Notes on the Mueller Report: A Reading Diary

 

Russian Government Links to and Contacts with the Trump Campaign

This section comprises more than 100 pages—which gives you an idea of how much material there was to investigate regarding Russian contacts and links with the Trump campaign. It’s a heck of a read, but it’s a complicated one that tells a confusing story I’ll be working to understand for a long time. Mueller tells it 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—the lens of patriotism.  

The section begins by articulating a question it actually never quite answers: “The Office investigated whether those contacts constituted a third avenue of attempted Russian interference with or influence on the 2016 presidential election.” I read the section in vain for any hint of what Mueller and his team believe the answer to this question to be. Is the story here that Russia was probing Trump world from all angles in an effort to recruit, compromise and penetrate? Is the story that the Russians were trying to find collaborators with whom to coordinate? Or is the answer to the question that, no, those contacts didn’t constitute a third avenue even on the Russian side—but have some other explanation? Mueller offers nothing by way of a historical theory of the case.

The question the section does answer is the one articulated in the next sentence: “In particular, the investigation examined whether these contacts involved or resulted in coordination or a conspiracy with the Trump Campaign and Russia, including with respect to Russia providing assistance to the Campaign in exchange for any sort of favorable treatment in the future.” The answer to that investigative inquiry? “Based on the available information, the investigation did not establish such coordination.”

The last paragraph of the section adds some texture to this conclusion: “In sum, 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.”

Let’s treat separately the question Mueller answers and the one he does not answer. They are both complicated discussions. In many ways, the question he doesn’t address is the more interesting and important one. But let’s start with the question the section does address.

To understand Mueller’s answer to the coordination and conspiracy questions, it pays to return to the discussion way back on page 2—discussed above—concerning what Mueller means by coordination and conspiracy and what it means when he says that the evidence “did not establish” something. Mueller made clear early on that he knows perfectly well how to “point[] out the absence of evidence” when the investigation refutes something; the phrase “did not establish,” he noted specifically, “does not mean there was no evidence” of the facts in question. It means, rather, that the investigation could not prove something adequately for criminal purposes. Coordination, meanwhile, he interprets in light of conspiracy law, which requires a meeting of the minds between conspirators in an agreement to pursue an illegal end. So let’s start by noting the narrowness of the inquiry here and the fact that Mueller chose to use the phrase that he had specifically said earlier did not signify the absence of evidence.

The first point to make, therefore, is that Mueller did not conclude either that coordination between the Russians and the Trump campaign did not happen through some or all of these contacts. He concluded, rather, that he had insufficient evidence to allege criminally that it did happen. This is notably different from his conclusions about the IRA operation, where he affirmatively reported an absence of evidence: the “investigation did not identify evidence that any U.S. persons knowingly and intentionally coordinated with the IRA interference operations.”

It is not hard to see how he came to the conclusion that charges for conspiracy would not be plausible based on the contacts reported here. 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 platform on Ukraine at the Republican Convention, for example, and the various encounters between Jeff Sessions and other campaign officials, on the one hand, and the omnipresent former Russian ambassador, Sergey Kislyak, on the other. 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, it doesn’t constitute conspiracy for the Trump campaign to be aware of Russian possession of hacked Clinton emails. The campaign, even if it did learn of what Papadopoulos had heard, never did anything about it.

The Trump Tower meeting is one of the most damning single episodes discussed, since the campaign’s senior staff took a meeting with Russian representatives having been 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?

Ditto the extended negotiations over Trump Tower Moscow. The investigation here 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. 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. Tellingly, Mueller notes that Michael Cohen couldn’t recall any discussion of the “political implications of the Trump Moscow project,” though he did recall “conversations with Trump in which the candidate suggested that his campaign would be a significant ‘infomercial’ for Trump-branded properties.”

The problem with imagining this series of contacts as a conspiracy law problem is that neither any one of them individually nor any group of them together reflects what Mueller described as his threshold definition of “coordination,” which “require[s] an agreement—tacit or express—between the Trump Campaign and the Russian government on election interference. That requires more than the two parties taking actions that were informed by or responsive to the other's actions or interests.”

But if that’s the case, then why is Mueller so reticent about a stronger “no collusion” conclusion? Mueller actually doesn’t answer this question. But I think there are likely two major factors that lead him to be circumspect in his conclusion on this score.

The first is the sheer volume of contacts. It really is 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 them. 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.

This brings me to the second factor, which is that there were not solid answers to every question—and some of the loose ends are weird. 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. While redactions encumber the reading of this portion of the discussion, Page had referred in an email to the campaign to “feedback from a diverse array of other sources close to the [Russian] Presidential Administration.” Mueller’s team was apparently unable to figure out what this reference to a "diverse array" of government "sources" meant. “The Office was unable to obtain additional evidence or testimony about who Page may have met or communicated with in Moscow; thus, Page’s activities in Russia—as described in his emails with the Campaign—were not fully explained,” Mueller writes.

Similarly, Donald Trump Jr., the office reports in its discussion of the Trump Tower meeting, “declined to be voluntarily interviewed by the Office.” This line is followed by a redaction for grand jury information. Given that a subpoena would normally resolve the problem of such a refusal of an interview, the redaction raises the question of whether Trump Jr. may have asserted his Fifth Amendment right against self-incrimination or indicated an intent to do so (prosecutors typically will not force someone to appear before a grand jury once they have been informed he or she intends to assert the Fifth). In any event, Mueller’s team was left without a full account of the conduct of the president's son.

The biggest problem in this regard was 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 specifically cites evidence tending to support the FBI’s determination that Kilimnik has ties to Russian intelligence. Mueller was also unable to determine what to make of repeated conversations between Kilimnik 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 to 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.

So there you are, on the legal side. The evidence arising out of links or contacts isn’t all that close to establishing coordination in the sense that conspiracy law would recognize. But the volume of contacts, the lies and the open questions make it impossible to say that there’s no evidence of it—much less that there’s positive evidence falsifying it.

But as I say, the really interesting question is the nonlegal question that Mueller doesn’t answer: “whether those contacts constituted a third avenue of attempted Russian interference with or influence on the 2016 presidential election.” 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. When Mueller asks whether they constituted some sort of third avenue for Russian interference, he’s really asking, in the prosecutorial language available to him, what to make of them.

People are going to see in this history what they want to see. It will tend to reflect back people’s prior assumptions about Trump and the 2016 election. For those who want vindication for Trump in the absence of evidence of a criminal conspiracy, that is a reality available to them from these pages. For those looking for “collusion” in some more colloquial sense of the word, there is plenty of grist for that conclusion here—between Trump Tower Moscow, the Trump Tower meeting, the bizarre behavior of Papadopoulos, Manafort and Page, and the almost endless back-channel communications during the transition. For people thinking in a counterintelligence framework, well, let’s just say it's a target-rich environment on that front as well. 

So maybe the following reflects nothing more than my own prior assumptions, but for what it’s worth, here’s what I see in the story Mueller has told over these more-than-a-hundred pages.

I see a group of people for whom partisan polarization wholly and completely defeated patriotism. I see a group of people so completely convinced that Hillary Clinton was the enemy that they were willing to make common cause with an actual adversary power at a time it 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. To me, the salient facts from this section are the following:

• Trump was willing to do business with and seek favors from the Russian state even as it was attacking the country for whose presidency he was running—and he was willing to lie about doing so.
• His campaign’s senior leadership was eager to benefit from that country’s efforts to dish dirt on his opponent and was willing to meet with people it knew to represent that country in order to receive such information.
• Multiple campaign staff and advisers engaged in conduct in relation to that country that legitimately gave rise to counterintelligence scrutiny.
• Multiple campaign staff and advisers lied to investigators about their dealings with Russian officials or intermediaries to such officials in a fashion that gave rise to criminal charges or other actions.

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. To my mind, anyway, that’s the story Mueller told in this section. It may not be a crime, but it is a very deep betrayal.

 

Prosecution and Declination Decisions

The rationales, indeed the specific language, Mueller uses to describe his declination decisions warrant brief discussion. I will confine this discussion to the declinations, though the section in question also covers his decisions to charge people, since the charging decisions are almost wholly explained by prior discussions on Lawfare of the indictments themselves and the litigations that resulted. Here is a list of the major reasons why Mueller did not bring cases:

• As noted above, on the IRA matter, the office found an absence of evidence that any U.S. person participated in the conspiracy: “[T]he investigation did not identify evidence that any U.S. person who coordinated or communicated with the IRA knew that he or she was speaking with Russian nationals engaged in the criminal conspiracy,” the office writes.
• Declinations related to the Computer Fraud and Abuse Act are redacted too heavily to comment upon, other than to note that one of them likely relates—given that episode is described earlier in the report—to Donald Trump Jr.’s receipt and use of a password from WikiLeaks to a site set up by an anti-Trump PAC.
• As to conspiracy, the office “did not establish that the contacts” between the campaign and the Russians “amounted to an agreement to commit any substantive violation of federal criminal law.” The office also “did not establish any agreement among Campaign officials—or between such officials and Russia-linked individuals—to interfere with or obstruct a lawful function of a government agency during the campaign or transition period.”
• On FARA matters and matters under 18 U.S.C. § 951, “the investigation did not ... yield evidence sufficient to sustain any charge that any individual affiliated with the Trump Campaign acted as an agent of a foreign principal within the meaning of FARA or, in terms of Section 951, subject to the direction or control of the government of Russia, or any official thereof. In particular, the Office did not find evidence likely to prove beyond a reasonable doubt that Campaign officials such as Paul Manafort, George Papadopoulos, and Carter Page acted as agents of the Russian government—or at its direction, control, or request—during the relevant time period.” Note the important caveat here: The office is not saying there was not evidence, merely that there was not sufficient evidence to prove the matter criminally. Note also that the office did accuse both Manafort and Flynn of FARA violations, just not for their relationships with Russia. Mueller also notes that “the investigation revealed significant ties between Papadopoulos and Israel (and search warrants were obtained in part of that basis)” but not enough to “obtain and sustain a conviction under FARA or Section 951.”
• The closest call case seems to be on campaign finance charges related to the Trump Tower meeting. The theory here was that the Trump campaign agreed to the meeting expecting to receive derogatory information on Clinton, and that such material constituted a “thing of value” and thus an illegal foreign campaign contribution. The organization of the meeting might thus be a conspiracy to receive illegal foreign contributions. The length of the discussion of this matter suggests it was analyzed carefully and was considered seriously. The declination has three distinct factors behind it. First, while there are “reasonable arguments that the offered information would constitute a ‘thing of value’ within the meaning [of the law],” it is not certain: “[N]o judicial decision has treated the voluntary provision of uncompensated opposition research or similar information as a thing of value that could amount to a contribution under campaign-finance law.” It is thus “uncertain how courts would resolve these issues.” Moreover, “the Office did not obtain admissible evidence likely to meet the government’s burden to prove beyond a reasonable doubt that these individuals acted ‘willfully,’” the office writes. And even if it could prove willfulness, “the government would likely encounter difficulty in proving beyond a reasonable doubt that the value of the promised information exceeded the threshold for a criminal violation.” Campaign finance expert Bob Bauer argued in our Lawfare Podcast discussion of the matter that Mueller’s legal view here is incorrect. I would not presume to try to evaluate the dispute.
• An additional campaign finance declination is too redacted to evaluate.
• A possible false statements case against Jeff Sessions for his denials of having met with Russians during the campaign was declined because “the evidence is not sufficient to prove that Sessions gave knowingly false answers to Russia-related questions in light of the wording and context of those questions.” In light of that wording and context, Mueller concludes, Sessions’s subsequent explanation to the Senate of his understanding “is plausible.”
• Other false statements declinations are too redacted to decipher.

 

Introduction to Volume II

The two-page introduction to Volume II of the Mueller report is perhaps the part of the entire document that packs the most important material into the smallest space. It is here that Mueller explains why he, as he puts it, “determined not to make a traditional prosecutorial judgment” on the question of whether Trump obstructed justice in his interactions over law enforcement investigation of L’Affaire Russe. The reason is complicated and multilayered. It ultimately, I think, leads to the conclusion that Mueller likely believes the president did, in fact, obstruct justice. At a minimum, it certainly argues that the evidence is at least strong enough on this point that the matters should be decided by prosecutors after Trump leaves office.

As a preliminary matter, I want to stress that Mueller’s section is difficult to reconcile with Barr’s account of Mueller’s reasoning at his press conference Thursday morning. Discussing a document that would become public within an hour or so—indeed, a document of which reporters present were being given embargoed copies—Barr was asked by a reporter to “explain for us the special counsel’s articulated reason for not reaching a decision on obstruction of justice and if it had anything to do with the department’s long-standing guidance on not indicting a sitting president?”

Barr responded that he would let Mueller’s report answer that question. Then he added that when he and senior department leadership met with Mueller on March 5, “[w]e specifically asked him about the OLC opinion and whether or not he was taking a position that he would have found a crime but for the existence of the OLC opinion. And he made it very clear several times that that was not his position. He was not saying that but for the OLC opinion, he would have found a crime. He made it clear that he had not made the determination that there was a crime.” When another reporter asked him whether Mueller was deferring to Congress on the question of the evaluation, Barr responded, “Well, Special Counsel Mueller did not indicate that his purpose was to leave the decision to Congress. I hope that was not his view, since we don’t convene grand juries and conduct criminal investigations for that purpose.”

I obviously was not present when Mueller and Barr met on March 5, and I am not saying that Barr was lying about his interactions with Mueller. That said, no component of his comments accurately reflects what Mueller actually wrote in these arresting two pages of the report—which actually lay out a subtle argument.  

Mueller lists four “considerations that guided our obstruction-of-justice investigation.” The first of them states that “[t]he Office of Legal Counsel (OLC) has 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.’” Because Mueller is an officer of the Justice Department, “this Office accepted OLC’s legal conclusion for purposes of exercising prosecutorial jurisdiction.”

Oh.

The use of the word “jurisdiction” there is not casual. Mueller does not say he was guided by OLC’s opinion in the exercise of his prosecutorial discretion or that he was influenced by OLC’s view in formulating his own thinking on the law. He describes himself as bound by OLC’s opinion as a matter of jurisdiction. That is, in his view—a view with which I agree—Mueller lacks the authority to indict the president. Indeed, the office declined to make a “traditional prosecutorial judgment” because it was jurisdictionally barred from reaching one of the only two determinations such a “binary” judgment can yield.

The report goes on, in the very next sentence, to state two prudential considerations that directly contradict Barr’s denial that Mueller was deferring to Congress: “[A]part from OLC’s constitutional view, we recognize that a federal criminal accusation against a sitting President would place burdens on the President’s capacity to government and potentially preempt constitutional processes for addressing presidential misconduct” (emphasis added). This second prudential consideration is critical.

Leaving aside Barr’s grossly misleading characterizations of the document, the relevant point is that Mueller makes two things clear within the first substantive paragraph of the section: that OLC’s opinion is central to his decision not to resolve obstruction matters, and that informing his judgment as well is a cognizance that the impeachment process, which Mueller references explicitly in a footnote, is the accepted mechanism for evaluating presidential lawlessness.

Mueller then goes on to explain that OLC “recognizes that a criminal investigation during the President’s term is permissible” because OLC recognizes that “a President does not have immunity after he leaves office.” What’s more, individuals other than the president “may be prosecuted at this time.” This point is important both in answering Barr’s subsequently stated concern that “we don't convene grand juries and conduct criminal investigations” to defer to congressional processes and also to explaining, more generally, what the live criminal question at issue in this matter is, given that the president can’t be indicted. Mueller says explicitly that “we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available” (emphasis added).

It is important to read the second point in the context of the first one. Together they say something like the following: We can’t indict Trump now and are thus deferring to Congress in the short term and creating a record for later prosecutorial assessment when the president leaves office. In other words, Mueller is not declining to make a traditional prosecutorial judgment; he is declining to make a traditional prosecutorial judgment now and leaving that task for someone else to do later.

This brings Mueller to the question of how to describe in the interim the results of an investigation that cannot for now result in indictment. Mueller here makes a highly principled judgment (whether his principle is a good one or a bad one is a question for another day): Given that he can’t indict the president, “we determined not to apply an approach that could potentially result in a judgment that the President committed crimes.” Driving this were “fairness concerns” about a situation in which a judgment of criminality would not result in a “speedy and public trial, with all the procedural protections that surround a criminal case,” which the president could use “to seek to clear his name.” A judgment that the president had committed crimes, without an accompanying charge, Mueller writes, “affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.”

In other words, Mueller is saying that given that he can’t indict Trump now, he is deferring to Congress in the short term, and to the judgment of future prosecutors as to whether ultimately to bring a case, and the Justice Department should not in the meantime be pronouncing on the merits of whether the president has committed crimes—allegations against which there is no forum in which to present a defense.

But then Mueller gives the game away, writing in his fourth point that “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.” The idea of not evaluating criminality turns out to be a one-way ratchet; while Mueller does not allow an evaluation that would inculpate the president, he has no apparent reservation about clearing the president if the facts warranted that.

The trouble, he says, is that “we are unable to reach that judgment” in the face of “difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”

Putting it all together, here’s what I think we can responsibly say is Mueller’s position:

(1) Mueller believes the evidence of presidential obstruction of justice is strong enough, and the president’s defenses weak enough, that to resolve this case would involve precisely the type of traditional prosecutorial judgment that he believes he cannot properly render; it is not clear that the president did not commit obstruction crimes, and, given that, the analysis should go no further.

(2) In the absence of a judgment clearing the president, Mueller does not believe it appropriate for the Justice Department either to opine on the merits of any obstruction case or to close the matter while Trump remains in office—believing the prosecutorial judgment should await the end of Trump’s presidency, when he is again amenable to criminal charges.

(3) In the meantime, Mueller considers the matter a question for Congress, which we can infer because he wants to avoid taking action that would “preempt constitutional processes for addressing presidential misconduct.”

(4) Finally, Mueller assembled the record that follows this dense discussion certainly to aid later prosecutorial consideration and probably also with an eye toward facilitating contemporary congressional consideration.

He articulates all of that antecedent to any discussion of the actual evidence.  

 

Background Legal and Evidentiary Principles

There’s not a great deal to say about this section, and so I’m going to largely gloss over it. The first half of it gives some useful background principles on obstruction of justice. The second half offers a straightforward account of the manner in which the special counsel’s office came to investigate obstruction in connection with L’Affaire Russe. The predicate facts are these:

After the appointment of the Special Counsel, this Office obtained evidence about the following events relating to potential issues of obstruction of justice involving the President:

(a) The President’s January 27, 2017 dinner with former FBI Director James Comey in which the President reportedly asked for Comey’s loyalty, one day after the White House had been briefed by the Department of Justice on contacts between former National Security Advisor Michael Flynn and the Russian Ambassador;

(b) The President’s February 14, 2017 meeting with Comey in which the President reportedly asked Comey not to pursue an investigation of Flynn;

(c) The President’s private requests to Comey to make public the fact that the President was not the subject of an FBI investigation and to lift what the President regarded as a cloud;

(d) The President’s outreach to the Director of National Intelligence and the Directors of the National Security Agency and the Central Intelligence Agency about the FBI’s Russia investigation;

(e) The President’s stated rationales for terminating Comey on May 9, 2017, including statements that could reasonably be understood as acknowledging that the FBI’s Russia investigation was a factor in Comey’s termination; and

(f) The President’s reported involvement in issuing a statement about the June 9, 2016 Trump Tower meeting between Russians and senior Trump Campaign officials that said the meeting was about adoption and omitted that the Russians had offered to provide the Trump Campaign with derogatory information about Hillary Clinton.

Taking into account that information and our analysis of applicable statutory and constitutional principles ..., we determined that there was a sufficient factual and legal basis to further investigate potential obstruction-of-justice issues involving the President.

Mueller here also explains his decision not to subpoena the president’s testimony. As with the earlier reference to Donald Trump Jr.’s decision, discussed above, the relevant passage raises a question about whether the president asserted his Fifth Amendment rights not to give evidence that might incriminate himself. “We also sought a voluntary interview with the President. After more than a year of discussion, the President declined to be interviewed,” Mueller writes. The next two lines are redacted for reasons of grand jury secrecy. The implication is that a subpoena may have been issued and then withdrawn for some reason. Normally, one would assume that was because of a Fifth Amendment claim. Here, however, the story seems to be more complicated, and we should be careful. The very next sentence notes that “the President did agree to answer written questions on certain Russia-related topics, and he provided us with answers”—though not on obstruction. And the passage then goes on to articulate reasons other than a Fifth Amendment claim that a subpoena was not pursued. Specifically, Mueller describes having concluded that the process would create “substantial delay” and that “we had sufficient evidence to understand relevant events and to make certain assessments without the President’s testimony.”

John Q. Barrett, on Twitter, offers the following analysis: 

And/or the redaction could cover a description of grand juror desire to subpoena the President, which Mueller in the end persuaded the grand jury not to do.

— John Q. Barrett (@JohnQBarrett) April 18, 2019

In short, while it’s possible that Trump’s counsel asserted his Fifth Amendment rights or suggested they would do so, it’s also possible that a subpoena was issued and withdrawn for other reasons, negotiations continued, and ultimately Mueller decided not to pursue the subpoena for the reasons he articulated.

 

Factual Results of the Obstruction Investigation

This section comprises 12 subsections, lettered A-L, each of which details some aspects of the factual findings of the obstruction investigation. Ten of these subsections, B-K, each detail a potentially obstructive pattern of behavior by Trump. Subsection A describes campaign- and transition-period “response to reports about Russian support for Trump.” And Subsection L details some “overarching factual issues” that affect multiple earlier fact patterns.

There is relatively little new factually in Subsection A, which does not deal with any obstructive pattern, so my analysis will focus on the sections that follow.

A note on Mueller’s methodology here, and my own. Because Mueller does not evaluate the matters he describes in a traditional law enforcement analysis, he never says directly how strong he feels the evidence of criminality is about any of the incidents. What he does instead is to describe the factual findings in detail and then, in an “analysis” section, address the evidence with reference to three common elements of obstruction statutes: the presence of an obstructive act, whether there is a nexus to an obstructable proceeding, and whether there is evidence of criminal intent. Mueller does not, in these subsections, discuss the president’s defenses, which he addresses elsewhere.

One thus cannot evaluate Mueller's conclusions, his not having given any. Instead, I am looking at this evidence through two lenses, which I am attempting to keep analytically separate from one another: First, I will attempt to evaluate how strong a criminal case I think the evidence he describes is in each instance; second, I will evaluate the same fact pattern with regard to how strong a case for impeachment the allegations describe. In a number of the cases, the answers will be similar; in some they will likely diverge. I will generally not review or summarize the facts except as necessary to make my analytical points.

 

B. The President’s Conduct Concerning the Investigation of Michael Flynn

The first episode deals with the president’s behavior in relation to the investigation of Michael Flynn. This includes the demand of loyalty from Comey, as well as the request that Comey drop the Flynn matter. It also includes the president’s outreach to Flynn after his resignation, through Reince Priebus and K.T. McFarland, to tell him that the president still cared about him and that he should stay strong. It also includes an instruction to McFarland to retroactively create a document “denying that the President directed Flynn to discuss sanctions with Kislyak.” (She didn’t do so.) 

For criminal purposes, a case based on this fact pattern is certainly plausible, but it does have some complexities. The obstructive act is the instruction to Comey, and the evidence here that it happened seems solid. The White House has, of course, denied Comey’s account, but it is notable that Mueller has no doubt of Comey’s credibility; indeed, he specifically finds Comey's story credible and supported by other circumstances and documents. I have no doubt that any jury would agree. There is, of course, the question of whether facially valid exercises of Article II authority are per se not obstructions, but let’s put that issue aside for now beyond saying that both a court as a matter of law and a jury as a matter of fact would have to grapple with whether some variant of that argument precludes conviction. For now, let’s just say that Mueller would have no trouble proving that the act happened and that it was an attempt to stymie the investigation.

I also think Mueller would have no trouble proving corrupt intent on the president’s part here, again with the caveat that the president would get to argue he was just doing his job supervising the Justice Department. Clearing the room before asking Comey to kill the investigation is highly probative of malign intent, as is asking a subordinate to create a record for the file to support one’s story.

Where I think a prosecution here might have a problem is on the supposed nexus to a proceeding. No grand jury was investigating this matter at the time, and FBI investigations are not obviously “proceedings” within the meaning of the obstruction statutes. So while the president clearly moved to shut down an investigation, a prosecution would have to show that he did so intending to interfere with an anticipated proceeding that might flow from that investigation. The evidence of this is certainly plausible. By the time of his conversation with Comey, Trump knew Flynn had lied to the FBI and thus was potentially subject to prosecution. But a case here would not be simple on this point.

By contrast, as a matter of impeachment, this is an easy and overwhelming case—and 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 he had a personal interest. He did this knowingly and intending to interfere with the investigation of Russian interference in the election and contacts between his transition team and Russian officials. It is a quintessential abuse of power, and while there may be viable technical defenses against a criminal charge, there simply is no plausible way to understand it as a good-faith exercise of presidential power.