s broader national security mission. FBI personnel who assisted the Office established procedures to identify and convey such information to the FBI. The FBI’s Counterintelligence Division met with the Office regularly for that purpose for most of the Office’s tenure. For more than the past year, the FBI also embedded personnel at the Office who did not work on the Special Counsel’s investigation, but whose purpose was to review the results of the investigation and to send—in writing—summaries of foreign intelligence and counterintelligence information to FBIHQ and FBI Field Offices. Those communications and other correspondence between the Office and the FBI contain information derived from the investigation, not all of which is contained in this Volume. This Volume is a summary. It contains, in the Office’s judgment, that information necessary to account for the Special Counsel’s prosecution and declination decisions and to describe the investigation’s main factual results.
In other words, the Mueller probe was a criminal probe only. It had embedded FBI personnel sending back to the FBI material germane to the FBI’s counterintelligence mission. But Mueller does not appear to have taken on any counterintelligence investigative function. And the report is purely an account through the lens of the criminal law. This partly, though only partly, explains why there is no classified information in the report, which contains no “portion markings” anywhere.
This point has a major analytical consequence for the entire way one reads the Mueller report: Don’t assume it answers counterintelligence questions. Where it concludes that someone didn’t engage in a conspiracy, don’t confuse that with answering the question of whether there is some counterintelligence risk associated with that person. Instead, read the report only as an account of the disposition of the criminal questions associated with L'Affaire Russe. But keep in mind the following question as well: If I were an FBI counterintelligence agent and I knew this material, how concerned would I be about the individual in question?
I will try to flag such questions as I go through the report.
The Mueller report’s discussion of the Russian social media campaign is the section of the report that is most truly exonerating of Trump and his campaign—at least in the criminal sense. Yes, the Russians duped Trump campaign figures into promoting their material, but nobody appears to have deliberately done so. Mueller’s statement that the “investigation did not identify evidence that any U.S. persons knowingly and intentionally coordinated with the [Internet Research Agency’s] interference operations” is a stronger statement than the “did not establish” language that Mueller uses to indicate that evidence is insufficient to prove something. Here he actually seems to be saying that the investigation did not produce evidence at all of knowing participation in the scheme.
The story the report tells, however, is disturbing on its own terms. It appears to be largely the same as the story told in the IRA indictment, though major redactions in this section—all presumably the result of the pending IRA indictment—impair one’s ability to read it. There are some new details, and there are presumably more such details in the redacted sections. But the broad story is one we already know.
It is a story of failed immunity on the U.S. side to outside interference—and aggressive Russian exploitation of the absence of democratic antibodies to fight off such manipulation. The IRA was able to reach tens of millions of U.S. persons using its social media accounts. It was able to trick prominent people into engaging with and promoting its dummy accounts. It was able to exploit social media companies. And it was able to make a series of contacts with Trump campaign affiliates and get Trump figures—including Trump himself—to engage with and promote social media content that came from a hostile power’s covert efforts to influence the American electorate. Though not intentional or criminal on the U.S. side, this pattern shows a troubling degree of vulnerability on the part of the U.S. political system to outside influence campaigns.
And while Trump and his people did not “collude” with the operation, they did fall for it. The investigation identified “multiple occasions” on which “members and surrogates of the Trump Campaign promoted ... pro-Trump or anti-Clinton content published by the IRA” or engaged directly with IRA trolls. Mueller notes that the “investigation identified no similar connections between the IRA and the Clinton Campaign.” To some degree, no doubt, this was because the IRA message was hostile to Clinton and thus not something her people would want to engage. But no doubt the Trump folks were also particularly vulnerable to this sort of manipulation. While they weren’t active partners in this scheme, they were suckers.
One important question the report does not answer, almost certainly because of redactions, is to what extent the IRA operation was directed by the Russian government. The organization’s head is famously close to Russian President Vladimir Putin, though the organization is a private company, not on its face a government operation. While I think it’s reasonable to assume that the operation was state sanctioned, if not state run, the portion of the report that presumably specifies the operation’s relationship to the Russian state is all redacted. So that has to remain a strong hypothesis for now.
The gravamen of this section of the report, in short, is that a lot of entities and individuals contributed to an ecosystem in which a foreign actor—almost certainly at the behest of a foreign government—could run a major disinformation and influence operation against the U.S. electorate. Those actors included a lot of people associated with Trump. While this was not criminal and, indeed, nobody on the U.S. side appears to have intended to do anything wrong, the cumulative result is an unacceptable degree of vulnerability to such malign foreign operations.
The solution to this problem is not simple. The social media companies obviously have a role to play in better policing their platforms. But some of the solution has to come from individuals, particularly prominent individuals, being willing to take more care about sharing on social media content the provenance of which they are not certain. That obviously includes the president and his family members and campaign staff.
If the active measures section of the report is exonerating of Trump and his campaign, the section that follows it—the Russian hacking section—is not. It is much worse than is commonly understood for Trump. Just how damning it is has gone somewhat unnoticed for, I think, four reasons. First, like the social media discussion, the hacking section to some degree tracks material already in a Mueller indictment—in this case, the GRU indictment—so what is new is woven in among already familiar material. Second, as with the IRA discussion, there is no ultimate decision to charge anyone on the U.S. side with participation in the hacking. Third, a key portion of this section is significantly impaired by redactions. And finally, the story Mueller is telling here is one that's a little different from the one everyone was looking for. The result of these four factors in combination is that the full story Mueller presents has not quite come through.
So let’s tease it out, because it’s actually a whopper.
On the Russian hacking itself, the report contains a lot of new detail but not a lot that fundamentally changes our understanding of the Russian operation. And yes, Mueller does not appear to have developed evidence that anyone associated with the Trump campaign was involved in the hacking operation itself.
But here’s the thing: It wasn’t for lack of trying. Indeed, the Mueller report makes clear that Trump personally ordered an attempt to obtain Hillary Clinton’s emails; and people associated with the campaign pursued this believing they were dealing with Russian hackers. Trump also personally engaged in discussions about coordinating public relations strategy around WikiLeaks releases of hacked emails. At least one person associated with the campaign was in touch directly with the Guccifer 2.0 persona of the GRU. And Donald Trump Jr. was directly in touch with WikiLeaks itself—from whom he obtained a password to a hacked database. There are reasons none of these incidents amount to crimes—good reasons, in my view, in most cases, viable judgment calls in others. But the picture it all paints of the president’s conduct is anything but exonerating.
This was not “no collusion.” It was Keystone Kollusion—and the incompetence of it is likely the reason no crime was committed.
The first important point here is that the GRU and the Trump campaign—including Trump himself—were not operating in parallel worlds but in iterative interaction with one another. On July 27, 2016, Trump in a speech publicly called for Russia to release Hillary Clinton’s missing server emails: “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing.” The reference here was not to the hacking the GRU had done over the past few months but to the hypothesized compromise of Clinton’s private email server some time earlier—an event that there is no particular reason to believe took place at all.
The GRU, like many Trump supporters, took Trump seriously, but not literally. “Within approximately five hours of Trump’s announcement,” Mueller writes, “GRU officers targeted for the first time Clinton’s personal office.” In other words, the GRU appears to have responded to Trump's call for Russia to release a set of Clinton's emails the Russians likely never hacked and thus did not have by launching a new wave of attacks aimed at other materials.
Trump has since insisted that he was joking in that speech. But the public comments mirrored private orders. After the speech, “Trump asked individuals affiliated with his Campaign to find the deleted Clinton emails,” the report states. “Michael Flynn ... recalled that Trump made this request repeatedly, and Flynn subsequently contacted multiple people in an effort to obtain the emails.”
Two of the people contacted by Flynn were Barbara Ledeen and Peter Smith. Ledeen had been working on recovering the emails for a while already, Mueller reports. Smith, only weeks after Trump’s speech, sprang into action himself on the subject. The result was the operation about which Matt Tait wrote a firsthand account on Lawfare. “The investigation established that Smith communicated with at least [campaign officials] Flynn and [Sam] Clovis about his search for the deleted Clinton emails,” Mueller writes, though “the Office did not identify evidence that any of the listed individuals initiated or directed Smith’s efforts.” Ledeen obtained emails that proved to be not authentic. Smith, for his part, “drafted multiple emails stating or intimating that he was in contact with Russian hackers”—though Mueller notes that the investigation “did not establish that Smith was in contact with Russian hackers or that Smith, Ledeen, or other individuals in touch with the Trump Campaign ultimately obtained the deleted Clinton emails.”
In other words, it wasn’t that Trump was above dealing with Russian hackers to get Hillary Clinton’s emails. He not only called publicly on the Russians to deliver the goods on his opponent, but he also privately ordered his campaign to seek the material out. He did this knowing himself—clear from his public statements and very clear from the actions of those who acted on his request—that Russia would or might be the source.
The reason there’s no foul here is only that the whole thing was a wild conspiracy theory. The idea that the missing 30,000 emails had been retrieved was never more than conjecture, after all. The idea that they would be easily retrievable from the “dark web” was a kind of fantasy. In other words, even as a real hacking operation was going on, Trump personally, his campaign and his campaign followers were actively attempting to collude with a fake hacking operation that wasn’t going on.
It is not illegal to imagine stolen emails and try to retrieve them from imagined hackers. But it’s morally little different from being spoon-fed information by Russian intelligence. The Trump campaign was seeking exactly the spoon-feeding it was accused of taking; it just couldn’t manage to find the right spoon, and it kept missing when it tried to put any spoons in its mouth.
As to the real hacking operation, that one didn’t need Trump’s help. The Guccifer 2.0 persona had direct contact with Roger Stone (whose name is redacted in the description in the report) in August and September of 2016, Mueller reports. But the GRU had its own distribution mechanisms and didn’t need to engage directly with the Trump campaign or its surrogates. As the operation progressed, WikiLeaks handled the distribution, and both the campaign and the GRU dealt with WikiLeaks—and thus didn't have to deal directly with one another.
The full parameters of the relationship between the Trump campaign and WikiLeaks, as described by the report, remain obscure because of redactions. The redacted material involves the activities of Roger Stone, whose case is pending and who purported to serve as the intermediary between the campaign and WikiLeaks. That said, words readable between redactions make clear that:
“by late summer of 2016, the Trump Campaign was planning a press strategy, a communications campaign, and messaging based on the possible release of Clinton emails by WikiLeaks.”
“While Trump and Gates were driving to LaGuardia Airport,” there was a phone call of some kind, and “shortly after the call candidate Trump told Gates that more release of damaging information would be coming”; and
Donald Trump Jr. had direct communications with WikiLeaks, which gave him the password to the website of an anti-Trump PAC and suggested social media material to promote.
In short, while this section does not describe a Trump campaign conspiracy in the Russian hacks, it does describe direct engagement between the GRU and Stone; it describes both the campaign and the GRU seeking to coordinate with WikiLeaks on the release of information; and it describes the campaign being eager to retrieve what turned out to be fictitious emails and its agents being willing to deal with Russian hackers to get them. The president personally was involved in these latter two episodes, Mueller reports.
It’s a remarkable story, and it's not a flattering one. If nobody ran afoul of the law, the likeliest explanation is the dumbest of dumb luck.
This section comprises more than 100 pages—which gives you an idea of how much material there was to investigate regarding Russian contacts and links with the Trump campaign. It’s a heck of a read, but it’s a complicated one that tells a confusing story I’ll be working to understand for a long time. Mueller tells it through a legal lens; he’s a prosecutor, after all, looking to answer legal questions. But I found myself reading it through a very different lens—the lens of patriotism.
The section begins by articulating a question it actually never quite answers: “The Office investigated whether those contacts constituted a third avenue of attempted Russian interference with or influence on the 2016 presidential election.” I read the section in vain for any hint of what Mueller and his team believe the answer to this question to be. Is the story here that Russia was probing Trump world from all angles in an effort to recruit, compromise and penetrate? Is the story that the Russians were trying to find collaborators with whom to coordinate? Or is the answer to the question that, no, those contacts didn’t constitute a third avenue even on the Russian side—but have some other explanation? Mueller offers nothing by way of a historical theory of the case.
The question the section does answer is the one articulated in the next sentence: “In particular, the investigation examined whether these contacts involved or resulted in coordination or a conspiracy with the Trump Campaign and Russia, including with respect to Russia providing assistance to the Campaign in exchange for any sort of favorable treatment in the future.” The answer to that investigative inquiry? “Based on the available information, the investigation did not establish such coordination.”
The last paragraph of the section adds some texture to this conclusion: “In sum, the investigation established multiple links between Trump Campaign officials and individuals tied to the Russian government. Those links included Russian offers of assistance to the Campaign. In some instances, the Campaign was receptive to the offer, while in other instances the Campaign officials shied away. Ultimately, the investigation did not establish that the Campaign coordinated or conspired with the Russian government in its election-interference activities.”
Let’s treat separately the question Mueller answers and the one he does not answer. They are both complicated discussions. In many ways, the question he doesn’t address is the more interesting and important one. But let’s start with the question the section does address.
To understand Mueller’s answer to the coordination and conspiracy questions, it pays to return to the discussion way back on page 2—discussed above—concerning what Mueller means by coordination and conspiracy and what it means when he says that the evidence “did not establish” something. Mueller made clear early on that he knows perfectly well how to “point out the absence of evidence” when the investigation refutes something; the phrase “did not establish,” he noted specifically, “does not mean there was no evidence” of the facts in question. It means, rather, that the investigation could not prove something adequately for criminal purposes. Coordination, meanwhile, he interprets in light of conspiracy law, which requires a meeting of the minds between conspirators in an agreement to pursue an illegal end. So let’s start by noting the narrowness of the inquiry here and the fact that Mueller chose to use the phrase that he had specifically said earlier did not signify the absence of evidence.
The first point to make, therefore, is that Mueller did not conclude either that coordination between the Russians and the Trump campaign did not happen through some or all of these contacts. He concluded, rather, that he had insufficient evidence to allege criminally that it did happen. This is notably different from his conclusions about the IRA operation, where he affirmatively reported an absence of evidence: the “investigation did not identify evidence that any U.S. persons knowingly and intentionally coordinated with the IRA interference operations.”
It is not hard to see how he came to the conclusion that charges for conspiracy would not be plausible based on the contacts reported here. For starters, a number of the individual incidents that looked deeply suspicious when they first came to light do look more innocent after investigation. These include the change in the Republican Party platform on Ukraine at the Republican Convention, for example, and the various encounters between Jeff Sessions and other campaign officials, on the one hand, and the omnipresent former Russian ambassador, Sergey Kislyak, on the other. On these matters, Mueller does seem to have found that nothing untoward happened.
Even those incidents that don’t look innocent after investigation don’t look like criminal conspiracy either. So, for example, George Papadopoulos found out about the Russians having “dirt” on Clinton in the form of “thousands of emails,” but he does not appear to have reported this to the campaign—though he was trying to arrange a Trump-Putin meeting at the time. Even if he had reported it to the campaign, it doesn’t constitute conspiracy for the Trump campaign to be aware of Russian possession of hacked Clinton emails. The campaign, even if it did learn of what Papadopoulos had heard, never did anything about it.
The Trump Tower meeting is one of the most damning single episodes discussed, since the campaign’s senior staff took a meeting with Russian representatives having been promised disparaging information on Clinton as part of the Russian government’s support of Trump. Yet even here, while the campaign showed eagerness to benefit from Russian activity, the meeting was unproductive and nothing came of it. Where exactly is the conspiracy supposed to be?
Ditto the extended negotiations over Trump Tower Moscow. The investigation here makes clear that Trump—who spent the campaign insisting he had “nothing to do with Russia”—was lying through his teeth the whole time he was, in fact, seeking Russian presidential support for his business deal. But it’s not illegal to have contacts with Russians, including Putin’s immediate staff, to try to build a building. And it’s not obvious how this sort of “collusion” with the Russian government could amount to coordination or conspiracy on concurrent Russian electoral interference. Tellingly, Mueller notes that Michael Cohen couldn’t recall any discussion of the “political implications of the Trump Moscow project,” though he did recall “conversations with Trump in which the candidate suggested that his campaign would be a significant ‘infomercial’ for Trump-branded properties.”
The problem with imagining this series of contacts as a conspiracy law problem is that neither any one of them individually nor any group of them together reflects what Mueller described as his threshold definition of “coordination,” which “require[s] an agreement—tacit or express—between the Trump Campaign and the Russian government on election interference. That requires more than the two parties taking actions that were informed by or responsive to the other's actions or interests.”
But if that’s the case, then why is Mueller so reticent about a stronger “no collusion” conclusion? Mueller actually doesn’t answer this question. But I think there are likely two major factors that lead him to be circumspect in his conclusion on this score.
The first is the sheer volume of contacts. It really is breathtaking. These contacts were taking place even as it was publicly revealed that the Russians had been behind the Democratic Party hacks, even as the releases of emails took place, even as the incumbent administration was publicly attributing the attacks to Russia, even as—through the transition—the outgoing administration was sanctioning Russia for them. The brazen quality of meeting serially with an adversary power while it is attacking the country and lying about it constantly militates against a stronger conclusion that there is no evidence of conspiracy—at least not in the absence of solid answers to every question.
This brings me to the second factor, which is that there were not solid answers to every question—and some of the loose ends are weird. The Mueller team was clearly left unsatisfied that it understood all of Carter Page’s activities while he was in Moscow in July 2016, for example. While redactions encumber the reading of this portion of the discussion, Page had referred in an email to the campaign to “feedback from a diverse array of other sources close to the [Russian] Presidential Administration.” Mueller’s team was apparently unable to figure out what this reference to a "diverse array" of government "sources" meant. “The Office was unable to obtain additional evidence or testimony about who Page may have met or communicated with in Moscow; thus, Page’s activities in Russia—as described in his emails with the Campaign—were not fully explained,” Mueller writes.
Similarly, Donald Trump Jr., the office reports in its discussion of the Trump Tower meeting, “declined to be voluntarily interviewed by the Office.” This line is followed by a redaction for grand jury information. Given that a subpoena would normally resolve the problem of such a refusal of an interview, the redaction raises the question of whether Trump Jr. may have asserted his Fifth Amendment right against self-incrimination or indicated an intent to do so (prosecutors typically will not force someone to appear before a grand jury once they have been informed he or she intends to assert the Fifth). In any event, Mueller’s team was left without a full account of the conduct of the president's son.
The biggest problem in this regard was Paul Manafort. Mueller is candid that he was unable to determine why Manafort was having campaign polling data shared with his long-time employee, Konstantin Kilimnik; Mueller specifically cites evidence tending to support the FBI’s determination that Kilimnik has ties to Russian intelligence. Mueller was also unable to determine what to make of repeated conversations between Kilimnik and Manafort about a Ukrainian peace plan highly favorable to Russia. And while Mueller could not find evidence of Manafort’s passing the peace plan along to other people in the campaign, he notes that the office was unable “to gain access to all of Manafort’s electronic communications” because “messages were sent using encryption applications” and that Manafort lied to the office about the peace plan. As to the polling data, “the Office could not assess what Kilimink (or others he may have given it to) did with it.” So while the office did not establish coordination in this area, it was clearly left with residual suspicions—and with unanswered questions.
So there you are, on the legal side. The evidence arising out of links or contacts isn’t all that close to establishing coordination in the sense that conspiracy law would recognize. But the volume of contacts, the lies and the open questions make it impossible to say that there’s no evidence of it—much less that there’s positive evidence falsifying it.
But as I say, the really interesting question is the nonlegal question that Mueller doesn’t answer: “whether those contacts constituted a third avenue of attempted Russian interference with or influence on the 2016 presidential election.” Put another way, what is the story these contacts tell if it’s not one of active coordination? They surely aren’t, in the aggregate, innocent. They aren’t normal business practice for a presidential campaign. When Mueller asks whether they constituted some sort of third avenue for Russian interference, he’s really asking, in the prosecutorial language available to him, what to make of them.
People are going to see in this history what they want to see. It will tend to reflect back people’s prior assumptions about Trump and the 2016 election. For those who want vindication for Trump in the absence of evidence of a criminal conspiracy, that is a reality available to them from these pages. For those looking for “collusion” in some more colloquial sense of the word, there is plenty of grist for that conclusion here—between Trump Tower Moscow, the Trump Tower meeting, the bizarre behavior of Papadopoulos, Manafort and Page, and the almost endless back-channel communications during the transition. For people thinking in a counterintelligence framework, well, let’s just say it's a target-rich environment on that front as well.
So maybe the following reflects nothing more than my own prior assumptions, but for what it’s worth, here’s what I see in the story Mueller has told over these more-than-a-hundred pages.
I see a group of people for whom partisan polarization wholly and completely defeated patriotism. I see a group of people so completely convinced that Hillary Clinton was the enemy that they were willing to make common cause with an actual adversary power at a time it was attacking their country to defeat her. To me, it matters whether the conduct violated the law only in the pedestrian sense of determining the available remedies for it—and in guiding whether and how we might have to change our laws to prevent such conduct in the future. To me, the salient facts from this section are the following:
- Trump was willing to do business with and seek favors from the Russian state even as it was attacking the country for whose presidency he was running—and he was willing to lie about doing so.
- His campaign’s senior leadership was eager to benefit from that country’s efforts to dish dirt on his opponent and was willing to meet with people it knew to represent that country in order to receive such information.
- Multiple campaign staff and advisers engaged in conduct in relation to that country that legitimately gave rise to counterintelligence scrutiny.
- Multiple campaign staff and advisers lied to investigators about their dealings with Russian officials or intermediaries to such officials in a fashion that gave rise to criminal charges or other actions.
I don’t know the right word for this pattern of conduct. It’s not “collusion,” though it may involve some measure of collusion. It’s not “coordination” or “conspiracy.” But in Clinton, Democrats, and liberals, the Trump campaign saw a sufficiently irreconcilable enemy that it looked at Vladimir Putin and saw a partner. To my mind, anyway, that’s the story Mueller told in this section. It may not be a crime, but it is a very deep betrayal.
The rationales, indeed the specific language, Mueller uses to describe his declination decisions warrant brief discussion. I will confine this discussion to the declinations, though the section in question also covers his decisions to charge people, since the charging decisions are almost wholly explained by prior discussions on Lawfare of the indictments themselves and the litigations that resulted. Here is a list of the major reasons why Mueller did not bring cases:
- As noted above, on the IRA matter, the office found an absence of evidence that any U.S. person participated in the conspiracy: “[T]he investigation did not identify evidence that any U.S. person who coordinated or communicated with the IRA knew that he or she was speaking with Russian nationals engaged in the criminal conspiracy,” the office writes.
- Declinations related to the Computer Fraud and Abuse Act are redacted too heavily to comment upon, other than to note that one of them likely relates—given that episode is described earlier in the report—to Donald Trump Jr.’s receipt and use of a password from WikiLeaks to a site set up by an anti-Trump PAC.
- As to conspiracy, the office “did not establish that the contacts” between the campaign and the Russians “amounted to an agreement to commit any substantive violation of federal criminal law.” The office also “did not establish any agreement among Campaign officials—or between such officials and Russia-linked individuals—to interfere with or obstruct a lawful function of a government agency during the campaign or transition period.”
- On FARA matters and matters under 18 U.S.C. § 951, “the investigation did not ... yield evidence sufficient to sustain any charge that any individual affiliated with the Trump Campaign acted as an agent of a foreign principal within the meaning of FARA or, in terms of Section 951, subject to the direction or control of the government of Russia, or any official thereof. In particular, the Office did not find evidence likely to prove beyond a reasonable doubt that Campaign officials such as Paul Manafort, George Papadopoulos, and Carter Page acted as agents of the Russian government—or at its direction, control, or request—during the relevant time period.” Note the important caveat here: The office is not saying there was not evidence, merely that there was not sufficient evidence to prove the matter criminally. Note also that the office did accuse both Manafort and Flynn of FARA violations, just not for their relationships with Russia. Mueller also notes that “the investigation revealed significant ties between Papadopoulos and Israel (and search warrants were obtained in part of that basis)” but not enough to “obtain and sustain a conviction under FARA or Section 951.”
- The closest call case seems to be on campaign finance charges related to the Trump Tower meeting. The theory here was that the Trump campaign agreed to the meeting expecting to receive derogatory information on Clinton, and that such material constituted a “thing of value” and thus an illegal foreign campaign contribution. The organization of the meeting might thus be a conspiracy to receive illegal foreign contributions. The length of the discussion of this matter suggests it was analyzed carefully and was considered seriously. The declination has three distinct factors behind it. First, while there are “reasonable arguments that the offered information would constitute a ‘thing of value’ within the meaning [of the law],” it is not certain: “[N]o judicial decision has treated the voluntary provision of uncompensated opposition research or similar information as a thing of value that could amount to a contribution under campaign-finance law.” It is thus “uncertain how courts would resolve these issues.” Moreover, “the Office did not obtain admissible evidence likely to meet the government’s burden to prove beyond a reasonable doubt that these individuals acted ‘willfully,’” the office writes. And even if it could prove willfulness, “the government would likely encounter difficulty in proving beyond a reasonable doubt that the value of the promised information exceeded the threshold for a criminal violation.” Campaign finance expert Bob Bauer argued in our Lawfare Podcast discussion of the matter that Mueller’s legal view here is incorrect. I would not presume to try to evaluate the dispute.
- An additional campaign finance declination is too redacted to evaluate.
- A possible false statements case against Jeff Sessions for his denials of having met with Russians during the campaign was declined because “the evidence is not sufficient to prove that Sessions gave knowingly false answers to Russia-related questions in light of the wording and context of those questions.” In light of that wording and context, Mueller concludes, Sessions’s subsequent explanation to the Senate of his understanding “is plausible.”
- Other false statements declinations are too redacted to decipher.
The two-page introduction to Volume II of the Mueller report is perhaps the part of the entire document that packs the most important material into the smallest space. It is here that Mueller explains why he, as he puts it, “determined not to make a traditional prosecutorial judgment” on the question of whether Trump obstructed justice in his interactions over law enforcement investigation of L’Affaire Russe. The reason is complicated and multilayered. It ultimately, I think, leads to the conclusion that Mueller likely believes the president did, in fact, obstruct justice. At a minimum, it certainly argues that the evidence is at least strong enough on this point that the matters should be decided by prosecutors after Trump leaves office.
As a preliminary matter, I want to stress that Mueller’s section is difficult to reconcile with Barr’s account of Mueller’s reasoning at his press conference Thursday morning. Discussing a document that would become public within an hour or so—indeed, a document of which reporters present were being given embargoed copies—Barr was asked by a reporter to “explain for us the special counsel’s articulated reason for not reaching a decision on obstruction of justice and if it had anything to do with the department’s long-standing guidance on not indicting a sitting president?”
Barr responded that he would let Mueller’s report answer that question. Then he added that when he and senior department leadership met with Mueller on March 5, “[w]e specifically asked him about the OLC opinion and whether or not he was taking a position that he would have found a crime but for the existence of the OLC opinion. And he made it very clear several times that that was not his position. He was not saying that but for the OLC opinion, he would have found a crime. He made it clear that he had not made the determination that there was a crime.” When another reporter asked him whether Mueller was deferring to Congress on the question of the evaluation, Barr responded, “Well, Special Counsel Mueller did not indicate that his purpose was to leave the decision to Congress. I hope that was not his view, since we don’t convene grand juries and conduct criminal investigations for that purpose.”
I obviously was not present when Mueller and Barr met on March 5, and I am not saying that Barr was lying about his interactions with Mueller. That said, no component of his comments accurately reflects what Mueller actually wrote in these arresting two pages of the report—which actually lay out a subtle argument.
Mueller lists four “considerations that guided our obstruction-of-justice investigation.” The first of them states that “[t]he Office of Legal Counsel (OLC) has issued an opinion finding that ‘the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions’ in violation of ‘the constitutional separation of powers.’” Because Mueller is an officer of the Justice Department, “this Office accepted OLC’s legal conclusion for purposes of exercising prosecutorial jurisdiction.”
The use of the word “jurisdiction” there is not casual. Mueller does not say he was guided by OLC’s opinion in the exercise of his prosecutorial discretion or that he was influenced by OLC’s view in formulating his own thinking on the law. He describes himself as bound by OLC’s opinion as a matter of jurisdiction. That is, in his view—a view with which I agree—Mueller lacks the authority to indict the president. Indeed, the office declined to make a “traditional prosecutorial judgment” because it was jurisdictionally barred from reaching one of the only two determinations such a “binary” judgment can yield.
The report goes on, in the very next sentence, to state two prudential considerations that directly contradict Barr’s denial that Mueller was deferring to Congress: “[A]part from OLC’s constitutional view, we recognize that a federal criminal accusation against a sitting President would place burdens on the President’s capacity to government and potentially preempt constitutional processes for addressing presidential misconduct” (emphasis added). This second prudential consideration is critical.
Leaving aside Barr’s grossly misleading characterizations of the document, the relevant point is that Mueller makes two things clear within the first substantive paragraph of the section: that OLC’s opinion is central to his decision not to resolve obstruction matters, and that informing his judgment as well is a cognizance that the impeachment process, which Mueller references explicitly in a footnote, is the accepted mechanism for evaluating presidential lawlessness.
Mueller then goes on to explain that OLC “recognizes that a criminal investigation during the President’s term is permissible” because OLC recognizes that “a President does not have immunity after he leaves office.” What’s more, individuals other than the president “may be prosecuted at this time.” This point is important both in answering Barr’s subsequently stated concern that “we don't convene grand juries and conduct criminal investigations” to defer to congressional processes and also to explaining, more generally, what the live criminal question at issue in this matter is, given that the president can’t be indicted. Mueller says explicitly that “we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available” (emphasis added).
It is important to read the second point in the context of the first one. Together they say something like the following: We can’t indict Trump now and are thus deferring to Congress in the short term and creating a record for later prosecutorial assessment when the president leaves office. In other words, Mueller is not declining to make a traditional prosecutorial judgment; he is declining to make a traditional prosecutorial judgment now and leaving that task for someone else to do later.
This brings Mueller to the question of how to describe in the interim the results of an investigation that cannot for now result in indictment. Mueller here makes a highly principled judgment (whether his principle is a good one or a bad one is a question for another day): Given that he can’t indict the president, “we determined not to apply an approach that could potentially result in a judgment that the President committed crimes.” Driving this were “fairness concerns” about a situation in which a judgment of criminality would not result in a “speedy and public trial, with all the procedural protections that surround a criminal case,” which the president could use “to seek to clear his name.” A judgment that the president had committed crimes, without an accompanying charge, Mueller writes, “affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.”
In other words, Mueller is saying that given that he can’t indict Trump now, he is deferring to Congress in the short term, and to the judgment of future prosecutors as to whether ultimately to bring a case, and the Justice Department should not in the meantime be pronouncing on the merits of whether the president has committed crimes—allegations against which there is no forum in which to present a defense.
But then Mueller gives the game away, writing in his fourth point that “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.” The idea of not evaluating criminality turns out to be a one-way ratchet; while Mueller does not allow an evaluation that would inculpate the president, he has no apparent reservation about clearing the president if the facts warranted that.
The trouble, he says, is that “we are unable to reach that judgment” in the face of “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.”
Putting it all together, here’s what I think we can responsibly say is Mueller’s position:
(1) Mueller believes the evidence of presidential obstruction of justice is strong enough, and the president’s defenses weak enough, that to resolve this case would involve precisely the type of traditional prosecutorial judgment that he believes he cannot properly render; it is not clear that the president did not commit obstruction crimes, and, given that, the analysis should go no further.
(2) In the absence of a judgment clearing the president, Mueller does not believe it appropriate for the Justice Department either to opine on the merits of any obstruction case or to close the matter while Trump remains in office—believing the prosecutorial judgment should await the end of Trump’s presidency, when he is again amenable to criminal charges.
(3) In the meantime, Mueller considers the matter a question for Congress, which we can infer because he wants to avoid taking action that would “preempt constitutional processes for addressing presidential misconduct.”
(4) Finally, Mueller assembled the record that follows this dense discussion certainly to aid later prosecutorial consideration and probably also with an eye toward facilitating contemporary congressional consideration.
He articulates all of that antecedent to any discussion of the actual evidence.
There’s not a great deal to say about this section, and so I’m going to largely gloss over it. The first half of it gives some useful background principles on obstruction of justice. The second half offers a straightforward account of the manner in which the special counsel’s office came to investigate obstruction in connection with L’Affaire Russe. The predicate facts are these:
After the appointment of the Special Counsel, this Office obtained evidence about the following events relating to potential issues of obstruction of justice involving the President:
(a) The President’s January 27, 2017 dinner with former FBI Director James Comey in which the President reportedly asked for Comey’s loyalty, one day after the White House had been briefed by the Department of Justice on contacts between former National Security Advisor Michael Flynn and the Russian Ambassador;
(b) The President’s February 14, 2017 meeting with Comey in which the President reportedly asked Comey not to pursue an investigation of Flynn;
(c) The President’s private requests to Comey to make public the fact that the President was not the subject of an FBI investigation and to lift what the President regarded as a cloud;
(d) The President’s outreach to the Director of National Intelligence and the Directors of the National Security Agency and the Central Intelligence Agency about the FBI’s Russia investigation;
(e) The President’s stated rationales for terminating Comey on May 9, 2017, including statements that could reasonably be understood as acknowledging that the FBI’s Russia investigation was a factor in Comey’s termination; and
(f) The President’s reported involvement in issuing a statement about the June 9, 2016 Trump Tower meeting between Russians and senior Trump Campaign officials that said the meeting was about adoption and omitted that the Russians had offered to provide the Trump Campaign with derogatory information about Hillary Clinton.
Taking into account that information and our analysis of applicable statutory and constitutional principles ..., we determined that there was a sufficient factual and legal basis to further investigate potential obstruction-of-justice issues involving the President.
Mueller here also explains his decision not to subpoena the president’s testimony. As with the earlier reference to Donald Trump Jr.’s decision, discussed above, the relevant passage raises a question about whether the president asserted his Fifth Amendment rights not to give evidence that might incriminate himself. “We also sought a voluntary interview with the President. After more than a year of discussion, the President declined to be interviewed,” Mueller writes. The next two lines are redacted for reasons of grand jury secrecy. The implication is that a subpoena may have been issued and then withdrawn for some reason. Normally, one would assume that was because of a Fifth Amendment claim. Here, however, the story seems to be more complicated, and we should be careful. The very next sentence notes that “the President did agree to answer written questions on certain Russia-related topics, and he provided us with answers”—though not on obstruction. And the passage then goes on to articulate reasons other than a Fifth Amendment claim that a subpoena was not pursued. Specifically, Mueller describes having concluded that the process would create “substantial delay” and that “we had sufficient evidence to understand relevant events and to make certain assessments without the President’s testimony.”
John Q. Barrett, on Twitter, offers the following analysis:
And/or the redaction could cover a description of grand juror desire to subpoena the President, which Mueller in the end persuaded the grand jury not to do.— John Q. Barrett (@JohnQBarrett) April 18, 2019
In short, while it’s possible that Trump’s counsel asserted his Fifth Amendment rights or suggested they would do so, it’s also possible that a subpoena was issued and withdrawn for other reasons, negotiations continued, and ultimately Mueller decided not to pursue the subpoena for the reasons he articulated.
This section comprises 12 subsections, lettered A-L, each of which details some aspects of the factual findings of the obstruction investigation. Ten of these subsections, B-K, each detail a potentially obstructive pattern of behavior by Trump. Subsection A describes campaign- and transition-period “response to reports about Russian support for Trump.” And Subsection L details some “overarching factual issues” that affect multiple earlier fact patterns.
There is relatively little new factually in Subsection A, which does not deal with any obstructive pattern, so my analysis will focus on the sections that follow.
A note on Mueller’s methodology here, and my own. Because Mueller does not evaluate the matters he describes in a traditional law enforcement analysis, he never says directly how strong he feels the evidence of criminality is about any of the incidents. What he does instead is to describe the factual findings in detail and then, in an “analysis” section, address the evidence with reference to three common elements of obstruction statutes: the presence of an obstructive act, whether there is a nexus to an obstructable proceeding, and whether there is evidence of criminal intent. Mueller does not, in these subsections, discuss the president’s defenses, which he addresses elsewhere.
One thus cannot evaluate Mueller's conclusions, his not having given any. Instead, I am looking at this evidence through two lenses, which I am attempting to keep analytically separate from one another: First, I will attempt to evaluate how strong a criminal case I think the evidence he describes is in each instance; second, I will evaluate the same fact pattern with regard to how strong a case for impeachment the allegations describe. In a number of the cases, the answers will be similar; in some they will likely diverge. I will generally not review or summarize the facts except as necessary to make my analytical points.
For criminal purposes, a case based on this fact pattern is certainly plausible, but it does have some complexities. The obstructive act is the instruction to Comey, and the evidence here that it happened seems solid. The White House has, of course, denied Comey’s account, but it is notable that Mueller has no doubt of Comey’s credibility; indeed, he specifically finds Comey's story credible and supported by other circumstances and documents. I have no doubt that any jury would agree. There is, of course, the question of whether facially valid exercises of Article II authority are per se not obstructions, but let’s put that issue aside for now beyond saying that both a court as a matter of law and a jury as a matter of fact would have to grapple with whether some variant of that argument precludes conviction. For now, let’s just say that Mueller would have no trouble proving that the act happened and that it was an attempt to stymie the investigation.
I also think Mueller would have no trouble proving corrupt intent on the president’s part here, again with the caveat that the president would get to argue he was just doing his job supervising the Justice Department. Clearing the room before asking Comey to kill the investigation is highly probative of malign intent, as is asking a subordinate to create a record for the file to support one’s story.
Where I think a prosecution here might have a problem is on the supposed nexus to a proceeding. No grand jury was investigating this matter at the time, and FBI investigations are not obviously “proceedings” within the meaning of the obstruction statutes. So while the president clearly moved to shut down an investigation, a prosecution would have to show that he did so intending to interfere with an anticipated proceeding that might flow from that investigation. The evidence of this is certainly plausible. By the time of his conversation with Comey, Trump knew Flynn had lied to the FBI and thus was potentially subject to prosecution. But a case here would not be simple on this point.
By contrast, as a matter of impeachment, this is an easy and overwhelming case—and it’s very simple indeed. The president of the United States, seven days after taking office, demanded loyalty from his FBI director. Shortly thereafter, he isolated Comey in order to ask that he drop a sensitive FBI investigation in which he had a personal interest. He did this knowingly and intending to interfere with the investigation of Russian interference in the election and contacts between his transition team and Russian officials. It is a quintessential abuse of power, and while there may be viable technical defenses against a criminal charge, there simply is no plausible way to understand it as a good-faith exercise of presidential power.
The fact pattern described in this subsection, in and of itself, provides fairly weak grounds for a criminal obstruction case, in my view. Mueller reports that Trump was angered by Sessions’s recusal in the Russia matter and infuriated by Comey’s March 20, 2017, testimony acknowledging the Russia investigation and not declaring clearly that the president wasn’t under investigation. He reports that Trump asked intelligence community leadership to make public statements that the president had done nothing wrong and may have asked Director of National Intelligence Dan Coats to intervene with Comey to tamp down the Russia probe. Mueller reports that Trump leaned on Comey to state publicly that he was not personally under investigation. And he reports that Trump began in this period contemplating Comey’s removal.
As a criminal matter, I’m not sure I see an obstructive act here. If, in fact, the president asked Coats to intervene with Comey to stop the investigation, that would fit the bill, but the evidence on this score is weak; among other things, as Mueller reports, the “first-hand witnesses to the encounter remember it differently” from the Coats aides who describe it in that way. While the president’s behavior toward Sessions here is wildly inappropriate, I’m not sure I see how berating him for a recusal constitutes an obstruction of the investigation either.
Similarly, as an impeachment matter, this material does not—at least not in my judgment—do a lot of work on its own. Congress is not going to impeach the president for asking the intelligence community leadership to make public statements favorable to him or for being mean to the attorney general.
Where this material may be important, in both the criminal and the impeachment contexts, is in contextualizing presidential action described later in the report. Particularly for impeachment purposes, what matters is the broad pattern, after all. And this conduct, while likely neither criminal nor impeachable on its own, shows a through-line of presidential engagement with and concern about the investigation. Not to put too fine a point on it, but Trump was concerned about the Russia probe in a hands-on kind of way almost from the day of his inauguration. He was engaging inappropriately with it at all times. As Mueller writes, “[T]he President’s intent in trying to prevent Sessions’s recusal, and in reaching out to Coats, Pompeo, Rogers and Comey following Comey’s public announcement of the FBI’s Russia investigation, is nevertheless relevant to understanding what motivated the President’s other actions toward the investigation.”
The first thing to say about this subsection is that it makes an important historical contribution on a matter that has borne significant question marks for the past two years: We now have a definitive factual account of the Comey firing, about which a great many facts were disputed, and about which the White House ran an active disinformation campaign with little precedent in the modern history of the country. We now know, in a black-and-white sort of way, what the president did, what he said about his motives and intentions at the time and to whom. And we now know as well how he recruited and manipulated the now occasionally sainted Rod Rosenstein—and how the latter allowed himself to be manipulated—to create a pretext for his action and how the White House represented that pretext as a reality. It's a wholly sordid episode. And to the extent we can read this without boiling outrage, it is only because we are lowering standards.
It is important to read this section in light of Subsection C, in which the president fumes at Sessions over his recusal, tries to get intelligence community leaders to make public statements that he did nothing wrong with respect to Russia, and tries to get Comey to say publicly that he was not under investigation. Here we pick up the story with Trump furious at Comey’s May 3, 2017, congressional testimony, in which he declined to answer questions about whether the FBI was investigating the president and said the idea that the FBI might have influenced the election made him “mildly nauseous.”
The salient facts here, at least to me, are the following:
Trump decided to fire Comey after the latter declined in his May 3 testimony to say the president wasn’t under investigation. The president became somewhat obsessed with the idea, discussing it with Steve Bannon—saying “the same thing each time—no fewer than eight times over two days.”
His principal goal does not appear to have been to shut down the Russia investigation but, rather, was to retaliate against Comey, against whom he was consumed with hatred over the Russia investigation—and particularly over Comey’s refusal to make a public statement about it.
The original termination letter stresses in the opening sentence that Comey had informed Trump three times “that I am not under investigation concerning the fabricated and politically-motivated allegations of a Trump-Russia relationship.”
When Rod Rosenstein wrote his memorandum supporting the firing on the basis of Comey’s handling of the Clinton email investigation, he knew it was a pretext. Trump asked him explicitly, Mueller writes, to include “the Russia stuff” in his memo supporting the firing. “Rosenstein responded that the Russia investigation was not the basis of his recommendation, so he did not think Russia should be mentioned. The President told Rosenstein he would appreciate it if Rosenstein put it in his letter anyway. When Rosenstein left the meeting, he knew that Comey would be terminated, and he told DOJ colleagues that his own reasons for replacing Comey were ‘not [the President’s] reasons.’”
The reports that the president boasted about the matter in the Oval Office to the Russian ambassador and foreign minister, saying he had relieved “pressure” on himself with respect to Russia with the move, are all true.
As a criminal matter, I foresee two potential problems with a case based chiefly on this fact pattern, and they are intertwined. First, if the president has an Article II defense about anything, surely it is about a core staffing matter like firing the FBI director. While I agree with Mueller that some degree of corruption of a decision like that would render it obstructive, I think it would have to be very clear that the decision was not merely bad and ill-motived but actively corrupt and lacking in any plausible alternative explanation for a prosecution to be viable. This brings me to the second problem, which is that, as Mueller acknowledges, Trump’s motives here are complicated. There’s definitely an element of wanting to stop the Russia investigation. But the dominant factor appears to have been vindictive anger at Comey for not saying something publicly about the investigation and Trump. Moreover, Trump seems to have known at some level, even as he talked about relieving pressure on himself to the Russian foreign minister, that firing Comey would not necessarily end the Russia investigation. As Steve Bannon wisely put it to him, in Mueller’s paraphrase, “he could fire the FBI director but could not fire the FBI.”
That said, is there evidence that the president was trying to block the investigation itself? Sure. As Mueller summarizes it,
Other evidence, however, indicates that the President wanted to protect himself from an investigation into his campaign. The day after learning about the FBI’s interview of Flynn, the President had a one-on-one dinner with Comey, against the advice of senior aides, and told Comey he needed Comey’s “loyalty.” When the President later asked Comey for a second time to make public that he was not under investigation, he brought up loyalty again, saying “Because I have been very loyal to you, very loyal, we had that thing, you know.” After the President learned of Sessions’s recusal from the Russia investigation, the President was furious and said he wanted an Attorney General who would protect him the way he perceived Robert Kennedy and Eric Holder to have protected their presidents. The President also said he wanted to be able to tell his Attorney General “who to investigate.”
In addition, the President had a motive to put the FBI’s Russia investigation behind him. The evidence does not establish that the termination of Comey was designed to cover up a conspiracy between the Trump Campaign and Russia: As described in Volume I, the evidence uncovered in the investigation did not establish that the President or those close to him were involved in the charged Russian computer-hacking or active-measure conspiracies, or that the President otherwise had an unlawful relationship with any Russian official. But the evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns. ... More broadly, multiple witnesses described the President’s preoccupation with press coverage of the Russia investigation and his persistent concern that it raised questions about the legitimacy of his election.
Finally, the President and White House aides initially advanced a pretextual reason to the press and the public for Comey’s termination. In the immediate aftermath of the firing, the President dictated a press statement suggesting that he had acted based on the DOJ recommendations, and White House press officials repeated that story.
The point is that the evidence here is mixed, and the president would have a viable defense that he was acting within his lawful power and not to impede the investigation but out of anger that Comey would not clarify its focus publicly with respect to him. If a criminal case were ever to be contemplated against Trump for obstruction, I suspect the Comey firing would not lie at its core but would feature in some broader obstructive pattern of conduct.
These distinctions may or may not be important as a matter of criminal law. As a matter of impeachment, they are utterly unimportant. I don’t know how anyone can read this section and regard the conduct described in it as meriting any kind of congressional toleration. It describes a frank abuse of power: a sustained demand for a wholly self-interested investigative outcome, a willingness to disrupt a critical institution to get that outcome and to retaliate against an official who would not deliver it, a willingness to set the entire apparatus of the White House to lying about the reason for the action, and the recruitment of senior Justice Department officials to create a pretextual paper trail to support it. I believed this was impeachable conduct at the time. The Mueller report reinforces that belief.
Indeed, while the question of the prudential wisdom of impeachment politically may be a hard one, I don’t think the impeachability of the conduct described in this section is even a close call. This is heartland impeachment material—the sort of conduct the impeachment clauses were written to address. And any member of Congress disinclined to support impeachment needs to grapple with the following question: If you take the position, either overtly or by averting your eyes, that this conduct is okay in a president’s relationship with the law enforcement apparatus of the country, what isn’t okay? What would a president have to do before you would say that political consequences aside, his conduct is intolerable morally and institutionally unacceptable to me as a member of a coordinate branch of government with ultimate oversight over presidential conduct?
This fact pattern, which concerns Trump’s order to White House Counsel Don McGahn to have Mueller fired, is one in which the evidence of criminality is actually stronger than the case for impeachment.
The basic facts Mueller reports are these: Trump became fixated on Mueller’s supposed conflicts of interest, despite being informed by staff that they were “ridiculous” and “silly.” In response to the Washington Post’s disclosure that the new office was investigating possible obstruction of justice, he then called McGahn twice at home over a weekend and directed him to have Rosenstein remove Mueller. McGahn decided to resign rather than carry out the order, but he was ultimately persuaded by Priebus and Bannon not to do so. The president did not raise the matter again, though he did make “repeated efforts to have McGahn deny the story.”
This incident is not, in my judgment, a stand-alone basis for an impeachment—though it might well be an aggravating factor or a part of a larger pattern of obstructive conduct with respect to the investigation that would form an article of impeachment. If you imagine this conduct in the absence of everything that came before it, unlike the conduct surrounding the Comey firing, one does not impeach the president for ordering something in the heat of a temper tantrum that then never happens and that gets sheepishly dropped later on.
As a criminal matter, however, the evidence here of obstruction of justice seems to me cleaner than with any of the prior episodes. Yes, there’s still the question of whether the president can obstruct justice in a facially valid exercise of his Article II powers with respect to the request to McGahn itself. But leaving that question aside for now, the application of the major obstruction elements is pretty easy.
According to Mueller, the president clearly ordered the firing of the special prosecutor. Mueller has no doubt that McGahn is credible on this point. McGahn’s account is broadly supported by phone records and by his actions after the supposed order. The nexus with a pending proceeding is also, by this point in the investigation, not subject to reasonable dispute. The FBI had sent a preservation order to the White House for documents; the president had been specifically warned by counsel that his greatest exposure lay in his interactions with the FBI over Flynn—meaning that he knew specifically that there was an investigation in which he personally had exposure. And the Post had reported the obstruction investigation publicly. Oh, yeah, and a special prosecutor had been appointed. There was no doubt that a proceeding was impending, to whatever extent it did not already exist.
Most importantly, the issue of the president’s motives and intent—in contrast to the muddiness of that question in some of the prior episodes—is crystal clear. The reason is that there is no other basis for the president’s attempted action other than to stymie the investigation. Trump was specifically advised that his stated concerns about conflicts were frivolous. Unlike with the Comey firing, where Trump was mad about Comey’s refusal to make a public statement and the action could be seen as retaliatory, there was no issue with Mueller other than the fact that he was running the investigation. What’s more, the action took place specifically in response to the news that the president was, in fact, under investigation after all. As Mueller writes, “The evidence accordingly indicates that news that an obstruction investigation had opened is what led the President to call McGahn to have the Special Counsel terminated.” Trump’s subsequent efforts to get McGahn to deny the story, as Mueller writes, “are contrary to the evidence and suggest the President’s awareness that the direction to McGahn could be seen as improper.” Intent here is super-clear.
I think the only defense of the president’s conduct as a criminal matter would have to rest entirely on a purist Article II theory of presidential power. If one does not accept the hard version of Barr’s view of Article II and obstruction, it’s very hard for me to see how this episode is not an obstruction of justice.
This is a particularly ugly section. The more one thinks about it, the worse it gets—whether as a matter of criminal law or as a matter of impeachment.
The facts are simple enough. The president asked Corey Lewandowski to convey a message to Sessions, a message he dictated and in which he asked Sessions to reassert control over the special counsel investigation, to make a speech in which he would declare that the president didn’t do anything wrong and that the special counsel investigation of him was “very unfair,” and to limit the special counsel investigation to interference in future elections. A month later, he followed up with Lewandowski and asked whether the message had been delivered. He then proceeded to attack Sessions publicly in an interview with the New York Times and demand that Priebus obtain his resignation. Lewandowski asked a White House staffer to deliver the message in his place; the staffer in question, Rick Dearborn, never did so.
There are a few important factors to highlight here, all of them aggravating.
First, Lewandowski was not a government employee. This was thus not an example of the president exercising Article II powers to manage the executive branch. Indeed, Trump very specifically did not go through McGahn or Rosenstein. He went outside of the executive branch to ask a private citizen to lobby the attorney general on his behalf for substantive outcomes to an investigation in which he had the deepest of personal interests.
Second, the step he asked Lewandowski to press on Sessions was frankly unethical—actionably so, in fact. Sessions was recused from the Russia probe because he had an actual conflict of interest in the matter. Model Rule 1.11(d) of the ABA’s Model Rules of Professional Responsibility states that “a lawyer currently serving as a public officer or employee ... shall not ... participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing.” In other words, the president of the United States recruited a private citizen to procure from the attorney general of the United States behavior the attorney general was ethically barred from undertaking.
But it gets worse, because third, Trump did not merely seek to get Sessions to involve himself in a matter in which he was recused. He wanted him both to limit the scope of the investigation (to future elections only) and to declare its outcome on the merits with respect to Trump himself. This action would have quite literally and directly obstructed justice. Limiting the jurisdiction of the special counsel to future elections would have, after all, precluded the IRA and GRU indictments. It would have precluded the prosecutions of Manafort, Cohen, Flynn, Papadopoulos and Gates. There is no question, in other words, that the president’s act was obstructive and no question either that it had a close nexus to pending proceedings; the existence of grand jury proceedings was by this time, in Mueller’s words, “public knowledge.”
As a criminal matter, this fact pattern seems to me uncomplicated: If true, it is unlawful obstruction of justice. Full stop.
There is not, I think, any plausible defense here based on the Article II authorities of the president. Article II does not empower the president to recruit private citizens to procure ethical misconduct from government lawyers by way of stopping federal investigations. There is also no real complexity here with respect to Trump’s intent. As Mueller reports, “Substantial evidence indicates that the President’s effort to have Sessions limit the scope of the Special Counsel’s investigation to future election interference was intended to prevent further investigative scrutiny of the President’s and his campaign’s conduct.”
Thinking in the language of impeachment, as well, this matter seems particularly grave—and stark. Seen through this frame, the analysis seems more or less the same. Does Congress think it’s acceptable for the president to behave this way?
Nor will it do here for the president’s defenders to point out that the message was never conveyed. For one thing, it’s not at all clear that Trump knew that. For another thing, so what if it was never conveyed? The president sought to have his attorney general violate his crystal-clear ethical responsibilities in order to curtail an investigation in which Trump had a deep personal interest. As best as I can tell from Mueller’s text, there are no mitigating factors here.
This section reflects gross presidential conduct, but it does not reflect a plausible obstruction of justice case as a criminal matter, and I think it so pales in comparison to other abuses of power the report documents that it will be a rounding error in any impeachment discussion as well. I will therefore be brief.
The incident involves the president’s handling of the impending revelation of the Trump Tower meeting and his dictation of the infamous statement describing the meeting as about adoptions.
The basic outline is that Trump learned of the existence of the emails arranging the meeting and that they were being given to Congress. He resisted making them public, believing for some reason that they would not leak. He then created a statement for his son that left out reference to the purpose of the meeting—which was to receive dirt on Clinton. He orchestrated, in other words, a lie about a matter of great public moment, and he did it to tamp down the consequences of L’Affaire Russe for him.
It’s certainly bad, but it seems to be principally about lying to the public, not obstructing a proceeding. As Mueller acknowledges, the evidence “does not establish that the President took steps to prevent the emails of other information about the June 9 meeting from being provided to Congress or the Special Counsel.” Indeed, the incident appears to be more about public relations than about engagement with law enforcement. And there’s not a lot of evidence that the president’s intent here was to obstruct, rather than to mislead the American public. That's not a character reference, but it is a defense.
If I were a prosecutor, I would look elsewhere. If I were Congress, I would as well.
This section adds mostly volume and duration, and therefore texture, to the more acute episode described in subsection F. It describes a sequence of events, from July 2017 through 2018, in which Trump sought to get Sessions to “unrecuse,” take control of the Russia investigation and initiate investigation of Hillary Clinton.
With one important exception, the major import of this section, whether one is thinking in criminal terms or in impeachment terms, lies in its interaction with subsection F. That is, the dramatic misconduct described in that section with respect to Sessions did not stop. After the initial effort to get Sessions to limit the investigation failed, the president continued to press him, publicly and privately, for more than a year. If you’re imagining this in the criminal context, in other words, don’t think of this as a distinct fact pattern. Think of it, rather, as a long pattern of conduct toward the attorney general in which the president sought to induce him to unethically reassert control over the Russia probe. He did it through means that involved his Article II management powers; he did it through back-channel communications through third parties; and he did it through a long-term campaign of public statements. In the criminal context, this aggregate pattern strikes me as one of the most powerful obstruction cases I can construct out of the Mueller report, but this section is only a piece of it.
Thinking in the impeachment context, the analysis is similar. This section contains a piece of one of Trump’s greatest abuses of power: a corrupt effort to induce a subordinate to control and limit an investigation of him.
It also contains something else that I believe to be a wholly independent abuse of power, though one Mueller does not disentangle from the attempt to get Sessions to reassert control of the Russia investigation: Trump was also trying to induce Sessions to investigate his political opponents. Again, he did so both publicly and privately.
This is not obstruction of justice in any criminal sense. It’s rather the opposite of obstruction of justice; it’s the initiation of injustice. So I don’t think it sounds in criminal law. But it is molten-core impeachment territory. Consider: The president of the United States was trying to induce the attorney general of the United States to initiate criminal investigation based on no known criminal predicate against a private citizen whom he happened to dislike. This was not rhetoric. It was not a joke. And if it is not unacceptable to Congress, then no member of Congress can say he or she was not warned when some attorney general in the future complies with such a presidential request—including to launch an investigation against such a member of Congress.
This is another one of the more compelling discrete episodes for criminal obstruction of justice purposes. It is less important for impeachment purposes.
The facts are pretty simple: After the news broke that Trump had sought to get McGahn to have Mueller fired, Trump sought to get McGahn to deny the story. He also sought to get him to create an internal record denying the story. McGahn refused.
The attempt to get McGahn to write an internal memo disputing the story is the critical fact here. “The President then directed [Rob] Porter to tell McGahn to create a record to make clear that the President never directed McGahn to fire the Special Counsel,” Mueller writes. “[T]he President said he wanted McGahn to write a letter to the file ‘for our records’ and wanted something beyond a press statement to demonstrate that the reporting was inaccurate.”
But for this fact, the president’s conduct could be defended as a mere effort to lie to the press (as in subsection G). But one doesn’t order the creation of false internal documents for purposes of denying a published story. So the question is, first, whether Trump’s “repeated efforts to get McGahn to create a record denying that the President had directed him to remove the Special Counsel” would have “the natural tendency to constrain McGahn from testifying truthfully or to undermine his credibility” if he told the truth. The second question is whether such a corrupt outcome was specifically intended by the president.
Mueller acknowledges that there is “some evidence” that the president simply thought the story was wrong and was proceeding on his memory. But Mueller is pretty clear that the weight of evidence “cuts against that understanding,” though—as always—he stops short of making that judgment explicit. Not the least reason the weight does not favor that view is that McGahn’s underlying story, as Mueller previously concluded, was amply supported by the evidence and it's hard to believe the president would simply have forgotten an effort to fire Mueller. As to the president’s intent, Mueller is pretty unabashed: “Substantial evidence indicates that in repeatedly urging McGahn to dispute that he was ordered to have the Special Counsel terminated, the President acted for the purpose of influencing McGahn’s account in order to deflect or prevent scrutiny of the President’s conduct toward the investigation.”
Assuming that one believes this could be proved beyond a reasonable doubt—and both Porter and McGahn would be important prosecutions witnesses here—it is not hard to imagine this fact pattern as a count in an indictment.
Even as I write these words, my phone flashes the “Breaking News” from the Wall Street Journal that “Trump denies he asked then-White House counsel Don McGahn to fire Robert Mueller, contradicting a detailed account in Mueller’s report.” The story concerns these tweets:
— Donald J. Trump (@realDonaldTrump) April 25, 2019
— Donald J. Trump (@realDonaldTrump) April 25, 2019
— Donald J. Trump (@realDonaldTrump) April 25, 2019
The episode is less important for impeachment purposes, though I have no doubt it would support an impeachment article for either obstruction or abuse of power. The reason is that impeachment, unlike criminal law, lives in big themes, not in discrete micro-events. The relevant point for criminal law purposes is always the interface between a fact pattern and the specific elements of a crime. For impeachment purposes, however, the relevant point is the big picture question of whether presidential conduct is acceptable or not. The marginal fact that Trump appears to have tried to induce McGahn to create a false internal document does a lot of work on the criminal side; on the impeachment side, however, it tells us relatively little. It is an example. It is an item within an article, not an article itself.
This section is marred by redactions, which appear to relate to the Roger Stone prosecution. The redactions chiefly affect a single part of the discussion, however, a part that is redacted in its entirety for “Harm to Ongoing Matter.” The discussions of the Flynn and Manafort matters are untouched, so I will focus on them and ignore [REDACTED], whom I presume to be Stone.
Like the material described in subsection I, these incidents are pretty easy to map onto the obstruction laws—though a little more complicatedly so, since some of it was done by the president’s lawyers and verifying whether Trump knew of or directed their conduct would require breaching the attorney-client privilege. Some of the conduct, however, took place in public or otherwise involved unmediated presidential action. Unlike the material described in subsection I, the behavior described here reflects a very ugly and dangerous pattern and so should loom larger for impeachment purposes.
The most relevant facts are these: While Flynn was under investigation, knowing he had lied to the FBI, the president both said warm things about him publicly and had intermediaries reach out to him “to pass messages to Flynn conveying that the President still cared about him and encouraging him to stay strong.” When Flynn began cooperating and left the Joint Defense Agreement and his lawyers informed the president’s counsel that he could no longer share information, however, “the President’s counsel was indignant and vocal in his disagreement” and “said he interpreted what they said to him as a reflection of Flynn’s hostility towards the President.” With respect to Manafort, the pattern is clearer still. The president’s lawyers told Manafort, or at least so Manafort told Gates, that the president was “going to take care of us.” As Manafort’s trial progressed, Trump publicly flirted with the idea of a pardon and blasted the prosecution. He praised Manafort’s bravery and refusal to flip. And he commented on the trial during the jury’s deliberations.
I argued at the time that the president’s conduct toward Manafort might violate the witness tampering statute. Reading the Mueller report, I have little doubt on the matter. As Mueller writes, “[T]here is evidence that the President’s actions had the potential to influence Manafort’s decision whether to cooperate with the government.” They also “had the potential to influence the trial jury.” As to the president’s intent, Mueller is blunt: The evidence “indicates that the President intended to encourage Manafort to not cooperate with the government.” It “supports the inference that the President intended Manafort to believe that he could receive a pardon, which would make cooperation with the government as a means of obtaining a lesser sentence unnecessary.” Some evidence, Mueller notes, “supports a conclusion that the President intended, at least in part, to influence the jury.”
I see no plausible Article II defense here. Yes, the president has the power to pardon and some of the communications here involved public contemplations of the use of that power. But the allegation here is not that a facially valid exercise of Article II power was corrupt or ill-motived. The argument is that a series of communications, public and private, were corrupt efforts to influence a witness and a jury. Those figures are not part of the executive branch. Had the president publicly offered Manafort a pardon in exchange for money, there would be no question he had committed bribery. The allegation here is very similar; it is the suggestion that he publicly hinted that he would grant a pardon in exchange for something he wanted, to wit, Manafort’s silence.
And notably, Trump got what he wanted in this case. Manafort did not end up cooperating to Mueller’s satisfaction. Indeed, Mueller concluded that he breached his plea deal by failing to cooperate and by lying to investigators. So the reality here may well be that the president’s obstructive conduct did, in fact, obstruct the investigation. The president hinted that Manafort should not “flip” and that he would take care of him. And Manafort acted in a fashion consistent with his relying on those assurances. None of this is authorized in any sense by Article II of the Constitution.
It is also a grotesque abuse of power for impeachment purposes. The spectacle of the president of the United States publicly and repeatedly urging witnesses not to cooperate with federal law enforcement and entertaining the notion of using his Article II powers to relieve them of criminal jeopardy or consequences if they do not is one of the most singular abuses of the entire Trump presidency. Again, one has to ask of Congress what is unacceptable in a president’s interaction with an investigation if this conduct is not impeachable?
The president’s interactions with Michael Cohen are similar to his conduct toward Manafort, save that they are more extensive and, because Cohen reached a cooperation deal with prosecutors, they also took on a vindictive and threatening tone at some point. What’s more, in Cohen’s case—unlike in Manafort’s—Trump was to some degree involved in the underlying conduct.
Trump was aware that Cohen in preparing his statements to Congress was keeping to the “party line” on his involvement in the Trump Tower Moscow negotiations, which is to say lying about the matter. While Trump did not, in Mueller’s account, play any direct role in coaxing Cohen to lie, his personal lawyer did remind Cohen that he was protected under the Joint Defense Agreement and would not be if he “went rogue” and that the president loved him and had his back “if he stayed on message.” The president’s counsel also helped edit the false statement. Over 10 days of drafting, “phone records reflect that Cohen spoke with the President’s personal counsel almost daily.” The day before it was submitted, they had “numerous contacts by phone.” The president’s lawyer told Cohen that “‘his client’ appreciated Cohen, that Cohen should stay on message and not contradict the President, that there was no need to muddy the water [by including more information], and that it was time to move on.” Cohen recalled “speaking to the President ... generally about how he planned to stay on message in his testimony.” And the president’s counsel later “told him that the President was pleased with [his] statement that had gone out.” Cohen spoke with the president’s counsel immediately after his testimony before each house of Congress. So it’s safe to say that the president was aware of the fact that Cohen had testified falsely and was pleased with his performance, though as Mueller puts it, “the evidence available to us does not establish that the President directed or aided Cohen’s false testimony.”
After the search warrants were executed against Cohen, the president called him, encouraged him to “hang in there” and “stay strong.” He sent messages through others as well that he loved Cohen and had his back. The president’s lawyers told Cohen he should stay on message and all would be well. There were other back-channel and direct communications with the president’s lawyers that were similar in character; there was even a private discussion of a pardon with the president’s counsel. And all the while, Trump was tweeting and making laudatory comments about Cohen, expressing confidence that he wouldn’t “flip.”
And then Cohen reached his deal and everything changed. At that point, the president began publicly suggesting that Cohen’s family members had committed crimes and urging a tough sentence for him.
It is hard to escape the view that this was a sustained effort first to encourage a witness not to cooperate and then to retaliate against him for reaching a plea deal. As Mueller puts it, with characteristic understatement, “The evidence concerning this sequence of events could support an inference that the President used inducements in the form of positive messages in an effort to get Cohen not to cooperate, and then turned to attacks and intimidation to deter the provision of information or undermine Cohen’s credibility once Cohen began cooperating.”
The evidence of malign intent here seems positively overwhelming. If there’s a defense of the president on the criminal side, it is that so much of the activity took place through the offices of the president’s personal counsel and it’s impossible to know without breaching the attorney-client privilege to what extent Trump was aware of or directing those actions. This may create a barrier to an actual criminal case, though the volume of Trump’s own overt actions is pretty high here too.
This point means nothing for impeachment purposes, however, where Congress is perfectly entitled to impute to the president the sustained conduct of his lawyers on his behalf—particularly since that conduct was wholly in keeping with the president’s own behavior and statements during the same period. If the president wants to argue that he had no idea such messages were being passed, that he had nothing to do with them, he should feel free to waive the privilege and let his lawyers testify about their actions and his involvement with them.
I take a significant measure of personal satisfaction from this brief section, both on my own behalf and on behalf of Lawfare more generally. The discussion here raises cross-cutting issues that affect a number of the fact patterns described in the previous subsections. Several of them are matters we flagged and discussed on Lawfare early on, long before they were matters of widespread debate. These include the interaction of the obstruction statutes with Article II, a matter that has been the subject of a great deal of writing and debate on this site. It also includes the fact that a bunch of the conduct at issue took place in public view, an issue that we flagged months ago and have discussed multiple times. Perhaps most importantly, it includes Mueller’s claim that it is important to see these events not in isolation but in terms of a potentially obstructive pattern. “Although the events we investigated involved discrete acts ... it is important to view the President’s pattern of conduct as a whole. That pattern sheds light on the nature of the President’s acts and the inferences that can be drawn about his intent.” This is a point a number of writers on Lawfare, particularly Bob Bauer, have made repeatedly. Allowing myself a moment of personal privilege, I emerged from reading this report as a whole profoundly proud of this site and the debates we host and the diverse group of people who choose to write for us. I am very grateful to all of those people.
Mueller makes one additional global observation in this section that I am embarrassed to admit had never occurred to me. He describes “two distinct phases” of presidential behavior, reflecting “a possible shift in the President’s motives.” In the first phase, Trump’s motivations were dominated by the desire to make publicly clear that he was not under investigation. By contrast, in the phase after the obstruction investigation became known and it was clear that he was under investigation, there was a “significant change in the President’s conduct." In this second phase, the “President launched public attacks on the investigation and individuals involved in it who could possess evidence adverse to the President, while in private, the President engaged in a series of targeted efforts to control the investigation.”
I think what Mueller is trying to say here is that the evidence of criminal intent on the president’s part is far stronger after the advent of the obstruction investigation than earlier on, when his motives were genuinely mixed and were dominated by a desire to clarify his own position publicly. The subtle message is that to the extent there’s a criminal case, it’s not in the Comey firing. It’s not in the abuses that lie purely in the management of the executive branch. Those are for Congress to evaluate in the political space. The prosecutable criminal case, rather, lies in the areas where Trump acts most like a garden-variety criminal eager to induce witnesses to behave toward a federal investigation in a fashion that serves his interests. In the areas in which Josh Blackman (in a number of articles on this site) or William Barr would argue that the Constitution precludes application of the obstruction statutes to the president, Mueller seems to be saying that the evidence of intent may be muddy for some of the precise reasons Barr and Blackmun argue the obstruction laws shouldn’t be applied at all: There are mixed motives, and it’s hard to distill corrupt intent from noncorrupt intent. By the time the president is soliciting non-executive branch employees to induce unethical conduct on the part of the attorney general or pressing witnesses not to cooperate with federal prosecutors, however, things get pretty clear.
The final section of the Mueller report is an analysis of the obstruction statutes in relation to Article II of the Constitution in response to arguments submitted to the office by the president’s lawyers. The section responds to some statutory defenses as well, but as the president's arguments on these points are trivial, the response is not especially interesting. The constitutional issues are not trivial, and the response is very interesting. Because Barr made similar arguments in his now-famous memorandum to Rod Rosenstein before his nomination, the section also functions—oddly—as an argument with the attorney general.
As I noted in the previous section, we have discussed these questions at great length on this site, and I want to thank Josh Blackman for being my sparring partner in exploring their parameters. I don’t want to go into these questions deeply here, but I will make a few discrete points about Mueller’s understanding of the relationship. The first is that Mueller's position is largely consonant with my own view of the matter. Here’s how I described the application of the obstruction laws to the president back in December 2017 in an exchange with Blackman: “It’s not clear to me why a facially valid action taken in the service of managing the Executive Branch, taken with specific intent to commit a crime in order to influence a judicial proceeding, can never violate statutes that endeavor to protect the judicial function.” I wrote at the time that,
My bottom line is that at some point, good faith matters. At some point, specific intent matters. That’s what the statutes all say. And I don’t believe the President is entirely outside of their strictures.
What is that point? I think it is defined by the President’s oath of office and the Take Care Clause. That is, as long as the President is operating plausibly within the boundaries of the Take Care Clause, which requires that he “take Care that the Laws be faithfully executed,” and within the parameters of his oath to “faithfully execute” the duties of President, he probably cannot be said to act with the requisite criminal intent to violate the obstruction statutes with an otherwise lawful act of managing the Executive Branch. But I do think it’s at least theoretically possible for the President to issue orders to the Executive Branch that are so outside of the bounds of those clauses that a reasonable jury could lawfully regard him as acting with the requisite mens rea for conviction under one or more of the statutes.
This is very close to the position that Mueller takes in this section, though he takes a slightly different route to more or less the same place. The obstruction laws, he writes, can be constitutionally applied to the president, because they prohibit only “corrupt” conduct and “[a] general ban on corrupt action does not unduly intrude on the President’s responsibility to ‘take Care that the Laws be faithfully executed.” Rather, “the concept of ‘faithful execution’ connotes the use of power in the interest of the public, not in the office holder’s personal interests.” In other words, I argued that the president can be said to violate the obstruction laws only to the extent that he is violating the Take Care Clause, whereas Mueller is saying that the corrupt intent element of the offenses removes any violative conduct from the ambit of the Take Care Clause. I'm not sure the arguments are different in practice. So, yes, I broadly agree with Mueller’s view here, having articulated something very much like it a year and a half ago.
A few additional observations. First, if one accepts Mueller's reading, it doesn't mean that the concerns about applying the obstruction statutes to the president are illegitimate or wrongheaded; it means that they are fundamentally evidentiary questions, not constitutional questions. That is, the burden on the prosecutor to prove the intent element is high. He has to show proof beyond a reasonable doubt that the president’s intention and motives lay outside of any plausible understanding of his duties. As the preceding discussion shows, that is hard in situations in which motives may be mixed. I very much doubt prosecutors could prove Trump’s motives in the early phases of Volume II to the satisfaction of a unanimous jury. The key point is that they are not precluded as a matter of law from trying.
Second, in practice, less turns on this question than people seem to think. The reason is that normal presidents do not dance on the line of obstruction. And Trump went so far over it, and in matters that have nothing to do with his Article II powers, that if he is ever prosecuted (a decision for a future administration), prosecutors will be able to avoid this defense by focusing on areas where Article II simply gives no succor. Assuming the facts alleged in this report can be proved beyond a reasonable doubt, this is a target-rich environment, and a reasonable prosecutor will focus on those areas that are least freighted with arguments that Trump’s actions constituted legitimate exercises of his Article II authorities.
Finally, this argument has no bearing at all on the impeachment question. It is a perfectly reasonable judgment for Congress to make that even if Mueller is wrong (and I am wrong) and the obstruction statutes cannot be applied to facially valid expressions of presidential power, Congress still reserves the right to judge. And it is perfectly within Congress’s authority to impeach on the strength of what it deems to be corrupt exercises of legitimate power or even noncorrupt but simply deranged exercises of presidential power. The Comey firing is a good example. If I were a member of Congress, I would not care a whit whether Trump fired Comey for reasons that technically meet the statutory requirement of corrupt intent. If he was willing to throw the FBI into turmoil because he was in a rage over Comey's declining to say publicly that Trump wasn’t under investigation, I would have no doubt that this act too is a valid basis for his impeachment.
My point is that the legalism of this section matters a great deal to criminal and constitutional law discussion. And it matters not at all to the discussion of what we should do about Donald Trump—at least not until he is out of office and we once again have to think about how this evidence interacts with the criminal laws.
Let me repeat that: It matters Not. At. All.
What is called for now is political judgment. Are we prepared as a society to define Trump’s conduct as unacceptable for a president? Are we prepared to accept the consequences and risks of doing so? And critically, are we prepared to accept the consequences and risks of not doing so?