Month: November 2020

The Mueller Report has grown in importance, not diminished, ever since it was published in March 2019. All that’s needed to grasp its crucial takeaways and the Big Question it presents is keeping in mind three key points.

I. Background For Understanding The Report

The Mueller Report was the most misunderstood big story of 2019. Its official title, Report On The Investigation Into Russian Interference In The 2016 Presidential Election, is hardly catchy, but the Mueller Report never was the non-event it was portrayed to be. Given what’s transpired since its release and the looming election, it is more relevant (and understanding it is more important) than ever.

People just didn’t get major aspects of the Report. Attorney General Barr’s misrepresentation of its contents before its release contributed mightily to confusion and misperception, as intended. Indeed, the fog was necessary to keep the Trump administration going. The hope was, and is, that Americans not read the Report for themselves.

It’s a shame. Grasp three key concepts, and how they inter-relate, and the significance of the Mueller Report is right there for the taking at any level of detail desired. The three points are: (1) Mueller believed he could not indict Trump. (2) Therefore, Mueller would not say whether Trump had committed a crime. (3) Underlying everything is the burden of proof in a criminal case, “Beyond a Reasonable Doubt” (BARD).

The first point is discussed but seldom fully understood. The most subtle, intriguing, least discussed, and useful point for understanding what puzzles and frustrates people about the Report is the second. It’s explicitly there, though, just like point #1 from which it flows.

Reading the Report is highly recommended. Yes, it’s long and the redactions are annoying. (Speaking of which, many of the redactions were about Roger Stone’s then-ongoing case. That debacle has played out. ISSUE AN UNREDACTED VERSION, NOW!)  The Report isn’t literature, but the content – what took place – is spellbinding.  The following is a relatively brief guided tour.

Key Point #1: Mueller Never Was Going To Indict the President

Robert Mueller was Special Counsel charged with handling the investigation and reporting to the Attorney General. As such, he was working under the Department of Justice. The DOJ’s Office of Legal Counsel (OLC) had issued an opinion finding that “the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions” in violation of “the constitutional separation of powers.”

Ordinarily, an investigating prosecutor has a binary decision to make: either prosecute or decline to prosecute. This being no ordinary investigation, Mueller determined not to make a traditional prosecutorial judgment. That’s because he adopted the OLC’s legal conclusion: It would be bad public policy and arguably unconstitutional to indict or prosecute a sitting President of the US. In his words, “we recognized that a federal criminal accusation against a sitting President would place burdens on the President’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct.”

In other words, (a) An indicted president can’t govern; and (b) Since electing a president is a political process, removal should be political, too, rather than legal. Impeach, then indict. We know what happened with impeachment (see Senate Republicans, I Know What You Did Last Winter, post of 6/23/20). Thereafter, the proper order became: Elect someone else, then indict. We’ll learn more on Tuesday, November 3.

So, why bother to investigate, then? Mueller anticipated that question. Paring down his answer: The OLC opinion recognizes that (1) One does not indict a sitting president, but a criminal investigation of a sitting POTUS is permissible. (2) A POTUS does not have immunity after leaving office. (3) Individuals other than the POTUS may be prosecuted. Therefore, Mueller proceeded: “we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.” [See pages 213-4. All page references are out of the Report’s total 448.]

As it turned out, unfortunately, some memories were more flawed or fabricated than fresh, and important documents weren’t as available as they should have been.

Key Point #2: Mueller Would Not Say Whether the President Committed a Crime

Ordinarily, the threshold step in deciding whether to prosecute or decline is to assess whether a person’s conduct “constitutes a federal offense.”  Mueller believed fairness dictated that he not even reach that assessment, given that criminal prosecution was out of the question.

Why? Because the protections provided within a public criminal trial is how individuals get a chance to clear their name. “In contrast, a prosecutor’s judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.” (214) Such fairness concerns would be heightened in the case of a sitting president.

Get this, and you are on your way with the Mueller Report: It would be unfair to accuse informally, and not indict.

Key Point #3: BARD – the Highest Burden of Proof – Was in Effect

Parties in legal cases have one of three burdens of proof – i.e. the degree of certainty they must prove for their side of a dispute to prevail. For example, the most common burden of proof is the lowest, “Preponderance of the Evidence”. In effect in civil cases for damages, it means proving your version of the facts is “more likely than not” what happened. (Another burden, “clear and convincing” is in between the other two, used in limited instances not relevant here.)

At the other end of the spectrum, the highest burden of proof is in effect in criminal cases: “Beyond a Reasonable Doubt”. Prosecutors must show there is no reasonable doubt that (a) a crime was committed and (b) the defendant committed it. Note that it’s not Beyond All (or Any) Doubt. So, who decides which doubts are “reasonable”? The jury.

If defense counsel does a good job in arguing reasonable doubt, the judge instructs the jury properly, and jurors take their role seriously, prosecutors have their work cut out for them with BARD. Combine this burden of proof with the first two key points, and a prosecutor more interested in doing his job scrupulously than throwing his weight around, and what do you get? The highly nuanced Mueller Report.

Robert Mueller’s Uniquely Delicate Task

No one knew better than Robert Mueller just how unique and delicate his role was. Nationally renowned as he was as a federal prosecutor, Mueller was still a non-politician in a very public setting. He presented himself as a man determined to discharge his duties fairly and honorably. For example, I loved what he said to the press while conducting the investigation: nothing.

Robert Mueller was never going to indict a sitting president (key point #1). He was never going to even express an opinion as to whether his conduct was illegal (key point #2). Some “Witch Hunt”, wasn’t it? Had he bent over backwards any further to be fair to the president, Mueller would have broken his back.

Mueller took a lot of heat for it, too. Some thought him wrong with #1, that his authority in this assignment would have permitted prosecution of the president. Many thought him wrong about #2, if they even bothered to grasp the point. Displeasure with him was from all sides, the result of his being neither the avenging angel sought by Democrats nor the exonerator Republicans wished to portray.

In particular, we’ve heard a lot about how poorly Mueller “performed” in his congressional testimony. He was hesitating, halting, asking for questions to be repeated, relying on the report, refusing to opine or characterize beyond the report, appearing to stumble while searching for the correct words.

Perhaps a Mueller presentation may have been more fluid a decade earlier. In general, though, complaining viewers did not realize what they were seeing. Mueller said the Report was his testimony and that he would not go beyond it, then actually did what he said. He was absolutely determined not to prejudice other ongoing investigations, or go beyond the purview of this one. There was good reason to resist attempts to put words in his mouth that were not in the Report, or to give questioners a second chance to ask something coherent. Many pauses involved processing subtleties and complexities, while being exquisitely fair to all in a setting where an answer’s every nuance mattered.

My impression, then, was of a career prosecutor who came by his impeccable reputation honestly; of a life-long Republican who found this one of his most distasteful assignments; and of a patriot worried about the country he loves and serves. Getting Mueller wrong may have had something to do with how unaccustomed citizens became to seeing a person of stature inside the beltway behaving honorably on the big stage.

II. Takeaways from the Report

Armed with the three key points, one can delve into the Mueller Report and emerge with any number of important takeaways. Here are a few.

Russian Interference With the 2016 Election Was Massive and Undeniable

Volume 1 of the Mueller Report, 199 pages, is devoted to detailing the nature and extent of Russian interference in the 2016 election. It makes for astonishing and appalling reading.

The Report breaks Russian efforts into two broad categories: (1) a social media campaign led by something called the Internet Research Agency (IRA) and (2) a hacking and dumping operation by a Russian intelligence service known as the Main Intelligence Directorate of the General Staff of the Russian Army (GRU).

The IRA

The social media campaign, begun as early as 2014 to generally undermine the US electoral system, fell in behind Donald Trump as an early candidate and then as the Republican nominee. IRA created phony entities under Facebook, Twitter, and Instagram. Some of them sounded like they were invented for satire, but had hundreds of thousands of followers. All told, as many as 126 million Americans were reached with false information and divisive messages.

Posing as American grassroots activists, the IRA also created, promoted, and held rallies in the US. The Russians sent notice of an event through the phony social media accounts, then recruited coordinators for the event from those who responded enthusiastically. IRA operatives would claim a schedule conflict as the event approached, leaving the recruited American coordinator to promote the rally with the media and run the show. An early (2015) event was a “confederate rally”; from June 2016 on, they were pro-Trump and anti-Clinton. Page 31 of the Report displays an IRA poster promoting a “Miners For Trump” rally in Pennsylvania.

A glance at the names of some fake IRA-backed groups active on Facebook alone shows the breadth of Russia’s insidious efforts at sowing discord: “Stop All Immigrants”, “Being Patriotic”, “Secured Borders”, “Tea Party News”, “Blacktivist”, “Black Matters”, “Don’t Shoot Us”, “LGBT United”, and “United Muslims of America” [page 25].

The GRU

The second category of interference, GRU’s hacking campaign, began in March 2016. It started with the email accounts of Clinton campaign volunteers and employees, including campaign chair John Podesta. By April, the GRU had hacked into the networks of the Democratic National Committee (DNC) and the Democratic Congressional Campaign Committee (DCCC). Hundreds of thousands of documents were stolen.

Release of materials was timed to assist Trump and hurt Clinton. Example: the first dump of Podesta materials by WikiLeaks occurred on October 7, 2016, about an hour after release of the infamous 2005 “hot mic” video in which Trump boasted of sexual assault exploits to Access Hollywood’s Billy Bush.

There’s also this: On July 27, 2016, “candidate Trump announced that he hoped Russia would recover emails described as missing from a private server used by Clinton when she was Secretary of State (he later said that he was speaking sarcastically)” [page 5]. There’s that pesky sarcasm again; such a jokester, that Donald. However, “Within approximately five hours of Trump’s statement, GRU officers targeted for the first time Clinton’s personal office.” [page 49]

Information Warfare

The second sentence of the Report, on page 1, is this: “The Russian government interfered in the 2016 presidential election in sweeping and systematic fashion.” Elsewhere, it points out that the IRA referred to its own tactics as “information warfare”. In short, as said by former NJ Attorney General John Farmer, Jr. in a terrific piece in the 4/21/19 Philadelphia Inquirer, “Taken as a whole, those measures were a cyber invasion of our nation, an act of virtual war.”

In his testimony, Mueller said, “Over the course of my career I have seen a number of challenges to our democracy. The Russian government’s effort to interfere in our election is among the most serious.”

The Report Did NOT Say “No Collusion!/No Cooperation!/No Conspiracy!”

Far from it. It concludes that Special Counsel had not gathered enough evidence at that point to be confident of conviction.

This is the burden of BARD at work. In reviewing the Report, never forget that these are criminal law considerations. Note the use of careful language like “not sufficient to establish” throughout, in explaining instances where prosecution was declined. This is a prosecutor being careful not to charge unless very sure of sustaining the burden of proof. (His batting average for obtaining convictions on those charged was as high as it could be, thus setting the stage for disgraceful intervention in the cases of Roger Stone and Michael Flynn by Attorney General Barr and President Trump.)

The Report sets forth both an eagerness on the part of the Trump Campaign to conspire and numerous contacts between the campaign and Russian operatives.

Individuals were indicted for lying and obstructing, but no member of the campaign was indicted for conspiring with the Russians.

Three possibilities suggest themselves here. Either:

1. There was no conspiracy because the Russians concluded from contacts with the Trump campaign – like the meeting at Trump Tower of 6/9/16 in which Donald Trump, Jr., Jared Kushner, and Paul Manafort were disappointed not to receive dirt on Clinton – that they’d do better helping  Trump get elected without them;
2. There was a conspiracy, but the obstruction of justice laid out in Volume 2 succeeded in preventing Special Counsel from proving it beyond a reasonable doubt; or
3. To borrow a concept from Antitrust law, conscious parallelism occurred. (Bear with me here, or just skip this part.) Without explicitly agreeing to fix prices, competitors in a market sometimes simply behave as if they had. With no smoking gun, it’s harder to prove, but conscious parallelism is an antitrust violation. The question here would be whether the parties had the sophisticated wherewithal to pull off such a nod-and-a-wink political conspiracy.

Before letting this topic go, I should mention that the weakest part of the Report for me, admittedly no expert on criminal law, was the explanation of why that Trump Tower meeting of June 9 did not constitute criminal conspiracy. Pages 184 to 188 contain a fine explication of the law but an unpersuasive application of it to the facts. Counsel fusses over his ability to prove, BARD, two elements of conspiracy, thing-of-value and willfulness. Yet, it seems incredible that (a) the anticipated dirt on Hillary would not be a “thing of value” and (b) individuals so high up in a major party’s presidential campaign could be held so ignorant of basic election law as to be incapable of willfulness.

Obstruction of Justice

Volume 2 of the Report presents a compelling case of breathtaking obstruction of justice by the President and others. The details are as comprehensive as they are appalling. As with the facts underlying the Trump impeachment, Nixon’s Watergate cover-up shrivels into insignificance by comparison.

Here is the Conclusion to the executive summary of Volume 2:

Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President’s conduct. 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. At the same time, if 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, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

The only reasonable conclusion to draw from Volume 2 is this: There is only one reason Donald Trump was not indicted for multiple counts of obstruction – he was a sitting president. So why doesn’t Mueller just say so? Because Key Point #2, above, is just as important as Key Point #1. This was as far as Mueller felt he could go.

If you doubt my assessment of this as a non-expert in criminal law, please consider a Statement made public on May 6, 2019 (available here: https://medium.com/@dojalumni/statement-by-former-federal-prosecutors-8ab7691c2aa1) by a group who are certainly experts – former federal prosecutors. They describe themselves thus: We served under both Republican and Democratic administrations at different levels of the federal system: as line attorneys, supervisors, special prosecutors, United States Attorneys, and senior officials at the Department of Justice. The offices in which we served were small, medium, and large; urban, suburban, and rural; and located in all parts of our country.

Their conclusion, supported with analysis: Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.

The Mueller report describes several acts that satisfy all of the elements for an obstruction charge: conduct that obstructed or attempted to obstruct the truth-finding process, as to which the evidence of corrupt intent and connection to pending proceedings is overwhelming. These include:

· The President’s efforts to fire Mueller and to falsify evidence about that effort;

· The President’s efforts to limit the scope of Mueller’s investigation to exclude his conduct; and

· The President’s efforts to prevent witnesses from cooperating with investigators probing him and his campaign.

The Statement is signed by 1,027 former prosecutors. That’s right – over a thousand experts put the lie to the “fake news, witch-hunt, hoax”. If he’s indicted for multiple crimes after leaving office, Donald Trump will get what he deserves: the opportunity a trial entails to clear his name. If not, it will be official: someone is above the Law.

On “Exoneration”

An interesting exchange during Robert Mueller’s testimony was then-Rep. John Ratcliffe taking him to task for the second half of the Volume 2 Conclusion above, especially the last sentence not exonerating the president. The essence of Ratcliffe’s point was that Special Counsel lacked the authority to exonerate or not exonerate President Trump.

Mueller could have been accused of setting up a straw man and knocking him down (a pet peeve of mine, by the way), except for one important thing. He knew Trump was the type to claim falsely that the Report exonerated him and felt the responsibility to head that misconception off at the pass. Sure enough, Trump couldn’t wait to prove him right by claiming total exoneration – and that’s even with the Report’s detailed explanation why it did not and could not have exonerated him.

This chirping about exoneration makes an interesting contrast with Trump’s now-famous response to hearing that Mueller had been appointed: “According to notes written by Hunt, when Sessions told the President that a Special Counsel had been appointed, the President slumped back in his chair and said, ‘Oh my God. This is terrible. This is the end of my Presidency. I’m f—-d.’ ” [page 78] He had every reason to believe that.

It is worth noting that, as in numerous other published accounts of President Trump’s misfeasance, the Report describes instances where underlings prevented further damage by ignoring, deflecting, delaying or refusing orders by Trump to engage in wrongdoing. Remarkably, it could have been even worse.

III. The Big Question

Taking a deep breath and a step back from all the technical details and legal arguments, we’re left with one Big Question. Oddly, it has received little public discussion.

We’ve seen the extraordinary lengths (time, effort, and expense) that Russia went to in aid of Donald Trump’s 2016 campaign. The Report makes clear there can be no doubt on this and that more detailed evidence than anyone has time to read is available to prove it. Indeed, no one but Donald Trump even pretends to doubt it.

The question of whether such efforts were enough to alter the 2016 election’s outcome has lurked ever since. At this juncture, though, we’re more concerned with what effect Russia’s continuing efforts are having on the 2020 election. Let’s set that aside.

The Big Question is simply “Why?”

Why did Russia in general, and Vladimir Putin in particular, want Donald Trump to be President of the United States so very badly? Why does that continue?

Forgive me, fans of Hillary Clinton, but it cannot be that Putin was quaking in his boots at the prospect of a Clinton presidency. One of the most concerning aspects of President Obama’s eight years was how Putin consistently had his way with him – and no less so while Clinton was Secretary of State.

Notwithstanding false denials, there was the prospect of building a Trump Tower in Moscow. But if any hanky-panky were involved, it would be your garden-variety corruption that could occur whether or not Trump were President. In fact, the project, with or without wrongdoing, actually would have been easier without the glare of the presidency.

Why does Donald Trump admire Vladimir Putin, one of the world’s truly evil men, so unabashedly, to the point of hero-worship? Why and how does a president behave as Trump did in Helsinki? Why did Putin want Trump to be President so desperately that no effort or expense was spared?

Why the Big Question Matters

With no satisfactory answer, the question keeps presenting itself as each episode of President Trump’s bizarre and otherwise inexplicable handling of our international affairs unfolds. The long list includes seemingly impulsive and erratic behavior in troop movements, withdrawal from negotiated international agreements, and treatment of allies as enemies and enemies as allies.

With few exceptions, such behavior leaves experts in the affected fields, including (one hopes) the president’s own hand-picked advisors in the White House, aghast and repulsed. More importantly, such actions withdraw the US from the international stage, leaving the world a worse and more dangerous place. Every lessening of American presence and influence creates a void. Guess who is eager to fill the vacuum that Nature abhors. 

Again, if Donald Trump were to be re-elected, does anyone doubt that he would seek to withdraw the US from NATO? Guess who would be thrilled with that development.

Note the consistency in Russia’s strategy; it’s the classic Divide and Conquer. Yes, they worked to bolster candidate Trump and diminish Hillary Clinton. The most striking detail, however, was Russia’s unrelenting effort to sow anger, confusion, and especially division among Americans. Arguably, we needed less prodding than we should have, but they’ve been more successful dividing us than they could have dreamed. Similarly, Putin’s clear path to restoring Russia’s prominence is to divide those nations whose freedoms and way of life threaten him.

Again, why does Putin want Donald Trump to be President of the United States so very badly? Why was he so confident that a President Trump would deliver as he has? And, what’s in it for the Donald?

Finally, who wants a President of the United States about whom such questions can be asked credibly, with urgent concern? Guess we’ll see soon enough.

Ken Bossong

© 2020 Kenneth J. Bossong