• The Mueller Report, Anti-Climatic Climax Edition

    May 1, 2019

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    Posted in: Democracy, Trump


     

    With the release of the redacted report, #MuellerTime should be over. There was no collusion with Russia. No one is going to indict anyone for obstruction or anything else. Believing there are still more questions than answers at this point means one refuses to accept the answers. Trump is going to serve his full term and voters will decide if he gets another.

    Mueller ended conclusively the three year Russiagate tantrum, and choose not to pursue obstruction via indictment or a direct referral to Congress for action. He could have, but he did not. That should be it.

    But it won’t be. Mueller’s inclusion of dissenting information on obstruction, information that portrays unbecoming conduct by the president which does not rise to the level of evidence of any indictable crime, allows Democrats to decide where to take this next. Mueller has not tossed the ball to a Democratic Congress to play out its Constitutional check and balance role so much as he handed dirt to Democratic politicians to use as they see fit. It’s an odd end for the righteous Robert Mueller, twisting the tools of justice and the state to slander.

    Everything that happened over the last two years was because Democrats, the media, and the FBI falsely conflated Russia’s actions with Trump’s, and then imagined Trump committed serial acts of obstruction to cover up something he never did.

    The Report was issued in two “volumes” of roughly equal length. Volume I focuses on Russian interference in the election. Volume II focuses on obstruction of justice.

     
    Russiagate

    Volume I concludes two important but mutually exclusive things are true: 1) the Russian government, under Obama’s watch, tried to influence the election via social media and by obtaining the Democratic National Committee emails and 2) no American, including members of the Trump team, colluded, cooperated, or coordinated with that effort. The Report (Vol I, p 2) is clear the Trump campaign reacting to or even anticipating released materials was not criminal. Any crime would have required coordinated interaction, not merely two parties, in Mueller’s words, Vol I, p 2 “informed by or responsive to the other’s actions or interests.”

    Though the report does not mention it, an analogy might involve the Clinton campaign and the infamous Access Hollywood tape. The campaign may have heard the tape was going to leak, and certainly exploited its release, but that does not create “collusion” (used here as shorthand, not as a legal term, which of course it is not) between Clinton and the leaker.

    The Report also means there is no credibility left to the Steele Dossier or almost all of the reporting on Russiagate. None of the subplots matter outside the Washington-Twitter-New York corridor because they didn’t happen or they did not constitute a crime. Not the Trump Tower meeting, the Moscow Hotel Project, the polling data, the Alfa Bank server, the changed Republican platform on Ukraine, Jeff Sessions meeting Ambassador Kislyak, the meeting in the Seychelles, Dmitry Klokov (not) Putin’s go-between, Cohen (not) in Prague, Manafort (not) meeting Assange, Trump (not) ordering Cohen to lie to Congress. The contacts between Russia and Trump associates were exaggerated, falsely reported or proved to be of no consequence.

    All that should be in the headlines but isn’t, because of a new focus on obstruction of justice.

     
    Obstruction of Justice

    Volume I of the Report deals with actions taken independently by the Russians that had no coordinated connection to Trump’s own actions or decisions. The second half of the Report deals with obstruction of justice, events that happened because there was an investigation into collusion which itself never happened. Obstruction, like a perjury trap, is a process crime, which only exists because an investigation exists. As with most of Mueller’s perjury convictions in this saga, there was no underlying crime.

    And as with collusion, we already know the ending on obstruction. Mueller did not indict because the evidence did not support it. Attorney General Barr, and his deputy Rod Rosenstein, by law the actual intended recipients of the Report, agreed with Mueller. Some of Trump’s actions were lawful or, while troublesome or even immoral, were not criminal. Most significantly, Mueller could not indict on obstruction because it was not possible to determine Trump showed the legally required corrupt intent. All of that precedes any consideration given to DOJ/OLC advice a sitting president cannot be indicted.

    If Mueller had a obstruction case he could have made he would have made it. Mueller could have specifically recommended indictment and made explicit the complex legal issues around presidential obstruction meant a decision was beyond his and the Attorney General’s Constitutional roles and must be addressed by Congress via impeachment or through the Supreme Court. He could have indicted any number of people in Trump’s inner circle, with a sealed indictment against post-White House Trump. He could have said DOJ will not charge a sitting president so I couldn’t indict because of that alone, therefore I explicitly created this road map for impeachment to guide the next step.

    None of that happened. Mueller had no reason to speak in riddles, show restraint, send signals, embed hidden messages or hint at things. Mueller could have swung in any number of ways but instead found reason to leave the bat on his shoulder. Volume II should have ended there.

     
    Dissent

    But it seems obvious from reading the Report stories some of Mueller’s team saw evidence of obstruction which they found “alarming and significant” were true. Barr did a great disservice in omitting at least mention of this from his summary, as it forms the bulk of Volume II and will fuel nearly everything that happens next.

    Despite no indictment, the Report outlines ten instances containing elements of obstructed justice by Trump, with a big suggestion (Vol II, p 8) someone may want to look again. Apparently not everyone on Mueller’s team agreed with the boss’ conclusion the evidence was insufficient, and Mueller chose to allow what is essentially dissent Talmudically contradicting his major Volume II conclusion to be baked into his own work.

    Mueller was tasked with making an unambiguous decision to prosecute or not. He made it, and then included pages of reasons suggesting he might be wrong even as he also found space to say the dissent might also be missing the key element of intent. There is no explanation (save perhaps politics) for this confusing, ambiguous, and jumbled departure from traditional prosecutorial judgment. The final line (Vol II, p 182) reads like a Twilight Zone script: “while this report does not conclude that the President committed a crime, it also does not exonerate him.” Are there prosecutors somewhere in America who do issue specific statements of exoneration when they drop a case?

     
    Firing Comey

    One focus of the dissent is on Trump firing FBI Director James Comey. For this is be obstruction, Trump would have to have fired Comey with the corrupt intent to impede the investigation. The Mueller Report is clear that was not what happened. Despite the public messaging the firing was related to Comey’s mishandling of the Clinton email case, the Report shows Trump was angry at Comey for stating to him privately he was not under investigation but refusing to say that publicly, as Comey had done (once) for Hillary. Vol II, p 75 “Substantial evidence indicates that the catalyst for the president’s decision to fire Comey was Comey’s unwillingness to publicly state that the president was not personally under investigation.” That’s not obstruction of justice, it’s presidential rage.

    Yet elsewhere the Report says something more… leading to set up the argument for obstruction post-Comey. Vol II, p 7: “Some of [Trump’s] actions, such as firing the FBI director, involved facially lawful acts” but then adds “At the same time, the President’s position as the head of the Executive Branch provided him with unique and powerful means of influencing official proceedings, subordinate officers, and potential witnesses — all of which is relevant to a potential obstruction-of-justice analysis.” It was even clearer elsewhere. Vol II, p 157: “[we] found multiple acts by the President that were capable of exerting undue influence over law enforcement investigations, including the Russian-interference and obstruction investigations.”

    Mueller’s team concluded Trump lawfully fired Comey, did not break the law in doing so because the intent was not to obstruct, but it was still dirty play, “undue influence,” not a crime but still something that Vol 2, p 2 “presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred.”

     
    Trump Post-Comey

    That serves as the introduction to the second argument for obstruction, Trump’s actions post-Comey. Ironically, while Trump was not under investigation when he fired Comey for refusing to say that publicly, Trump was placed under investigation by the FBI (for obstruction) after he fired Comey.

    The Report suggests Trump’s post-Comey actions (broken down into ten episodes) would have constituted obstruction if seen as a pattern of behavior, not as the discrete acts the law focuses on, and if they had included the critical element of corrupt intent. Those “if” words are doing all the work because there was no corrupt intent. Mueller said so.

    So if Trump could not take his obstructive actions to cover up his crimes with Russia because they did not exist to be covered up, i.e., corrupt intent, why did he act in ways that appear designed to disrupt the investigation? Mueller answers the question. Vol 2, 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 Comey’s representations. The President complained to advisers that if people thought Russia helped him with the election, it would detract from what he had accomplished. Other evidence indicates that the President was concerned about the impact of the Russia investigation on his ability to govern. The President complained that the perception that he was under investigation was hurting his ability to conduct foreign relations, particularly with Russia.”

    If you will believe Mueller, Trump was concerned about his ability to govern, about as far from corrupt intent as you can get. At the pre-release press conference, Barr agreed with Mueller’s assessment. Trump knew, and Mueller came to know, that he did not collude with the Russians. To show corrupt intent, Mueller would have had to prove Trump was trying to stymie the process which would clear him. And yes there can be obstruction without an underlying crime but that requires even clearer evidence of corrupt intent, which on its face is counterproductive.

     
    Endgame

    Prosecutors don’t issue road maps for others. They make a binary decision, to charge or drop a case. Not charging is a conclusion and the only one that matters in the end. The Report is not a pretty picture of power being exercised. But Trump did not commit a chargeable crime, and in between some muddled dissent text, Mueller the prosecutor said so by not indicting him.

    Politicians, however, are bound by a different code. They can conduct investigations, hold hearings, and file articles of impeachment whose only purpose is to drag Trump through the Benghazi-like muck. They desperately seek but will never achieve a climax to this desperately anti-climatic Report. The Democrats know they have no chance of impeaching Trump. The question is, by playing at trying, do they think they have a better chance of defeating him in 2020?

     

    BONUS REDACTION-O-RAMA

    For more complete lists of Russiagate stories which were once headlines but are now debunked by the Mueller Report see here and here.

     

    No matter how much guessing about what’s under those black redcation bars may emerge, this will never be the horcrux that defeats the unacceptable 2016 election. Trump is going to serve his full term (for good measure there won’t be any Emoluments Clause prosecution or invocation of the 25th Amendment, either) and the voters under the same Electoral College system that’s been in place for over 200 years will decide if he gets another four years.
     

    At his news conference before releasing the Report, Attorney General Barr said any campaign interaction with WikiLeaks could not amount to a criminal conspiracy because WikiLeaks’ publication of the emails was not a crime so long as it did not help Russia hack them. That is the same standard the United States applied to the New York Times, et al, and Wikileaks for nearly a decade. It is the standard being used publicly against Julian Assange; his indictment focuses on his helping hack classified materials, not publishing them. Anything else impinges the First Amendment.
     

    The redacted information covers a standard four categories generally kept from the public: grand jury details, classified information, material related to ongoing investigations, and passages that could defame third-party figures (i.e., those investigated and cleared) caught up in Mueller’s probe. Demanding those things be made public is a strawman argument by Dems. A judge has already denied a preliminary injunction requiring the Justice Department to release the report. The Justice Department will make a less redacted version of the report, with more information on the pending Roger Stone case, available to a limited number of Congresspeople. Democrats have refused to look at it, demanding the full, unredacted report or nothing.
     
    Transparency in government is always a good thing. But in this instance, Dems motives in demanding the unredacted report are making two statements, neither supported by facts, just rage: Barr has been partisan and unprofessional in making these standard redactions, a coverup, to protect the president, and Mueller has missed something important hidden in the redactions the Dems will catch. In reality, the purpose of seeing the unredacted report, and the underlying data, and the… (there will never be enough) is to provide fodder for leaks Democrats hope will score political points or serve as good-enough excuses to keep the investigations going until the election. Classification and proprietary have the value of a paper bag in the rain to them. Trump, they believe to their core, had to have said or done something at least embarrassing and the Dems wants to see that in the Washington Post. The same thinking, by the way, applies to efforts seeking Trump’s taxes.
     

    And as for the gunman-on-the-grassy-knoll theory that the real evidence is hidden in the redactions, no matter how light they are, much of the obstruction investigation did not involve grand jury testimony. White House officials cooperated with Mueller specifically to avoid grand jury appearances. That means that information from key officials, including former White House counsel Don McGahn, former White House strategist Steve Bannon, and former Trump chief of staff Reince Priebus, could be included in the report. The White House did not invoke executive privilege to block the release of any of that information. Asked by Senator Jeanne Shaheen at a hearing last week if he would redact information to protect the interests of Trump, Barr said he would not. As for those such redactions, “I’m talking about people in private life, not public officeholders.” Lastly, Mueller and his team assisted with the redactions and could have pushed back at any point, including leaks. They have not done so.
      

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    Copyright © 2019. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

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  • Recent Comments

    • John Poole said...

      1

      We know that some pilot fish for the great white (Trump) were inadvertently chewed up by Mueller’s double propellor pursuit boat but Hillary’s pilot fish- Combetta, Mills, Pagliano and Abedin to name a few were much luckier. I’ll contribute heavily to a pursuit of Hillary, Obama, Lynch, Rice and countless others regarding lying about events in Benghazi and Hillary’s FOIA avoiding email account.

      05/1/19 12:23 PM | Comment Link

    • Rich Bauer said...

      2

      Climax? That means somebody got screwed…other than Stormy?

      05/1/19 12:24 PM | Comment Link

    • Rich Bauer said...

      3

      Trumpie: So what’s stopping me from just shooting Mueller on Fifth Avenue?

      McGahon: WOW, even for you that is some dumb shit. And yes that would be obstruction. The good news they can’t indict a sitting Presidunce. It would have to wait along with the twenty other indictments waiting for you.

      05/1/19 12:31 PM | Comment Link

    • Rich Bauer said...

      4

      Speaking of dumbshit, today U.S. Secretary Secretary of State Mike Pompeo told Fox Business that military action in Venezuela is possible, “if that’s what’s required.”

      Diplomacy dies in darkness.

      05/1/19 12:34 PM | Comment Link

    • Rich Bauer said...

      5

      The Warren Commission and the Mueller Investigation

      Funny that you would use the “gunman-on-the-grassy-knoll that the real evidence is hidden in the redactions” to distract from the bad aim of this corrupt administration. Barr’s efforts to hide the evidence makes the Warren Commission bungling look more transparent. Barr is trying to force the House to make a politically risky move on impeachment, while he appears committed to delay and stonewall even though doing so might weaken the legal position in the long run. It seems he has decided this is a better gamble than submitting to rigorous questioning from trained lawyers who could elicit answers he might regret in a later court proceeding. Barr was his Justice Department’s refusal to produce the full Mueller report to House Judiciary. Assistant Attorney General Stephen Boyd, in a letter to the committee, objected that the committee sought to “use Justice Department investigative files to re-investigate the same matter that the Department has investigated and to second-guess decisions that have been made by the Department.” But the constitution gives the House “the sole Power of Impeachment,” and the House cannot consider whether to impeach without the ability to investigate wrongdoing by the president.

      While everyone was looking for the gunman on the grassy knoll, the DOJ hid the fact that the JFK killshot was from behind the limo and the killshot bullet was a different caliber.

      Just like the Mueller investigation found, a Russian sympathizer made the first shot but the DOJ made sure justice was murdered.

      05/4/19 2:19 PM | Comment Link

    • John Poole said...

      6

      Bauer- admit it- you have an issue with Trump who is clearly a representative of the majority of the American vile sheeple. So who do you want to be the next POTUS? Your answer will be telling but I’ll bet $100 you have no specific candidate. I am guessing you will not commit. I don’t want a “next” POTUS since the American political system is a regrettable response to a lagged human evolution.

      05/5/19 6:32 PM | Comment Link

    • Rich Bauer said...

      7

      JP,

      You have an issue …delusion, that Trump is a meaningful player in this corrupt political system bought and paid for by the 1 percent. The entire system has to be changed, eliminating Citizens United corruption for a start. It doesn’t matter who the Presidunce is when a Corrupt House and Senate vote against the interests of the rest of US. Hell, I would support a Republican candidate if he supported policy that benefitted US instead of the Rich.

      05/8/19 10:31 AM | Comment Link

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