Im-Politic: An Impeachment Red Herring from House Judiciary

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Constitution, Democrats, executive privilege, House Judiciary Committee, Im-Politic, impeachment, Jerrold Nadler, Mueller Report, Nancy Pelosi, Robert Mueller, Special Counsel, Trump

You know the Shakespearian expression, “The lady doth protest too much, methinks”? A wonderful way of describing someone who makes an argument that’s so over-the-top that it undercuts credibility?

I couldn’t help but think of it while reading the new report from the House Judiciary Committee’s Democratic staff on “Constitutional Grounds for Presidential Impeachment.”

I’m not talking about the substantive credibility of the case for President Trump’s impeachment (and/or removal from office). Instead, I’m talking about the case’s political credibility. Because this new study makes nothing so clear as the belief of the Committee’s majority Democratic members that they haven’t yet convinced enough of the American people that their efforts to oust the President are justified. And no doubt this conclusion applies to numerous others in the party’s House majority and in the Senate.

No one can have any legitimate issue with the Committee releasing such a report. As Chairman Jerrold Nadler of New York notes, the full committee staffs put out similar studies in connection with the 1974 impeachment proceedings against President Richard Nixon, and those against President Bill Clinton in 1998. (One important difference: Unlike the previous reports, this new study was the product only of one party’s staff.) And scholarship has of course advanced since then.

But in the process of “Addressing Fallacies About Impeachment,” the Democratic staff created some itself – that impeachment proponents are maintaining that impeachment “is not part of democratic constitutional governance”; that because a presidential election is coming up, a chief executive “is entitled to persist in office after committing ‘high Crimes and Misdemeanors’”; and that such a President’s voters consider themselves “entitled to expect that their preferred candidate will do so.”

These arguments are transparently fallacious because none of the President’s backers has questioned the legitimacy of impeachment per se, and none believes that, whatever the political calendar, any office holder deserves to keep on serving after committing impeachable offenses.

To use an obvious but instructive example, just ask yourself: If Mr. Trump had committed a crime in public view – e.g., stood “in the middle of Fifth Avenue and [shot] somebody,” as he once suggested during his campaign, in a (typically) hyperbolic efofrt to describe his popularity with his base – does anyone seriously think that even the staunchest Trump-er would respond (if there were no extenuating circumstances, like self-defense) “Nope, nothing impeachable here. Let’s just let him serve out his term.)

(Interestingly, outside the impeachment context, the President’s lawyers have argued that Mr. Trump, or any President, couldn’t be criminally indicted for such an act while in office, but that’s a separate issue from impeachment.)

What Trump supporters are saying is that, after literally years of investigations – by Congress and by a Special Counsel (Robert Mueller) whose integrity no Trump opponent questioned – no conclusive evidence of impeachable transgressions has emerged. And that given the approach of a new election that would give the public a chance to decide the President’s fitness for office (an opportunity that was not available for second-term Presidents Nixon and Clinton), the best course for the country’s sake is moving on from the current proceedings. In other words, they’re making a political and policy argument, not a Constitutional argument.

For example, the Mueller report specifically concluded that “the evidence was not sufficient to charge that any member of the Trump Campaign conspired with representatives of the Russian government to interfere in the 2016 election” and, more controversially, regarding obstruction of justice allegations:

“[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”

As numerous impeachment backers have pointed out, in his post-report press conference, Mueller did note, in the course of explaining the substantive and Constitutional obstacles to accusing a sitting President of criminal behavior, that “the Constitution requires a process other than the criminal justice system to formally accuse a sitting President of wrongdoing.” And of course that was a reference to impeachment.

But neither Mueller nor his report has stated that Mr. Trump actually has committed an impeachable defense, or explicitly said that enough evidence exists to warrant an impeachment inquiry. The Special Counsel simply observed that, if Congress has enough further problems with the President’s actions, it has a Constitutionally permitted avenue for pursuing these concerns.

It’s true that Congress has not yet had the chance to question under oath current and former administration officials who might be able to provide first-hand evidence of impeachable Presidential wrongdoing, and that the initial obstacle has been Mr. Trump’s refusal to permit them to testify.

That opposition could well stem from the President’s fear of what these figures might say. But it could also stem from legitimate concerns about executive privilege – a President’s recognized right, originating in the separation of powers created by the Constitution, to keep under wraps, including from Congress, internal deliberations of his or her administration.

This privilege is by no means absolute, and such Executive-Legislative branch disputes can be refereed by the courts. But Congress’ Democrats have declined to go this route either to compel such testimony, or free up impeachment-relevant records. In this regard, therefore, they so far have no one to blame for the absence of a “smoking gun” but themselves.

So why are the Judiciary Democrats serving up this red herring? I’m not a mind-reader, but Congress’ Democratic leaders acknowledge that they’re following the polls, and they show plain as day that, since late October, public support for impeachment and removal has fallen steadily – to the point where it’s clearly under 50 percent and still shrinking. And some evidence shows that the numbers are worse for the Democrats on this issue in key presidential election battleground states and Congressional districts crucial to their continued control of the House.

I’m not questioning whether House Judiciary Democrats, or any other Trump opponents, sincerely believe that the President has committed impeachable offenses, or whether they view the evidence as clearcut and even overwhelming. But the new Judiciary report’s baseless charge Trump supporters would oppose impeachment under any circumstances is strong evidence that, in this ultimately political debate, they’re far from making the political case.

Im-Politic: ABC’s Stephanopoulos Peddles Fake News on Mueller and Obstruction

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ABC News, Attorney General, Corey Lewandowski, Deputy Attorney General, Don McGahn, election 2016, George Stephanopoulos, Im-Politic, Jeff Sessions, Justice Department, Mueller Report, obstruction of justice, Robert S. Mueller III, Rod Rosenstein, This Week, Trump, Trump-Russia, White House Counsel, William P. Barr

The trade wars and resulting uproar have of course intensified lately due to President Trump’s threats to tariff Mexican imports to improve Mexico’s performance in helping ease the border crisis, and a New York Times report that his administration was mulling imposing levies on Australia in response to a surge in its aluminum exports to the United States.

But those developments – plus a terrific story in the Japanese press on metals tariffs that I’ll be posting about shortly as well – need to take a back seat today on RealityChek to a flagrant piece of fake news concerning the Mueller report’s conclusions propagated by a major broadcast media anchor that urgently needs to be debunked.

The culprit here is George Stephanopoulos, a top aide to Bill Clinton both during his first presidential campaign and his first term in the White House. The fake news involves his claim, made on yesterday’s This Week program, that in his report on Russian election interference and the responses of President Trump and his aides, the former Special Counsel Robert S. Mueller “laid out four incidents in the obstruction of justice section of the report that met all three criteria for obstruction of justice — an obstructive act, connection to an investigation, corrupt intent.”

His clear intimation was that Attorney General William P. Barr overlooked this major evidence and that his own decision (made in conjunction with his then Deputy, Rod Rosenstein, who decided to authorize a Special Counsel investigation of the above matters in the first place) to decline indicting the President was a transparently political effort to let Mr. Trump off the hook.

In fact, however, not only did the Mueller fail to identify four such incidents. The single set of incidents that could possibly qualify as an obstruction charge slam dunk – the President’s alleged efforts to remove Mueller himself as Special Counsel – was awfully weak beer.  Stephanopoulos might have two other groups of incidents in mind as well, but the case for so describing them is even feebler.

Before we proceed, however, keep in mind that in order to produce an obstruction conviction, a any prosecutor needs to convince a jury, as with all criminal trials, that the defendant is guilty “beyond a a reasonable doubt.” In addition, in order to decide to indict or to recommend an indictment, a government prosecutor must decide that “the admissible evidence will probably be sufficient to obtain and sustain a conviction….”

As I noted in my May 30 post, the Mueller report found “substantial evidence” that Mr. Trump committed obstructive acts in efforts to have Mueller fired (Vol. II, pp. 87 and 88). Ditto for the “connection to an investigation” and “corrupt intent” criteria for obstruction charges. (Vol. II, pp. 88-90).

But as I also noted, “even the substantial evidence [on the allegedly obstructive act count] simply ‘supports a conclusion.’ And there may be less to that conclusion than meets the eye. For couldn’t the presidential order to [then White House Counsel Don] McGahn to call Rosenstein have reflected…concerns about Special Counsel team conflicts of interest?”

Regarding the critical matter of intent, Mueller wrote (Vol. II, p. 89) that “Substantial evidence indicates that the President’s attempts to remove the Special Counsel were linked to the Special Counsel’s oversight of investigations that involved the President’s conduct- and, most immediately, to reports that the President was being investigated for potential obstruction of justice.”

That verb “indicates,” though, is pretty wishy-washy, especially considering the (properly) tough standards long established by U.S. criminal law and Justice Department policy for bringing an obstruction charge. Why didn’t Mueller write that this substantial evidence “shows” or “demonstrates” that these Mueller-removing actions were linked to his ongoing investigation, which threatened the Trump presidency?

The first of the two other possible slam-dunk groups of incidents entails the President’s efforts to curtail the Mueller investigation (as opposed to simply firing the Special Counsel). This episode centers around Mr. Trump’s decision to send former campaign aide and frequent (unofficial) confidant Corey Lewandowski on a mission to tell then Attorney General Jeff Sessions to end the existing investigation into election 2016 and specific Trump-related matters, and concentrate his efforts on whatever foreign meddling might be threatening upcoming elections.

The second such group of events consist of other attempts made by Mr. Trump to direct Sessions to take over the Special Counsel investigation.

The report’s wording convince me, anyway, that Mueller believed that the Lewandowski-related incidents met the obstructive act and link to an ongoing investigation standards. Plenty of evidence is presented regarding intent as well.

But at this juncture, it’s necessary to point to other intent-related considerations that we know were influencing Mueller’s evaluation of these events. Specifically, as Mr. Trump has continually observed, the Special Counsel (Vol, I, p. 9) found no underlying crime (that candidate Trump or any member of his campaign either acted “as an unregistered agent of the Russian government or other Russian principal” or “conspired with representatives of the Russian government to interfere in the 2016 election”). Nor, even though this activity would not constitute a crime, did the investigation “establish that members of the Trump Campaign” even “coordinated with the Russian government in its election interference activities.” (Vol, 1, p. 2).

Although, as Barr noted in his March 24 letter to Congress announcing his decision not to indict Mr. Trump, the absence of an underlying crime does not preclude charging a defendant with obstruction, this absence “bears upon the President’s intent with respect to obstruction.” In other words, as I wrote on May 30, and as Barr made clear in a May 17 interview, Mr. Trump’s actions reflected his belief – which was both sincere and factually grounded – that he was being framed.

And guess what? Mueller agrees! On Vol. I, p. 7, his report states:

“[U]nlike cases in which a subject engages in obstruction of justice to cover up a crime, the evidence we obtained did not establish that the President was involved in an underlying crime related to Russian election interference. Although the obstruction statutes do not require proof of such a crime, the absence of that evidence affects the analysis of the President’s intent and requires consideration of other possible motives for his conduct.”

As for the Trump efforts to ensure that his then Attorney General take over the Mueller investigation, the report doesn’t even come to any identifiable conclusion about whether any obstructive acts were committed. (Vol. II, p. 112)

The only other group of incidents that might legitimately qualify for the “slam dunk” category centered on Trump’s order to McGahn to deny that he had asked him to firer Mueller.

At the same time, Mueller’s conclusion as to whether any obstructive act was committed here is anything but clear, either. As the report notes (Vol II, p. 118):

“The President’s repeated efforts to get McGahn to create a record denying that the President had directed him to remove the Special Counsel would qualify as an obstructive act if it had the natural tendency to constrain McGahn from testifying truthfully or to undermine his credibility as a potential witness if he testified consistently with his memory, rather than with what the record said.”

There is some evidence that at the time the New York Times and Washington Post stories [reporting that such developments took place] were published in late January 2018, the President believed the stories were wrong and that he had never told McGahn to have Rosenstein remove the Special Counsel.”

In other words, the report is acknowledging these could have represented another group of Trump actions motivated by the sincere belief that he was being framed.

At the same time, the report states that “Other evidence cuts against that understanding of the President’s conduct.”

In sum, it’s obvious that contending that Mueller concluded that Mr. Trump was robustly indictable for even one of these sets of incidents rests on the shakiest of ground. Contending that the report found four such sets is nothing less than fiction. And the insinuation of a Barr cover-up is completely beyond the pale. Indeed, taken together, and given the various legal hurdles he needed to overcome to make a legitimate indictment recommendation, it’s obvious why – aside from the Justice Department policy barring the indictment of a sitting President – Mueller didn’t report to Barr that solid grounds existed even for a single obstruction charge.

In fact, as I also noted on May 30, the following was the most obstruction-friendly conclusion contained in the Mueller report – and it covers the above events related to the attempted Mueller firing:

“[T]here [is] a sufficient factual and legal basis to further investigate potential obstruction-of -justice issues involving the President.” (Vol. I, p. 12)

I.e., after a 2-year probe conducted by as many as 19 lawyers with the assistance of “approximately 40 FBI agents, intelligence analysts, forensic accountants, a paralegal, and professional staff ” that “issued more than 2,800 subpoenas under the auspices of a grand jury sitting in the District of Columbia; executed nearly 500 search-and-seizure warrants; obtained more than 230 orders for communications records under 18 U.S.C. § 2703(d); obtained almost 50 orders authorizing use of pen registers; made 13 requests to foreign governments pursuant to Mutual Legal Assistance Treaties; and interviewed approximately 500 witnesses, including almost 80 before a grand jury,” Mueller simply determined that reasons existed for continuing to investigate. (Vol. I, p. 13) And P.S.: He didn’t call them “substantial.”

If Stephanopoulos simply made a mistake by claiming that Mueller found four full-blown instances of Trump obstruction of justice, that’s fine – as long as he admits the error. Until he does, however, he’ll be as guilty of trafficking in fake news as he seems to believe Mr. Trump is guilty of obstruction.

Im-Politic: Mueller’s Sin of Omission on Obstruction

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Attorney General, collusion, Don McGahn, election 2016, FBI, Im-Politic, impeachment, indictment, James Comey, Jeff Sessions, Justice Department, Michael Flynn, Mueller Report, obstruction of justice, Robert S. Mueller III, Rod Rosenstein, Russia, Special Counsel, Trump, Trump-Russia, William P. Barr

There’s no longer any legitimate doubt: Nearly six weeks after its release, almost no one with any influence on American public policy or public opinion has actually read the publicly available version of the Mueller report on Russian election interference and possible presidential obstruction of justice. And most of those who have read it either didn’t understand it, or are trafficking in misleading descriptions. P.S. Based on his brief farewell remarks yesterday, that list includes Special Counsel Robert S. Mueller III himself.

Those are the only logical conclusions that can be drawn from the continuing insistence that, to quote Mueller, President Trump would have been charged in the report with the crime of obstructing justice but for “long-standing Department policy, [that] a President cannot be charged with a federal crime while he is in office. That is unconstitutional….The Special Counsel’s Office is part of the Department of Justice and, by regulation, it was bound by that Department policy. Charging the President with a crime was therefore not an option we could consider.”

Was Department policy a major determinant of Mueller’s non-indictment decision? Of course. And Mueller made that clear both in his reports and in his brief public statement. But was it the only determinant? And, by implication, given Mueller’s declaration that his report’s findings did not “exonerate” the President on this score, did Attorney General William P. Barr behave improperly by issuing his own determination that, even leaving aside Justice’s presidential indictment policy, Mueller’s investigation did not produce evidence “sufficient to establish” presidential obstruction?

The answer to both questions is clearly “No.” And it’s not even necessary to rely on Barr’s denial, in his March 24 letter announcing the decision reached by he and then Deputy Attorney General Rod Rosenstein, that the determination “was made without regard to, and was not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.”

It’s not even necessary to believe Barr’s May 1 testimony to the Senate Judiciary Committee that, at a March 5 meeting with Mueller, “in response to our questioning, [Mueller stated] that he emphatically was not saying that but for the [Justice Department policy] he would have found obstruction. He said that in the future the facts of the case against the president might be such that a special counsel would recommend abandoning the OLC opinion, but this is not such a case.”

These Barr statements can be ignored because Mueller’s April 18 report itself not only gathered abundant evidence bearing on the obstruction charge. It declared that it was inconclusive. To quote from the report (Volume II, p. 8. All subsequent page references are to this Volume unless otherwise noted.) “The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment.” And the report’s detailed discussions of ten Trump-era potential obstruction of justice episodes makes clear that the difficulties arose precisely because his team found significant evidence on both sides of the issue.

As a result, the most obstruction-friendly conclusion that Mueller and his aides reached was

that “there was a sufficient factual and legal basis to further investigate potential obstruction-of -justice issues involving the President.” (p. 12). In other words, an indictment decision was anything but a slam dunk. And after a protracted probe involving the questioning of literally hundreds of witnesses, all that the Special Counsel could state with high confidence was that a case can be made.

Moreover, the report spent so much time weighing the kind of evidence that would be used in a normal obstruction case that an entire section was devoted to summarizing “the law interpreting the elements of potentially relevant obstruction statutes in an ordinary case. This discussion does not address the unique constitutional issues that arise in an inquiry into official acts by the President.” (p. 9)

The obstacles to indicting Mr. Trump for obstructing justice came through loud and clear in the Mueller report’s analysis of what’s often portrayed as the leading candidate for such a charge – the President’s alleged order to his then White House Counsel Don McGahn to fire Mueller. According to the Mueller Report (on p. 87):

“A threshold question is whether the President in fact directed McGahn to have the Special Counsel removed. After news organizations reported that in June 2017 the President had ordered McGahn to have the Special Counsel removed, the President publicly disputed these accounts, and privately told McGahn that he had simply wanted McGahn to bring conflicts of interest to the Department of Justice’s attention….Some of the President’s specific language that McGahn recalled from the calls is consistent with that explanation. Substantial evidence, however, supports the conclusion that the President went further and in fact directed McGahn to call Rosenstein to have the Special Counsel removed.”

It’s perfectly valid to note that the “substantial evidence” cited here surely outweighed in Mueller’s mind the evidence about presidential language recalled by McGahn – evidence that wasn’t even given an adjective. Yet readers are told that even the substantial evidence simply “supports a conclusion.” And there may be less to that conclusion than meets the eye. For couldn’t the presidential order to McGahn to call Rosenstein have reflected the same concerns about Special Counsel team conflicts of interest?

On the question of intent, which matters greatly in obstruction cases, Mueller wrote (p. 89) that “Substantial evidence indicates that the President’s attempts to remove the Special Counsel were linked to the Special Counsel’s oversight of investigations that involved the President’s conduct- and, most immediately, to reports that the President was being investigated for potential obstruction of justice.

I’m not a lawyer, but could someone please explain to me why that “substantial evidence” is so all-fired incriminating? And as for this claim (p. 90) – “There also is evidence that the President knew that he should not have made those calls to McGahn” – that doesn’t exactly strike me as “Lock him up” material.

Muddying the waters even further are the aspects of possible obstruction-related episodes for which the Mueller Report presents no judgment on the evidence in terms of adjectives or other descriptions.

For example, regarding the President’s conduct with respect to the investigation of his (quickly fired) national security adviser Michael Flynn during the transition period, the report simply states (pp. 46-47):

“As part of our investigation, we examined whether the President had a personal stake in the outcome of an investigation into Flynn-for example, whether the President was aware of Flynn’s communications with [Russian Ambassador to the United States Sergey] Kislyak close in time to when they occurred, such that the President knew that Flynn had lied to senior White House officials and that those lies had been passed on to the public. Some evidence suggests that the President knew about the existence and content of Flynn’s calls when they occurred, but the evidence is inconclusive and could not be relied upon to establish the President’s knowledge….

“Our investigation accordingly did not produce evidence that established that the President knew about Flynn’s discussions of sanctions before the Department of Justice notified the White House of those discussions in late January 2017. The evidence also does not establish that Flynn otherwise possessed information damaging to the President that would give the President a personal incentive to end the FBI’s inquiry into Flynn’s conduct.

“Evidence does establish that the President connected the Flynn investigation to the FBI’s broader Russia investigation and that he believed, as he told Christie, that terminating Flynn would end “the whole Russia thing.”

No bottom line is presented.

Similarly (p. 154), the report’s discussion of the “nexus” issues raised by presidential conduct toward his former lawyer and all-around fixer Michael Cohen (focusing on the obstruction-relevant possibility that an individual being investigated knew that certain actions could bear on certain official proceedings ranging from judicial or grand jury actions to Congressional probes) simply observed:

“The President’s relevant conduct towards Cohen occurred when the President knew the Special Counsel’s Office, Congress, and the U.S. Attorney’s Office for the Southern District of New York were investigating Cohen’s conduct. The President acknowledged through his public statements and tweets that Cohen potentially could cooperate with the government investigations.”

One powerful overall conclusion, though, can easily be reached after reading the entire Mueller Report, and it bears on the crucial obstruction-related consideration of whether an individual acted with corrupt intent. As Barr observed in a May 17 interview with Fox News, Mr. Trump’s actions sprang from the genuine – legally non-corrupt – conviction that Mueller’s investigation of his record, along with the Obama administration’s surveillance of his campaign and the presidential transition, was a “witch hunt and a hoax.”

Continued Barr:

“[A]t the time, he was saying he was innocent and that he was being falsely accused. And if you’re falsely accused, you would think [it] was a witch hunt. … He has been hammered for allegedly conspiring with the Russians. And we now know that was simply false…. I think if I had been falsely accused, I’d be comfortable saying it was a witch hunt.”

At least as important, the Mueller Report itself supports this interpretation in many instances. For example:

“[U]nlike cases in which a subject engages in obstruction of justice to cover up a crime, the evidence we obtained did not establish that the President was involved in an underlying crime related to Russian election interference. Although the obstruction statutes do not require proof of such a crime, the absence of that evidence affects the analysis of the President’s intent and requires consideration of other possible motives for his conduct.” (p. 7)

“Multiple witnesses recalled that the President viewed the Russia investigations as a challenge to the legitimacy of his election.” (p. 47)

“[Then Attorney General Jeff] Sessions said he had the impression that the President feared that the investigation could spin out of control and disrupt his ability to govern, which Sessions could have helped avert if he were still overseeing it. (p. 51)

“On Saturday, March 25, 2017…the President called [Director of Intelligence Daniel] Coats and again complained about the Russia investigations, saying words to the effect of, “I can’t do anything with Russia, there’s things I’d like to do with Russia, with trade, with ISIS, they’re all over me with this.” (p. 56)

“In addition to the specific comments made to Coats, [the CIA Director Mike] Pompeo, and [then National Security Agency Director Admiral Michael] Rogers, the President spoke on other occasions in the presence of intelligence community officials about the Russia investigation and stated that it interfered with his ability to conduct foreign relations.” (p. 57)

“The evidence shows that the President was focused on the Russia investigation’s implications for his presidency- and, specifically, on dispelling any suggestion that he was under investigation or had links to Russia.” (p. 61)

“Evidence indicates that the President was angered by both the existence of the Russia investigation and the public reporting that he was under investigation, which he knew was not true based on [then FBI Director James] Comey’s representations. The President complained to advisors that if people thought Russia helped him with the election, it would detract from what he had accomplished.” (p. 61)

President Trump “told Comey that ‘he was trying to run the country and the cloud of this Russia business was making that difficult.'” (p. 61)

“The President…told McGahn that the perception that the President was under investigation was hurting his ability to carry out his presidential duties and deal with foreign leaders.” (p. 62)

“According to [then White House adviser Stephen K.] Bannon, the President said the same thing each time: ‘He [Comey] told me three times I’m not under investigation. He’s a showboater. He’s a grandstander. I don’t know any Russians. There was no collusion.'”

“We also considered why it was important to the President that Corney announce publicly that he was not under investigation. Some evidence indicates that the President believed that the erroneous perception he was under investigation harmed his ability to manage domestic and foreign affairs, particularly in dealings with Russia.” (p. 76)

“The President wanted Sessions to disregard his recusal from the investigation, which had followed from a formal DOJ ethics review, and have Sessions declare that he knew ‘for a fact’ that “there were no Russians involved with the campaign” because he ‘was there.’ The President further directed that Sessions should explain that the President should not be subject to an investigation ‘because he hasn’t done anything wrong.'” (p. 97)

“[T]he President knew that the Russia investigation was focused in part on his campaign, and he perceived allegations of Russian interference to cast doubt on the legitimacy of his election.” (p. 97)

“[T]he evidence does not establish that the President was involved in an underlying crime related to Russian election interference. But the evidence does point to a range of other possible personal motives animating the President’s conduct. These include concerns that continued investigation would call into question the legitimacy of his election….” (p. 157)

As I wrote in an April 21 post, I believe that, because he had no reason to believe that a nearly complete version of his report (whose only required audience was the Attorney General) would be made public, Mueller acted perfectly appropriately in including a judgment that his investigation did not exonerate Mr. Trump on the obstruction question. For he was trying to impart information to Barr.

But Mueller has done the country a grave disservice by stressing the Constitutional barriers to indicting the President on this score. His report plainly demonstrates that he and his staff spent enormous amounts of time probing the traditional legal bases for an obstruction charge, and found considerable evidence to support decisions both to indict and not indict had Justice Department policy permitted such a step to be considered. And his farewell remarks yesterday were an inexcusable missed opportunity to clarify these matters.

As for Barr’s decision to file no obstruction charges, he and Rosenstein just as plainly saw the amount of evidence supporting such a conclusion, and quite reasonably judged that the obstruction allegations could not be proved “beyond a reasonable doubt” had Justice’s reading of the Constitution permitted a case to be brought. Moreover, as Barr’s May 17 press interview demonstrates, he believed that the President’s relevant words and deeds stemmed from his conviction that he was being framed – a conviction borne out by Mueller’s findings not only that the evidence was “not sufficient to support criminal charges” on any grounds against any Trump campaign officials who had contacts with the Russian government, but that no members of the campaign had “coordinated with the Russian government in its election interference activities.” (Vol I, pp. 9,2)

Now that Mueller’s investigation is finally, officially, totally over, Congress, of course, has every Constitutional right to launch impeachment proceedings. For impeachment charges can properly include deeds that are not strictly speaking crimes. But it’s crucial to note that, from a legal standpoint, Mr. Trump is now in the clear. And although technical objections like Mueller’s can be raised to the President’s “no collusion, no obstruction claims,” his own report shows that they’re more than accurate enough.

Im-Politic: Mueller, Barr, and Beyond

Tags

2016 election, Access Hollywood tape, Adam Schiff, collusion, Constitution, executive privilege, high crimes and misdemeanors, Im-Politic, impeachment, James Comey, Jerrold Nadler, Justice Department, Mueller Report, Nancy Pelosi, obstruction of justice, removal, Robert Mueller, Roger Stone, Russia, Russia-Gate, Special Counsel, Trump, Trump-Russia, William P. Barr

Yesterday, Attorney General William P. Barr released his summary of Special Counsel Robert Mueller’s investigation of the Trump presidential campaign’s “links and/or coordination” with the Russian government, and of related obstruction of justice charges. The big takeaways: In the Mueller report’s own words, the investigation “did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities”; and (in the Attorney General’s words), Mueller and his team “ultimately decided not to make a traditional prosecutorial judgment” regarding a number of Presidential actions that “potentially” raised obstruction of justice concerns.

A more resounding defeat for the legions of Democrats, Republican and conservative Never-Trump-ers, and Trump haters in the Mainstream Media can scarcely be imagined for two major reasons. First, according to Barr, not only did the Special Counsel investigation fail to find any Trump campaign conspiracy or coordination with the Russian interference effort. It concluded that such actions never took place “despite multiple offers from Russian-affiliated individuals to assist the Trump campaign.”

Second, although Mueller and his staff (in their words) made sure to state that “while this report does not conclude that the President committed a crime [i.e., obstruction], it also does not exonerate him,” the failure to recommend such charges is stunning. After all, this hasn’t been a team of investigators that’s been exactly reluctant to hand down such indictments – including for so-called process crimes that are clearly serious in normal circumstances, but that look especially dubious now considering the failure to find any underlying crime.

Constitutionally speaking, where this leaves remaining desires in Congress and throughout the country to impeach the President is way up in the air right now. For as the impeachers – and others – have often rightly reminded us, the Constitution doesn’t define the “high crimes and misdemeanors” that can warrant impeachment (and removal from office) aside from “treason” and “bribery.” Therefore, from a Constitutional standpoint, there’s a strong case to be made that impeachment and removal can take place in the absence of a criminal offense, and that the process is above all else political (a term I’m not using pejoratively in this case).

As a result, any lawmaker deciding to proceed along these lines even after the above Mueller conclusions would be acting completely within his rights and even arguably fulfilling one of his highest duties. House Judiciary Committee Chair Jerrold Nadler (D.-New York) was right when he stated:

“The job of Congress is much broader than the job of the special counsel. The special counsel is looking and can only look for crimes. We have to protect the rule of law, we have to look for abuses of power, we have to look for obstructions of justice, we have to look for corruption in the exercise of power which may not be crimes.”

Indeed, that’s why Congress has been granted broad oversight authority over Executive Branch actions and policies. It’s a central feature of the checks and balances principle at the heart of the country’s Constitutional government.

Similarly, however, because impeachment is an ultimately political process, House Democrats (whose control of the chamber empowers them to initiate such proceedings) will have to make ultimately political decisions whether to go ahead, how far to take these matters, and the extent to which they’re willing to permit impeachment to dominate their agenda and the public perceptions they create. As I see it, those Democrats chomping at the bit to head down this road remain far from the starting gate, especially given House Speaker Nancy Pelosi’s judgment well before this weekend’s events that Mr. Trump “is just not worth” impeaching. The same conclusion applies to the determination of Rep. Adam Schiff (D-California), Chair of the House Intelligence Committee to keep examining whether the President “is somehow compromised by a foreign power.”

Yet for all the comment and analysis flooding out this afternoon, there’s still one question I think needs more attention: When exactly did the Mueller team recognize that neither the collusion nor the obstruction allegations wouldn’t pan out? More specifically, did this situation became clear to the Mueller team before last year’s U.S. midterm elections?

Here’s what I’m driving at: The entire Special Counsel exercise was launched to find answers to some of the biggest and scariest questions ever raised in American history. Like whether a successful candidate for President and/or influential members of his campaign cooperated with an unfriendly foreign power to win the White House – which raises the possibility (as per Schiff above) of a President doing that power’s bidding for fear of blackmail. And don’t forget the allegations that Mr. Trump obstructed justice in order to cover up these actions and relationships, and that Moscow has him over a barrel for a second reason – due to financial transactions that kept the President’s business empire afloat before and during his White House run.

Given these astronomical stakes, of course all Americans of good will would want to leave no stone unturned. But there inevitably comes a point at which the stones start looking like pebbles, inherently incapable of hiding much. In that vein, Mueller has indicted plenty of Russians and some Americans, but as even the Trump-loathing Vox.com notes, none of these found that “Trump advisers criminally conspired with Russian officials to impact the election.” Indeed, the last such Trump-er brought up for charges was Roger Stone (in January) – and the Stone actions that caught Mueller’s attention (between July and October, 2016) came a year after Stone officially left the Trump campaign.

In other words, it looks as if sometime in the second half of 2018, Mueller’s investigation was reaching a point of diminishing returns. Did Mueller and his staff continue their business as usual (including keeping their findings closely held) because they had strong reasons to believe that major revelations were just around the corner? That would be highly unusual, for at least according to Barr, none of them panned out.

But if the investigation was producing such modest results after so many witnesses interviewed and search warrants executed (approximately 500 each, according to Barr), subpoenas issued (more than 2,800), and communications records obtained (more than 230), shouldn’t Mueller have let the public know that sooner rather than later? Especially considering that a major vote was coming up in November? These questions deserve to be asked even if Mueller was pursuing a typical prosecutorial strategy of targeting little fish first in the hope that they’d flip and disclose misdeed by progressively bigger fish.

Granted, several policy statements can be cited making clear that the determination of the Justice Department (the final authority over Special Counsel investigations) to avoid even creating the appearance of interfering with elections in any way. As this shown in this analysis, “interference” includes issuing reports shortly before elections (a standard previous Special Counsels, and former FBI Director James Comey in 2016, failed to meet). But the informal “60-Day Rule” cited here still would have enabled Mueller to issue some kind of statement (perhaps an interim report?) by Labor Day. I’d sure appreciate him explaining why this option wasn’t chosen, and if it was even considered.

Of course, it’s true that the President faces legal jeopardy on a variety of other matters, ranging in seriousness from hush money payoffs to floozies (which supposedly violated campaign finance laws) New York-area examinations of his inaugural committee’s fund-raising and of his family’s charitable foundation and of the possibility of insurance fraud to a groping accusation dating from 2007. But do these collectively, much less individually, endanger the Trump presidency? Given the President’s victory shortly after the release of remarks on the Access Hollywood tape suggesting sexual assault, that’s doubtful, especially with the Russia collusion and obstruction charges out of the way legally speaking.

Focusing on doubts concerning Barr’s decision to drop criminal obstruction charges against Trump seems no more promising. After all, authorizing Congress to seek impeachment for actions that are not crimes is essential because, as per the Nadler statement above, offenses like abusing power and creating conflicts of interest can endanger democracy and the public interest even if they violate no specific statutes. But obstruction of justice is a defined crime. Therefore, the failures of not only Barr but Mueller to indict on this score would require an obstruction-centric impeachment drive to insist that a political definition of guilt outweighs its clearcut legal counterpart. Good luck coming up with a politically riskier, more divisive course of action.

What about next steps? I strongly favor release as soon as possible of as much the actual Mueller report as consistent with the need to protect intelligence sources and methods. Watergate-era precedents seem to refute the idea that any materials violating executive privilege must be excluded. As Nadler rightly reminds, the Supreme Court’s Nixon tape case ruling specified that this Constitutional principle can’t be justified to hide wrongdoing. Nor do I have strong objections to publishing information either in the report’s body or in supporting documents that might invade the privacy or impugn the reputations of unindicted individuals (including the President). I would imagine that Barr and Congressional Democrats have enough common sense and decency to agree on which disclosures would harm the truly innocent. But the public should definitely have the right to know whether or not the President has surrounded himself with fools and knaves – and/or has acted this way himself.

Ultimately, however, I feel confident that Mr. Trump will survive these disclosures as handily as the non-aforementioned Mueller investigations. After all, a critical mass of the American people was ready to entrust Mr. Trump with the powers of the highest office in the land knowing full well he was no angel personally or in business. I strongly suspect he’ll fare equally well in 2020 now that it’s as clear as possible that, whatever his flaws, he was never the Manchurian Candidate or a Nixonian-style crook.