On Thursday, the long-awaited Mueller report finally dropped, like manna from the heavens to the starved mass media. The media quickly swiveled from their years-long contention that President Trump and his 2016 campaign colluded with Russia to the contention that Trump obstructed justice in order to cover his non-collusion with Russia. That will be the talking point moving forward: that the cover-up was worse than the non-crime.
The Mueller report is interesting in a variety of ways. Here are some of the biggest takeaways:
1. The Trump-Russia Collusion Claims Were Farcically Overblown. While there were certainly members of the Trump team who acted suspiciously – including Trump, who continued to lie to the American public that no work was occurring on the Trump Tower Moscow deal during the 2016 campaign – the claims that Trump was a nefarious Russian agent were comically exaggerated. The Mueller report itself makes this clear:
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.
The report makes similar statements repeatedly. There was no there there.
2. The Original Suspicions Regarding The Trump Team May Not Have Been Unreasonable. One of the popular talking points these days concerning the Trump-Russia collusion investigation is that it was initiated in bad faith by an Obama intelligence apparatus concerned with taking down candidate Trump. That may be true. But there was plenty of smoke in the early days of the investigation: George Papadopoulos meeting with Joseph Mifsud, a suspected Russian asset, who allegedly bragged that he had access to Hillary Clinton’s emails; Roger Stone bringing Wikileaks promises to the attention of the Trump campaign; Trump’s dishonesty regarding the continuation of Trump Tower Moscow negotiations; the June 2016 Trump Tower meeting; Carter Page’s coordination with Russian fronts while working for the Trump campaign (Page, for example, emailed several campaign officials in July 2016 stating that he had “some incredible insights and outreach…from a few Russian legislators and senior members of the Presidential Administration here"); Paul Manafort’s involvement in the campaign while simultaneously doing the dirty work of Ukrainian oligarchs.
3. The Steele Dossier Is Nowhere To Be Found. The Steele dossier – the intelligence mishmash funneled to Obama intelligence agencies via Fusion GPS – barely comes up in the Mueller report. Yet it was used repeatedly as the basis for a FISA warrant against Carter Page, and was presented directly to President Trump by former FBI director James Comey, then reported on broadly in the press. This raises serious questions as to how much the investigation morphed over time into an attempt to “get” the Trump campaign – just how eager were members of the FBI (say, Peter Strzok) to place extra weight on a dubious document of oppo research origin?
4. Team Mueller Has An Extraordinarily Broad Definition Of Obstruction Of Justice. Attorney General William Barr has come under serious fire for failing to prosecute Trump for obstruction of justice. He has rightly pointed out that there is no underlying crime, and that corrupt intent is one of the elements of the crime. Under that rubric, he stated in his March 24 letter, “to obtain and sustain an obstruction conviction, the government would need to prove beyond a reasonable doubt that a person, acting with corrupt intent, engaged in obstructive conduct with a sufficient nexus to a pending or contemplated proceeding.” Today, Barr clarified his standard:
Although the Deputy Attorney General and I disagreed with some of the Special Counsel’s legal theories and felt that some of the episodes examined did not amount to obstruction as a matter of law, we did not rely solely on that in making our decision. Instead, we accepted the Special Counsel’s legal framework for purposes of our analysis and evaluated the evidence as presented by the Special Counsel in reaching our conclusion. In assessing the President’s actions discussed in the report, it is important to bear in mind the context. President Trump faced an unprecedented situation. As he entered into office, and sought to perform his responsibilities as President, federal agents and prosecutors were scrutinizing his conduct before and after taking office, and the conduct of some of his associates. At the same time, there was relentless speculation in the news media about the President’s personal culpability. Yet, as he said from the beginning, there was in fact no collusion. And as the Special Counsel’s report acknowledges, there is substantial evidence to show that the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks. Nonetheless, the White House fully cooperated with the Special Counsel’s investigation, providing unfettered access to campaign and White House documents, directing senior aides to testify freely, and asserting no privilege claims. And at the same time, the President took no act that in fact deprived the Special Counsel of the documents and witnesses necessary to complete his investigation. Apart from whether the acts were obstructive, this evidence of non-corrupt motives weighs heavily against any allegation that the President had a corrupt intent to obstruct the investigation.
But that’s not the standard the Mueller report suggests for obstruction. According to that standard:
Obstruction-of-justice law "reaches all corrupt conduct capable of producing an effect that prevents justice from being duly administered, regardless of the means employed."….An improper motive can render an actor’s conduct criminal even when the conduct would otherwise be lawful and within the actor’s authority…A defendant need not directly impede the proceeding….The requisite showing [of motive] is made when a person acted with an intent to obtain an "improper advantage for [him]self or someone else, inconsistent with official duty and the rights of others."….When the charge is acting with intent to hinder, delay or prevent the communication of information to law enforcement under Section 1512(b)(3), the "nexus" to a proceeding inquiry articulated in Aguilar – that an individual have "knowledge that his actions are likely to affect the judicial proceeding" – does not apply because the obstructive act is aimed at the communication of information to investigators, not at impeding an official proceeding…While "mere abstract talk" does not suffice [to create the crime of attempt], any "concrete and specific" acts that corroborate the defendant’s intent can constitute a "substantial step." ….The omnibus clause of 18 USC s1503 prohibits an "endeavor" to obstruct justice, which sweeps more broadly than Section 1512’s attempt provision.
This broadly defined version of obstruction – whereby the president could undertake an otherwise legal act so long as it is capable of producing an effect, even if it does not directly impede a proceeding, so long as a person acts with an intent to obtain “improper advantage” – allows the Mueller report to consider whether Trump tweeting about Michael Cohen being a “rat” or Paul Manafort being a solid citizen amounts to obstruction of justice. The report says as much, in fact. Take, for example, this line:
The President’s public statements during the Manafort trial, including during jury deliberations, also had the potential to influence the trial jury.
The President does have First Amendment rights. To suggest that public criticism of Robert Mueller or public praise of Paul Manafort amounts to criminal obstruction of justice requires an extraordinarily broad reading of obstruction of justice statutes. That’s also true of the presidential pardon power and the presidential power to fire. Trump certainly has those constitutional powers, and simply applying an intent test to those powers turns prosecutors into all-powerful mind-readers. Trump pardoning someone or firing someone with corrupt intent may be impeachable. It’s doubtful it’s criminal.
5. Trump Is A Bully Who Has No Problem Prevaricating For Political Gain, And Encouraging Others To Do So. With all of this said, the report is humiliating for President Trump. He acted embarrassingly repeatedly with regard to Russia during the 2016 campaign – he defended Vladimir Putin, he lied about the Trump Tower in Moscow, he praised Wikileaks – and then he acted even more embarrassingly and immorally in order to avoid the consequences of his original activity. Thus, he instructed Donald Jr. to lie to the press in his statement about the Trump Tower meeting; he tried to push Don McGahn to lie to the press regarding Trump’s desire to fire James Comey; he tried, via Corey Lewandowski, to push Attorney General Sessions to talk about his innocence and constrict the scope of the Mueller investigation; he tried to pressure Sessions to “unrecuse” himself and publicly browbeat him to do so; he tried to get McGahn to fire Mueller based on nonsensical accusations of conflict of interest. All of this is immoral, wretched, terrible behavior. But, according to the Mueller report, each of these instances only hints at violation of obstruction of justice; none of these incidents are dispositive.
6. Trump’s Team Has Prevented Him From Following Through On His Worst Instincts. Repeatedly. McGahn stopped Trump from firing Sessions and Mueller; he refused to comply with Trump’s order to lie about the Mueller incident in a statement to the public. Jeff Sessions refused to unrecuse himself. Chris Christie refused to facilitate bizarre phone calls with James Comey. Rick Dearborn refused to threaten Jeff Sessions, and James Comey didn’t end his investigation of Mike Flynn. As the report notes, “The President’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests.”
7. Trump Probably Wasn’t Trying To Cover Anything Up. He Was Just (Rightly) Pissed. This is Barr’s point, and it happens to be true. Take, for example, Trump’s reaction to Mueller’s appointment. According to the report, Trump “slumped” in his chair and then shouted, “Oh my God. This is terrible. This is the end of my Presidency. I’m f*cked.” Trump then added, “Everyone tells me if you get one of these independent counsels it ruins your presidency. It takes years and years and I won’t be able to do anything. This is the worst thing that ever happened to me.” Note he didn’t say he was upset that Mueller might find something. He was worried about the time suck. Trump routinely expresses his anger that the Mueller investigation kept going; he was angry at James Comey for failing to publicly declare he wasn’t under investigation (which would have been true); he was enraged at Jeff Sessions for failing to limit the scope of the investigation. Again, there was no underlying collusion to cover up. This was Trump lashing out, his aides stopping him (or, in too many cases, lying to the public but not the investigators), and Trump tweeting his rage at the universe. That’s not corrupt intent. That’s immature but understandable rage combined with ignorance about the nature of the presidency and the legal system.
8. Team Mueller Laid Out The Grounds For Impeachment, Not Prosecution. The Mueller report’s failure to lay out a recommendation on obstruction was obviously a roadmap to impeachment for Democrats. Mueller had three options: (1) exonerate Trump; (2) declare that there was not enough evidence to indict Trump on obstruction; or (3) refuse to take a position. Option 2 is obviously the most correct here – it would be nearly impossible to prove obstruction beyond a reasonable doubt, as Barr stated. Mueller’s report provides counterevidence for every insinuation of guilt of obstruction. But Mueller went with option (3) instead, which leaves the door open to impeachment and placing the blame on Barr. As Andy McCarthy correctly writes:
If special counsel Mueller believed there was an obstruction offense, he should have had the courage of his convictions and recommended charging the president. Since he wasn’t convinced there was enough evidence to charge, he should have said he wasn’t recommending charges.
So, my long take on the Mueller report is effectively the same as my short take: