Law journalist Benjamin Wittes places the Mueller Report under his virtual microscope and identifies five (the number of balance) keys to the most important findings of the official investigation of the machinations of the HA (Horse's A$$) in the Oval Office and his band of bumblin', stumblin', fumblin' subordinates in his so-called administration. If this is a (fair & balanced) legal/political report, so be it.
]x The Atlantic]
Five Things I Learned From The Mueller Report
By Benjamin Wittes
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I spent the week after the release of Special Counsel Robert Mueller’s report going through it section by section and writing a kind of diary of the endeavor. My goal was less to summarize the report than to force myself to think about each factual, legal, and analytical portion of Mueller’s discussion, which covers a huge amount of ground.
Here are five conclusions I drew from the exercise:
1. The president committed crimes.
There is no way around it. Attorney General William Barr’s efforts to clear President Donald Trump, both in his original letter and in his press conference the morning of the report’s release, are wholly unconvincing when you actually spend time with the document itself.
Mueller does not accuse the president of crimes. He doesn’t have to. But the facts he recounts describe criminal behavior. They describe criminal behavior even if we allow the president’s—and the attorney general’s—argument that facially valid exercises of presidential authority cannot be obstructions of justice. They do this because they describe obstructive activity that does not involve facially valid exercises of presidential power at all.
Consider only two examples. The first is the particularly ugly section concerning Trump’s efforts to get then–Attorney General Jeff Sessions to “unrecuse.”
The alleged facts are simple enough. According to Mueller, the president asked Corey Lewandowski to convey a message to Sessions. It was a request that Sessions reassert control over the special counsel’s investigation, make a speech in which he would declare that the president didn’t do anything wrong and that the special counsel’s investigation of him was “very unfair,” and restrict the special counsel’s investigation to interference in future elections. Lewandowski asked a White House staffer to deliver the message in his place; the staffer in question never did so.
A few factors are important to highlight here, all of them aggravating. Lewandowski was not a government employee, so this was not an example of the president exercising his powers to manage the executive branch. Indeed, Trump very specifically did not go through the hierarchy of the executive branch. He tried to get a private citizen to lobby the attorney general on his behalf for substantive outcomes to an investigation in which he had the deepest of personal interests. What’s more, the step he asked Lewandowski to press Sessions to take was frankly unethical. Sessions recused himself from the Russia probe because he had an actual conflict of interest in the matter. In other words, the president of the United States recruited a private citizen to procure from the attorney general of the United States behavior the attorney general was ethically barred from undertaking.
But it gets worse, because Trump did not merely seek to get Sessions to involve himself in a matter from which he was recused. Trump wanted Sessions both to limit the scope of the investigation and to declare its outcome on the merits with respect to Trump himself. This action would have quite literally and directly obstructed justice. Limiting the jurisdiction of the special counsel to future elections would have, after all, precluded the indictments Mueller later issued for Russia’s hacking and social-media operations. It would have precluded the prosecutions of Paul Manafort, Michael Cohen, Mike Flynn, George Papadopoulos, and Rick Gates, as well. Nor is there any real complexity here with respect to Trump’s intent. As Mueller reports, “Substantial evidence indicates that the President’s effort to have Sessions limit the scope of the Special Counsel’s investigation to future election interference was intended to prevent further investigative scrutiny of the President’s and his campaign’s conduct.”
As a criminal matter, this fact pattern seems to me uncomplicated: If true and provable beyond a reasonable doubt, it is unlawful obstruction of justice. Full stop.
Another example: Mueller reports that after the news broke that Trump had sought to get then–White House Counsel Don McGahn to fire the special counsel, Trump sought to get McGahn to deny the story. He also sought to get him to create an internal record denying the story. McGahn refused.
The attempt to get McGahn to write an internal memo disputing the story is the crucial fact here. The president’s conduct might otherwise be defended as a mere effort to lie to the press, but one doesn’t order the creation of false internal documents for purposes of denying a published story. So the question is, first, whether what Mueller described as Trump’s “repeated efforts to get McGahn to create a record denying that the President had directed him to remove the Special Counsel” would have “the natural tendency to constrain McGahn from testifying truthfully or to undermine his credibility” if he told the truth. The second question is whether such a corrupt outcome was specifically intended by the president.
Mueller acknowledges that there is “some evidence” that the president simply thought the story was wrong and was proceeding on his memory. But Mueller is pretty clear that the weight of evidence “cuts against that understanding,” though—as always—he stops short of making that judgment explicit. Mueller previously concluded that McGahn’s underlying story was amply supported by the evidence, while it’s hard to believe the president would simply have forgotten an effort to fire Mueller. As to the president’s intent, Mueller is pretty unabashed: “Substantial evidence indicates that in repeatedly urging McGahn to dispute that he was ordered to have the Special Counsel terminated, the President acted for the purpose of influencing McGahn’s account in order to deflect or prevent scrutiny of the President’s conduct toward the investigation.”
Assuming that one believes this could be proved beyond a reasonable doubt, imagining this fact pattern as a count in an indictment is not difficult. It is hard to imagine a plausible defense based on the idea that pressuring an employee to create false government records by way of influencing his ability to tell the truth is within the president’s constitutional authority.
If one accepts, as I do, Mueller’s general reading of the obstruction statutes as applied to official presidential action, there are many more examples. When Trump leaves office, assuming statutes of limitations have not yet run out, someone will have to make the binary assessment, which Mueller did not make, of whether they amount to prosecutable cases. As a historical matter, the report leaves me with little doubt that the president engaged in criminal obstruction of justice on a number of occasions.
2. The president also committed impeachable offenses.
Crimes and impeachable offenses are not the same thing, though they are overlapping categories. Some of the most obviously impeachable offenses described in the Mueller report are likely criminal as well. Some may not be. If I were a member of Congress, I would be thinking about which portions of the report describe, in my opinion, the most unacceptable abuses of power. A few stand out to me.
The first is the circumstances of, and run-up to, the firing of former FBI Director James Comey. While this fact pattern is complicated for criminal purposes, as a matter of impeachment, it’s very simple indeed. The president of the United States, seven days after taking office, demanded loyalty from his FBI director. Shortly thereafter, he isolated Comey in order to ask that he drop a sensitive FBI investigation in which Trump had a personal interest. The president then leaned on Comey to make public statements about his own status in the investigation. And when he couldn’t get Comey to do so, he recruited the deputy attorney general to create a pretext for Comey’s removal.
While there may be viable technical defenses against a criminal charge here, there simply is no plausible way to understand this fact pattern as a good-faith exercise of presidential power. It describes a frank abuse of power: a sustained demand for a wholly self-interested investigative outcome; a willingness to disrupt a crucial institution to get that outcome, to retaliate against an official who would not deliver it, and to set the entire apparatus of the White House to lying about the reason for the action; and the recruitment of senior Justice Department officials to create a pretextual paper trail to support it. I believed this was impeachable conduct at the time. The Mueller report reinforces that belief.
Ditto the effort to get Sessions to investigate Hillary Clinton. Mueller does not disentangle this effort from the attempt to get Sessions to reassert control of the Russia investigation. Let’s do so here: Even as he was trying to get Sessions to protect him from the FBI, Trump was also trying to induce Sessions to investigate his political opponents.
This is not obstruction of justice in any criminal sense. It’s rather the opposite of obstruction of justice; it’s the initiation of injustice. So I don’t think it’s plausibly sound in terms of criminal law. But it is molten-core impeachment territory. Consider: The president of the United States was trying to induce the attorney general of the United States to initiate a criminal investigation based on no known criminal predicate against a private citizen whom he happened to dislike. This was not rhetorical. It was not a joke. And if it is not unacceptable to Congress, then no member of Congress can say he or she was not warned when some future attorney general complies with a presidential request to launch an investigation against such a member of Congress.
A third example is the president’s public dance with Paul Manafort, in which he dangled the possibility of a pardon and praised Manafort’s bravery for not “flipping,” and in which his private counsel allegedly suggested that Manafort would be taken care of. Notably, Trump got what he wanted in this case. Manafort did not end up cooperating to Mueller’s satisfaction. Indeed, Mueller concluded that Manafort had breached his plea deal by failing to cooperate and by lying to investigators. So the reality here may well be that the president’s obstructive conduct did, in fact, obstruct the investigation. The president hinted that Manafort should not “flip” and that he would take care of him—and Manafort acted in a fashion consistent with his relying on those assurances. I think this activity, assuming it can be proved, is criminal.
It is also a grotesque abuse of power for impeachment purposes. The spectacle of the president of the United States publicly and repeatedly urging witnesses not to cooperate with federal law enforcement and entertaining the notion of using his Article II powers to relieve them of criminal jeopardy or consequences if they do not cooperate is one of the most singular abuses of the entire Trump presidency. Again, one has to ask of Congress what is unacceptable in a president’s interaction with an investigation if this conduct is tolerable?
In short, the question of the prudential wisdom of impeachment politically may be a hard one for members of Congress, but the impeachability of the conduct described by Mueller is not a close call. This is heartland impeachment material—the sort of conduct the impeachment clauses were written to address.
3. Trump was not complicit in the Russian social-media conspiracy.
Separating the wheat from the chaff is important, so let’s do so. While Trump has a great deal to answer for, Mueller unambiguously clears him—clears in the true sense of the word—of involvement in Russian efforts to interfere in the US election by means of the Internet Research Agency’s social-media campaign.
Yes, the IRA duped some Trump campaign figures into promoting the group’s material, but none of those Trump campaign figures appears to have done so deliberately. Mueller’s statement that the “investigation did not identify evidence that any US persons knowingly and intentionally coordinated with the IRA’s interference operations” is a stronger one than the language he uses elsewhere to indicate that evidence is insufficient to prove something. Here he actually seems to be saying that the investigation did not produce evidence at all of knowing participation in the Russian scheme by US persons. We should take that at face value.
The story the report tells is disturbing on its own terms, however. It is a story of failed immunity on the US side to outside interference—and aggressive Russian exploitation of the absence of democratic antibodies to fight off such manipulation. The IRA was able to reach tens of millions of US persons using its social-media accounts. It was able to trick prominent people into engaging with and promoting its dummy accounts. It was able to exploit social-media companies. And it was able to make a series of contacts with Trump campaign affiliates and to get those figures—plus Trump himself—to engage with and promote social-media content that was part of a hostile power’s covert efforts to influence the American electorate. Though not intentional or criminal on the US side, this pattern shows a troubling degree of vulnerability on the part of the US political system to outside influence campaigns.
The solution to this problem is not obvious. The social-media companies obviously have a role to play in better policing their platforms. But some of the solution has to come from individuals, particularly prominent individuals, who need to take more care about sharing on social media any content of uncertain provenance. That obviously includes the president and his family members and campaign staff. But the problem here is far broader than Trump. And the solution needs to be as well.
4. Trump’s complicity in the Russian hacking operation and his campaign’s contacts with the Russians present a more complicated picture.
No, Mueller does not appear to have developed evidence that anyone associated with the Trump campaign was involved in the hacking operation itself. And no, the investigation did not find a criminal conspiracy in the veritable blizzard of contacts between Trumpworld and the Russians. But this is an ugly story for Trump.
Here’s the key point: If there wasn’t collusion on the hacking, it sure wasn’t for lack of trying. Indeed, the Mueller report makes clear that Trump personally ordered an attempt to obtain Hillary Clinton’s emails; and people associated with the campaign pursued this believing they were dealing with Russian hackers. Trump also personally engaged in discussions about coordinating public-relations strategy around WikiLeaks releases of hacked emails. At least one person associated with the campaign was in touch directly with the Guccifer 2.0 persona—which is to say with Russian military intelligence. And Donald Trump Jr. was directly in touch with WikiLeaks—from whom he obtained a password to a hacked database. There are reasons none of these incidents amount to crimes—good reasons, in my view, in most cases, viable judgment calls in others. But the picture it all paints of the president’s conduct is anything but exonerating.
Call it Keystone Kollusion [emphasis supplied].
On July 27, 2016, Trump in a speech publicly called for Russia to release Hillary Clinton’s missing server emails: “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing.” The reference here was not to the hacking the GRU had done over the previous few months but to the hypothesized compromise of Clinton’s private email server some time earlier—an event that there is no particular reason to believe took place at all.
The GRU, like many Trump supporters, took Trump seriously, but not literally. “Within approximately five hours of Trump’s announcement,” Mueller writes, “GRU officers targeted for the first time Clinton’s personal office.” In other words, the GRU appears to have responded to Trump’s call for Russia to release a set of Clinton's emails the Russians likely never hacked by launching a new wave of attacks aimed at other emails.
Trump has since insisted that he was joking in that speech. But the public comments mirrored private orders. After the speech, “Trump asked individuals affiliated with his Campaign to find the deleted Clinton emails,” the report states. “Michael Flynn… recalled that Trump made this request repeatedly, and Flynn subsequently contacted multiple people in an effort to obtain the emails.”
Two of the people contacted by Flynn were Barbara Ledeen and Peter Smith. Ledeen had been working on recovering the emails for a while already, Mueller reports. Smith, only weeks after Trump’s speech, sprang into action himself on the subject. Ledeen ultimately obtained emails that proved to be not authentic. Smith, for his part, “drafted multiple emails stating or intimating that he was in contact with Russian hackers”—though Mueller notes that the investigation “did not establish that Smith was in contact with Russian hackers or that Smith, Ledeen, or other individuals in touch with the Trump Campaign ultimately obtained the deleted Clinton emails.”
In other words, Trump wasn’t above dealing with Russian hackers to get Hillary Clinton’s emails. The reason there’s no foul here, legally speaking, is only that the whole thing was a wild conspiracy theory. The idea that the missing 30,000 emails had been retrieved was never more than conjecture, after all. The idea that they would be easily retrievable from the so-called dark web was a kind of fantasy. In other words, even as a real hacking operation was going on, Trump personally, his campaign, and his campaign followers were actively attempting to collude with a fake hacking operation over fake emails.
Then there are the more-than-100 pages detailing Russian contacts and links with the Trump campaign and business. Mueller looks at these through a legal lens; he’s a prosecutor, after all, looking to answer legal questions. But I found myself reading it through a very different lens: patriotism.
Mueller concludes, after detailing the contacts, that “the investigation established multiple links between Trump Campaign officials and individuals tied to the Russian government. Those links included Russian offers of assistance to the Campaign. In some instances, the Campaign was receptive to the offer, while in other instances the Campaign officials shied away. Ultimately, the investigation did not establish that the Campaign coordinated or conspired with the Russian government in its election-interference activities.”
It is not hard to see how he came to the conclusion that charges for conspiracy would not be plausible based on the contacts Mueller describes. For starters, a number of the individual incidents that looked deeply suspicious when they first came to light do look more innocent after investigation. These include the change in the Republican Party’s platform on Ukraine at the Republican National Convention, for example, as well as Jeff Sessions and other campaign officials’ various encounters with the omnipresent former Russian ambassador Sergey Kislyak. On these matters, Mueller does seem to have found that nothing untoward happened.
Even those incidents that don’t look innocent after investigation don’t look like criminal conspiracy either. So, for example, George Papadopoulos found out about the Russians having “dirt” on Clinton in the form of “thousands of emails,” but he does not appear to have reported this to the campaign—though he was trying to arrange a Trump-Putin meeting at the time. Even if he had reported it to the campaign, the Trump campaign’s being aware of Russian possession of hacked Clinton emails wouldn’t constitute a conspiracy—the campaign, after all, never did anything about it.
The Trump Tower meeting is one of the most damning single episodes discussed: The campaign’s senior staff took a meeting with Russian representatives who promised disparaging information on Clinton as part of the Russian government’s support of Trump. Yet even here, while the campaign showed eagerness to benefit from Russian activity, the meeting was unproductive and nothing came of it. Where exactly is the conspiracy supposed to be? I can think of a number of possible answers to this question, and Mueller entertained one related to campaign-finance violations, but I certainly can’t argue that an indictment is an obvious call.
So, too, the extended negotiations over Trump Tower Moscow. The investigation makes clear that Trump—who spent the campaign insisting he had “nothing to do with Russia”—was lying through his teeth the whole time. He was, in fact, seeking Russian presidential support for his business deal through June 2016. But it’s not illegal to have contacts with Russians, including Putin’s immediate staff, to try to build a building. And it’s not obvious how this sort of “collusion” with the Russian government could amount to coordination or conspiracy on concurrent Russian electoral interference.
At the same time, Mueller here is far more reticent than he is about the IRA [Internet Research Agency] operation. He does not clear the president or his campaign. There are, in my view, two major reasons for the difference between his conclusions on these matters and his conclusions about the IRA operation, for which he affirmatively finds no evidence of conspiracy. The first is the sheer volume of contacts, which is truly breathtaking. These contacts were taking place even as it was publicly revealed that the Russians had been behind the Democratic Party hacks, even as the releases of emails took place, even as the incumbent administration was publicly attributing the attacks to Russia, even as—through the transition—the outgoing administration was sanctioning Russia for those attacks. The brazen quality of meeting serially with an adversary power while it is attacking the country and lying about it constantly militates against a stronger conclusion that there is no evidence of conspiracy—at least not in the absence of solid answers to every question.
And not every question got a solid answer. The Mueller team was clearly left unsatisfied that it understood all of Carter Page’s activities while he was in Moscow in July 2016, for example. Similarly, the office reports in its discussion of the Trump Tower meeting that Donald Trump Jr. “declined to be voluntarily interviewed by the Office.” This line is followed by a redaction for grand-jury information, raising the question of whether Trump Jr. asserted his Fifth Amendment right against self-incrimination or indicated an intent to do so.
And then there’s Paul Manafort. Mueller is candid that he was unable to determine why Manafort was having campaign polling data shared with his long-time employee, Konstantin Kilimnik. Mueller was also unable to determine what to make of repeated conversations between Kilimnik—who has alleged ties to Russian intelligence—and Manafort about a Ukrainian peace plan highly favorable to Russia. And while Mueller could not find evidence of Manafort’s passing the peace plan along to other people in the campaign, he notes that the office was unable “to gain access to all of Manafort’s electronic communications” because “messages were sent using encryption applications” and that Manafort lied to the office about the peace plan. As for the polling data, “the Office could not assess what Kilimink (or others he may have given it to) did with it.” So while the office did not establish coordination in this area, it was clearly left with residual suspicions—and with unanswered questions.
In other words, on the legal side, the evidence isn’t all that close to establishing coordination in the sense that conspiracy law would recognize, either on the hacking side or with respect to the contacts. But the positive enthusiasm for engaging Russian hackers over emails, the volume of contacts, the lies, and the open questions make it impossible to say no evidence of conspiracy exists.
The really interesting question here is not legal. It is historical and political: How should we understand the relationship between Trump and Russia? Put another way, what is the story these contacts tell if it’s not one of active coordination? They surely aren’t, in the aggregate, innocent. They aren’t normal business practice for a presidential campaign. What are they?
For what it’s worth, here’s what I see in the story Mueller has told on Trump engagement with the Russians over the hacking. I see a group of people for whom partisan polarization wholly and completely defeated patriotism. I see a group of people so completely convinced Hillary Clinton was the enemy that they were willing to make common cause with an actual adversary power who was attacking their country to defeat her.
To me, it matters whether the conduct violated the law only in the pedestrian sense of determining the available remedies for it—and in guiding whether and how we might have to change our laws to prevent such conduct in the future. I don’t know the right word for this pattern of conduct. It’s not collusion, though it may involve some measure of collusion. It’s not coordination or conspiracy. But in Clinton, Democrats, and liberals, the Trump campaign saw a sufficiently irreconcilable enemy that it looked at Vladimir Putin and saw a partner. That may not be a crime, but it is a very deep betrayal.
5. The counterintelligence dimensions of the entire affair remain a mystery.
Because the Mueller investigation was born out of a counterintelligence investigation, there has been an enduring impression that it had both criminal and counterintelligence elements. I have assumed this myself at times. How these two very different missions integrated within the Mueller probe has been much discussed. The Mueller report answers this question, and the answer is actually striking—and from my point of view alarming: The Mueller investigation was a criminal probe. Full stop.
It was not a counterintelligence probe. Mueller both says this directly and also describes how the counterintelligence equities were handled. Here’s how Mueller describes his investigation: “Like a US Attorney’s Office, the Special Counsel’s Office considered a range of classified and unclassified information available to the FBI in the course of the Office’s Russia investigation, and the Office structured that work around evidence for possible use in prosecutions of federal crimes.” A counterintelligence investigation is not structured around evidence for possible use in prosecutions of federal crimes.
Mueller then answers the question of what happened to the counterintelligence components of the investigation: The FBI took responsibility for them. “From its inception,” Mueller writes, “the Office recognized that its investigation could identify foreign intelligence and counterintelligence information relevant to the FBI’s broader national security mission. FBI personnel who assisted the Office established procedures to identify and convey such information to the FBI.”
The special counsel’s office and the FBI Counterintelligence Division had regular meetings to facilitate this transfer of information. “For more than the past year,” Mueller goes on, “the FBI also embedded personnel at the Office who did not work on the Special Counsel’s investigation, but whose purpose was to review the results of the investigation and to send—in writing—summaries of foreign intelligence and counterintelligence information to FBI HQ and FBI Field Offices.” The report deals only, Mueller says, with “information necessary to account for the Special Counsel’s prosecution and declination decisions and to describe the investigation’s main factual results.”
In other words, the Mueller investigation was a criminal probe only. It had embedded FBI personnel sending back to the FBI material germane to the FBI’s counterintelligence mission. But Mueller does not appear to have taken on the counterintelligence investigative function himself.
This leaves me worried. After the blood-letting at the bureau that saw the entire senior leadership replaced precisely as it was engaged with counterintelligence questions involving Trumpworld and Russia, who at the bureau now is going to push such questions? The incentive structure at the FBI cannot favor senior leadership carrying the ball on this. It also cannot favor individual agents allowing themselves to get assigned to matters that would put them in the president’s cross-hairs.
So I worry about a counterintelligence gap. Mueller, the person with the independence to take this matter on, construed his role narrowly as a prosecutor and set up a one-way street for counterintelligence information to go back to the FBI. And the FBI, the entity with the mandate, has every incentive to play it cautious.
It would be the deepest of ironies if the Mueller investigation showed evidence that the president had committed crimes and had committed impeachable offenses, and if he had painted a remarkable historical portrait of the relationship between Trumpworld and the Russian government, but if at the same time, the core counterintelligence concerns that gave rise to it and that have haunted the Trump presidency from the beginning went unaddressed. ###
[Benjamin Wittes is the editor in chief of Lawfare and a senior fellow in Governance Studies at the Brookings Institution. He focuses primarily on issues of national security and US law. He brings a non-lawyer's perspective to legal journalism, his primary pursuit. He has written for The Atlantic, The New Republic, Slate, Wilson Quarterly, The Weekly Standard, Policy Review, and First Things. Wittes' most recent book (written with Gabriela Blum) is The Future of Violence: Robots and Germs, Hackers and Drones—Confronting A New Age of Threat (2015). See his other books here. He received a BA (legal professions) from Oberlin College (OH).]
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