If you haven’t read the Mueller Report, you should do yourself a favor and rectify that. Odds are that you’ve been watching countless hours of news coverage on it, but, unfortunately, that coverage comes with an opinionated bent. As does this column for that matter. Nothing can replace taking the time to form your own opinion by reading the report itself, especially when we’re talking about a matter so vital to our nation’s safety. I took the weekend to get acquainted with the report and here are my takeaways after another re-read last night:
I. RUSSIA WAS, AND PROBABLY STILL IS, VERY ADEPT AT INFLUENCING OUR ELECTIONS
Underestimate Russia and its ability to influence our nation at your own peril. The section detailing Russia’s attack on our election is bone chilling to say the least. Here is one of the Mueller Report conclusions: “In sum, the investigation established that the GRU hacked into email accounts of persons affiliated with the Clinton Campaign, as well as the computers of the DNC and DCCC.” Mueller Report, Vol. 1, Page 65
The Mueller Report details various measures that the Russians undertook to meddle in our elections, beginning in or about 2014. The above-referenced hacking was one of their later-used methods. The other method was an intricate social media campaign whereby Russian operatives posed as Americans on social media in an effort to spread misinformation and sow discord in our society.
At first, the Russians sought merely to, for lack of a better phrase, instill chaos in our system. Both independently, and using information garnered from hacked election registrar databases, the Russians began targeting campaigns using both Facebook and Twitter. As the Mueller Report makes clear, the Russians did more with $100,000 in Facebook ads than either the Hillary Clinton or Donald Trump campaign did with thousands times that number.
Speaking of Hillary Clinton, the Russians shifted gears at a certain point after determining that a Trump Presidency would be better for Russia than a Clinton Presidency. The Russian social media profiles not only spread misinformation about Hillary Clinton, they actually organized rallies to support Trump. Unbelievably, the Russian-controlled social media accounts gained tens of thousands of followers and some were even re-Tweeted and/or cited by Michael Flynn, Kellyanne Conway, Eric Trump, Donald Trump Jr. and, yes, Donald Trump himself. Mueller Report, Vol. 1, Pages 33-34.
In short, the Russian campaign, though limited in the amount of resources it actually expended, was vast in its outreach. In total, “Facebook estimated the IRA reached as many as 126 million persons through its Facebook accounts.” Mueller Report, Vol. 1, Page 15.
One of the scariest parts of all of this is the fact that we’re not doing anything about Russia’s ability to interfere in our elections. As will be discussed below, having a President Trump means acquiescing to Russia in the worst possible ways. There is no telling whether or not we will be choosing our next leaders with or without Russian influence.
II. PRESIDENT TRUMP AND THOSE AROUND HIM TACITLY AGREED TO RUSSIAN ASSISTANCE; HOWEVER, THERE IS NO DIRECT EVIDENCE AND AS SUCH CRIMINAL CHARGES WILL NOT BE FILED GIVEN THE “BEYOND A REASONABLE DOUBT” STANDARD OF PROOF.
Before you get yourself all worked up over that sentence, please read on for the rationale as well as the implications. Most people are skipping to the section on obstruction of justice of the Mueller Report because it’s much clearer; however, the section on Russia is far more important to our national security.
The Mueller Report contains important redactions. Those redactions were made by Attorney General (and Trump stooge) William Barr, who should be impeached for his actions, but that’s another story. One heavily redacted section is entitled “Contacts With the [Trump] Campaign About Wikileaks”. Hmm . . . I wonder why Barr so heavily redacted this section? Nevertheless, the facts are damning when it comes to what President Trump and his campaign knew and how they acted on that knowledge. The section on Russia makes clear that the Trump campaign “was planning a press strategy, a communications campaign, and messaging based on the possible release of Clinton emails by Wikileaks.” Mueller Report, Vol. 1 Page 54
One question that is not explicitly answered is whether Trump and his campaign knew they were dealing with Russia when they communicated with Wikileaks. Why that’s a question, I don’t know.
If you’re thinking that Trump’s statement had no bearing on Russia, again, read the Mueller Report: “Within approximately five hours of Trump’s statement, GRU officers targeted for the first time Clinton’s personal office.” Mueller Report, Vol. 1, Page 49. Moreover, “[a]fter candidate Trump stated on July 27, 2016, that he hoped Russia would ‘find the 30,000 emails that are missing,’ Trump asked individuals affiliated with his Campaign to find the deleted Clinton emails.” Mueller Report, Vol. 1, Page 62.
How direct was the communication between the Trump campaign and Wikileaks? Wikileaks, via Twitter direct messaging, instructed Donald Trump Jr. on exactly how to tweet out its materials. Donald Trump Jr. followed Wikileaks’ instructions. Mueller Report, Vol. 1, Page 60. It doesn’t get any more cut and dry than that.
Things really started ramping up when the Russians started making clear through various channels that they had “dirt” on Hillary Clinton. George Papadopoulos was introduced to individuals claiming connections to Putin and that they had “dirt” on Clinton. It ultimately didn’t go anywhere through Papadopoulos. But it wasn’t for a lack of trying. In fact, the Trump campaign was very supportive of establishing connections to Putin and Russia through Papadopoulos. Mueller Report, Vol. 1, Pages 81-89.
And let’s not forget about Carter Page, the foreign policy adviser who had more ties to Russia than he knew what to do with. Page advocated against sanctions on Russia by the U.S. and touted his ties to the Kremlin. Page made multiple trips to Moscow and relayed Russian officials’ desire to work with Trump. Mueller Report, Vol. 1, Pages 98, 102.
Then there’s Rick Gates. Guess what he was tasked with doing by Paul Manafort? Sending Trump campaign information to the Russians, including internal polling data. Mueller Report, Vol. 1, Page 129. Why would an American’s campaign for President be sending internal polling data to Russian oligarch contacts? Manafort himself also gave internal polling data and campaign messaging briefings to the Russians. Mueller Report, Vol. 1, Page 140.Nothing to see here folks, right?
The piece of damning information we already knew about with regard to the Trump campaign’s intent comes with the infamous Trump Tower meeting. As the Mueller Report states, “[o]n June 9, 2016, senior representatives of the Trump Campaign met in Trump Tower with a Russian attorney expecting to receive derogatory information about Hillary Clinton from the Russian government.” Mueller Report, Vol. 1, Page 110. People with knowledge about the meeting include everyone involved in the campaign. Mueller Report, Vol. 1, Page 115. The odds of President Trump not knowing about the meeting are about the same of my winning the lottery twice this week.
The best thing going for the Trump team, including Don Jr., Kushner, and Paul Manafort, all of whom attended the meeting, is that they didn’t get what they wanted that day. If they had, there would be direct evidence of conspiracy as opposed to the litany of circumstantial evidence detailed in the report. The only other reason that Don Jr. and Jared Kushner aren’t in prison is that Mueller didn’t think either knew what he was doing. Sounds about right.
Late in the campaign, Russian CEO of the “Center for National Interest” Dimitri Simes kept frequent contact with Kushner. Their communications appeared to center around how he (Simes) wanted Trump to talk about Russia. Included in that was Simes’ sending Kushner a memo entitled “Russia Policy Memo” with talking points. Mueller Report, Vol. 1, Page 109. If you were looking for the other part of the quid pro quo, here’s a nice piece of it.
Why did Trump and his campaign do all of this? Two reasons: 1) To win the Presidency; and 2) Trump Tower Moscow.
The Trump Tower in Moscow is a topic that got some heavy ink in the Mueller Report. The Trump Organization explored a Trump Tower in Moscow from 2013 – 2016. The Trump Organization did so in concert with Russian-based real estate conglomerate. Preliminary terms were signed in late 2013. Mueller Report, Vol. 1, Page 67. Things never got past the planning stage until Felix Sater put Trump in touch with a Russian real estate development company in 2015. Michael Cohen was put in charge of the negotiation by Donald Trump. Don Jr. and Ivanka Trump were also integral in the process, which continued well into 2016. Mueller Report, Vol. 1, page 69.
Late in 2015, Sater emailed Michael Cohen the following: “Buddy our boy can become President of the USA and we can engineer it. I will get all of Putins team to buy in on this, I will manage this process. … Michael, Putin gets on stage with Donald for a ribbon cutting for Trump Moscow, and Donald owns the republican nomination. And possibly beats Hillary and our boy is in. … We will manage this process better than anyone. You and I will get Donald and Vladimir on a stage together very shortly. That’s the game changer.” Mueller Report, Vol. 1, Page 71.
According to the Mueller Report, both Michael Cohen and Felix Sater knew that, given the size of the Moscow Trump Tower project, it required Russian government approval at the highest levels. In fact, when things stalled, Cohen emailed the Russian Press Secretary for “assistance.” Mueller Report, Vol. 1, Pages 73-74. And as we know from Michael Cohen’s Congressional testimony, Trump was involved in all of this. Speaking of Cohen’s Congressional testimony, he’s going to jail in part because he lied about the fact that Trump planned to go to Moscow after the Republican National Convention in 2016. Mueller Report Vol. 1, Page 77.
All told, Trump Tower Moscow stood to make the President a boatload of money. He used his ties to the Russian government to try and make it happen. Ineptitude is the reason it didn’t. If there is one reason why Trump doesn’t go to jail, it’s ineptitude on the part of many people.
To conclude, Robert Mueller suggests that there is not enough evidence to “establish” the conspiracy between Russia and Trump. To establish the conspiracy, the standard would be “[a]n agreement to defraud another or to do or obtain something forbidden by law”. Mueller Report, Vol. 1, Page 180. Mueller didn’t think he could prove the agreement. But, as shown above, there is a ton of circumstantial evidence of a tacit agreement.
So why didn’t Mueller connect the dots? Because he likely figured that it would lose him credibility when he suggested, as discussed below, that Trump obstructed justice. The case for obstruction is far better because Trump was so open about it. Proving facts beyond a reasonable doubt is the highest standard of proof we have in our legal system. It is not insurmountable, of course, but it is a weighty burden nonetheless. Of note, we don’t have the Roger Stone portions of the Mueller Report because the case against him is ongoing.
Moving on, why did Trump obstruct justice? Because he knew that his ties to Russia, dating back decades, were not above the board and that if anyone looked into them, he’d be cooked. Trump made, and stood to make, a lot of money in Russia. What he gave Russia in return were United States policy positions like siding with Putin over the U.S. intelligence community, changing the Republican Party’s position on Russia at the 2016 Republican National Convention, and being openly against NATO. Russia got what they paid for in Trump, and then some. In fact, when Russia learned that Trump was President, an email circulated that read, “Putin has won.” Mueller Report, Vol. 1, Page 149. He certainly did.
III. PRESIDENT TRUMP OBSTRUCTED JUSTICE IN AN EFFORT TO CONCEAL HIS DEALINGS WITH RUSSIA.
This is the section that is getting more press because Robert Mueller, knowing that a slam dunk is better than a jump shot, made clear to Congress that this was its best bet to send Trump out of office and into prison. Put another way, Trump obstructed justice and there is no doubt about it.
Obstruction of justice is defined in 18 U.S.C. § 1512 and states that anyone who corruptly obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both. The President is not immune from obstruction, despite William Barr’s inane nonsense, because Congress has Article I authority to define generally applicable criminal law and apply it to all persons, including the President. Mueller Report, Vol. 2, Page 176. Moreover, Article III courts have an equally strong interest in being protected against obstructive acts, whatever their source. Id. The obstruction of justice statutes “can validly prohibit a President’s corrupt efforts to use his official powers to curtail, end, or interfere with an investigation. Mueller Report, Vol. 2, Pages 159-160.
As to the Special Counsel’s task at hand, “[t]he May 17, 2017 Appointment Order and the Special Counsel regulations provide this Office with jurisdiction to investigate ‘federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.’ 28 C.F.R. § 600.4(a) . . . Three basic elements are common to most of the relevant obstruction statutes: (1) an obstructive act; (2) a nexus between the obstructive act and an official proceeding; and (3) a corrupt intent. See, e.g., 18 U.S.C. §§ 1503, 1505, 1512(c)(2).” Mueller Report, Vol. 2, Page 9. Put more plainly, the Special Counsel could investigate anyone trying to do anything to impede the Special Counsel’s investigation for a corrupt reason. And attempt to impede it Trump did. And yes, he did so with corrupt intent.
Mueller’s analysis with regard to obstruction of justice begins with an analysis of Trump’s response to reports of his involvement with Russia during the 2016 campaign. As you will recall, Trump lied and denied any business dealings with Russia. Mueller Report, Vol. 2, Page 15. Why is that important? Because it goes toward Trump’s intent in trying to prevent the Mueller investigation from uncovering that fact, even if the underlying conduct (business dealings with Russia, without a quid pro quo deal vis-a-vis the Presidency), was not illegal.
The analysis next turned to the Wikileaks attack on Hillary Clinton and her campaign. The Mueller Report notes that Clinton blamed Russia. How did Trump and his campaign respond? With glowing enthusiasm for the hacks. Trump again denied any involvement with Russia and said that it was crazy to suggest any such involvement or that Russia would be trying to aid Trump. He also stressed friendly relations with Russia. Realizing that wasn’t working, he tried to distance himself from public ties to Russia by firing Paul Manafort and Carter Page. Mueller Report, Vol. 2, Pages 17-20.
Next comes Michael Flynn. Remember him? Remember how he told the Russians that the sanctions President Obama levied would be coming off the books? Well it turns out that Flynn had a line to Putin through Sergey Kislyak. Mueller Report, Vol. 2, Page 26.
Next, Trump and his team ignored Sally Yates’ and the rest of the intelligence community’s information as to Flynn’s being potentially compromised. Mueller Report, Vol. 2, Pages 30, 31, 33. Trump also tried to pressure FBI Director James Comey to drop the inquiry into Flynn, in an effort to put a lid on the talk about Russia. Mueller Report, Vol. 2, Page 40. None of that looks so good to a prosecuting attorney.
You know what else doesn’t look good? Trump’s behavior before and after Sessions’ recusal. Not only did President Trump demand that Don McGahn contact anyone and everyone to convince Sessions to not recuse, but Trump, going against an internal memo to not contact Sessions regarding the issue, pulled McGahn aside “to speak to him alone and suggested that Sessions should ‘unrecuse’ from the Russia investigation.” Mueller Report, Vol. 2, Pages 48-51. Trump’s behavior clearly meets the intent requirement with regard to trying to shut down the investigation before it got started.
The “Russia thing has to go away.” Yes. Trump said that. Mueller Report, Vol. 2, Page 57. Trump also asked Comey what could be done to “lift the cloud.” Mueller Report, Vol. 2, Page 58. Is that problematic? Of course it’s problematic. But that was just the tip of the iceberg.
Speaking of Comey, firing James Comey, who was overseeing the Russia investigation, is also something that does not look too good when we’re talking about obstruction of justice. Even Steve Bannon knew that it was not a good idea. Mueller Report, Vol. 2, Page 64. But Trump fired Comey anyway . . . and then hosted prominent Russian diplomats in his office . . . and then told them: “I just fired the head of the F.B.I. [Comey] was crazy, a real nut job. I faced great pressure because of Russia. That’s taken off. … I’m not under investigation.” Mueller Report, Vol. 2, Page 71. In a vaccum, firing Comey would have been a completely acceptable thing for Trump to do as President. But firing Comey to rid himself of the Russia investigation? Not so much. That’s where obstruction of justice comes in. The lies that Trump tried to tell afterward regarding the decision to fire Comey don’t help either.
Even worse than firing Comey was Trump’s trying to get the Mueller investigation shut down directly. He actually called Don McGahn, told him to have the Special Counsel removed, and said that it was because of conflicts of interest that he knew did not exist. Mueller Report, Vol. 2, Pages 77-78, 85. Why did President Trump do that? Because, in his words upon hearing about the appointment of the Special Counsel: “Oh my God. This is terrible. This is the end of my Presidency. I’m fucked.” Mueller Report, Vol. 2, Page 78.
Trump responded to the Special Counsel’s appointment by becoming obsessed with getting Jeff Sessions to “unrecuse” himself from the investigation into Russia’s meddling. He wanted Sessions to take control of the Russia investigation and shift its focus to Hillary Clinton and her emails because . . . There is no justifiable answer on this one. Mueller Report, Vol. 2, Pages 111-113. So what does it mean for Trump? Do not pass go. Do not collect $200.
Next came more lying and also trying to create a false record. It is clear that Trump instructed Don McGahn to get rid of the Mueller, and luckily enough for the President, McGahn refused. Trump, rather than leave it alone, decided to dig deeper. Instead, “the President’s personal counsel called McGahn’s attorney and said that the President wanted McGahn to put out a statement denying that he had been asked to fire the Special Counsel and that he had threatened to quit in protest.” Mueller Report, Vol. 2, Page 114. Mcgann refused to refute the accurate press report. Trump then wanted McGahn to write a memo to the file lying about the Mueller firing request. Mcgahn again refused. Mueller Report, Vol. 2, Page 115.
Trump should kiss Mcgahn’s feet for saving him from himself as much as was humanly possible. Mueller apparently didn’t think too highly of Trump’s conduct: “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 further scrutiny of the President’s conduct towards the investigation.” Mueller Report, Vol. 2, Page 120.
Some other actions that were analyzed in the Mueller Report were Trump’s attempts to tamper with witnesses, specifically, Flynn, Manafort, and Cohen. This one’s easy. You can’t tamper with witnesses in an ongoing investigation. Dangling pardons? Obstruction. Making threats? Obstruction. What’s crazy is that Trump did all of this out in the open either via the press or on Twitter. What an egomaniacal moron.
In sum, Trump obstructed justice on numerous occasions. He tried to get the Mueller investigation to go away by trying to fire people, by trying to get witnesses to create false records (see K.T. McFarland, Mueller Report, Vol. 2, Page 42; see also Don McGahn, supra) by lying to the public, and by limiting the scope of Mueller’s investigation (see Trump and Lewandowski, Mueller Report, Vol. 2, Page 90). There is no shortage of ways that the President of the United States can get charged with and convicted of obstruction of justice.
Trump’s best defense to all of this? That he could not have acted knowingly because, due to a personality disorder, he could not have understood what he was doing. That’s right, our President of the United States may mount some sort of insanity defense down the line. Isn’t that wonderful?
Trump is going to be indicted for obstruction of justice if he loses the 2020 Presidential Election. The statute of limitations will not have lapsed and it is abundantly clear that Trump knowingly committed an obstructive act with regard to Mueller’s investigation. The Mueller Report is nothing if not a “how to” guide for how to prosecute Trump and those around him.
As to impeachment, in normal times Trump could and should be impeached. But we don’t live in normal times. Trump and his idolaters need a foil and an impeachment proceeding would provide him with just that. He will never be convicted in a Republican-held Senate and anything that risks ceding the 2020 election to Trump is not worth it. For that reason, Trump will not be impeached. He will lose in 2020 and pray that the next President pardons him, which he/she better not do. There is a better than 50/50 chance that Trump stands trial for obstruction of justice and ends up in federal prison.
The real story is that this is far from over, impeachment, or no impeachment. Mueller referred a slew of matters to federal prosecutors. We haven’t touched on Trump’s shady business dealings or his directing Michael Cohen to engage in campaign finance crimes. We also haven’t touched on the other ten matters that Mueller indicates have been referred out for criminal investigations. The Mueller Report is a jump off point. Down the rabbit hole we go.