Monthly Archives: March 2019

Issues raised by Mueller/Barr/Rosenstein

The Republican Party’s simulacrum of the Keystone Kops has reached a new low point. You would have thought that with two years to plan for it, the “machine” that supports Donald Trump would have figured out a coherent way to issue the Mueller report without stirring up yet another firestorm of suspicion and uncertainty. But, no, they did it again.

We know now that about three weeks ago Mueller’s team met with Attorney General Barr and Deputy AG Rosenstein to, apparently, reveal the gist of the forthcoming report. And maybe more. Since the meeting was not revealed until after Mueller’s report was transmitted, we don’t know but, as with all meetings associated with Trump (Trump Tower, Putin, Kim Jong Un, etc.) the shroud of secrecy simply raises suspicions. It seems likely more was discussed than just a simple heads-up to what was coming because it took less than 48 hours for two more curious events to unfold: (1) a “high level official” at DOJ disclosed that Mueller’s report did not recommend or plan more indictments – Mueller was done; (2) Barr/Rosenstein produced a four-page letter in which they, after allegedly a 48-hour review of the report and supporting evidence, decided that Trump did not obstruct justice, despite Mueller’s own finding that the evidence on that issue did not exonerate the president.

Alarm bells began to ring immediately. It was no surprise that Barr, handpicked by Trump after Barr volunteered a long memo basically undermining the legitimacy of the Mueller investigation, would want to clear the president as fast as possible. Many people are saying that Barr’s mission from Day One on the AG job was to declare the president “not guilty,” one way or the other. Rosenstein had, we understand, already resigned but planned to hang around until Mueller reported, further raising suspicion that the fix was in. For his part, and in keeping with virtually everything he has done, Trump immediately declared himself completely exonerated by Mueller despite the plain words of Mueller’s report, quoted by Barr/Rosenstein, that the evidence did not exonerate him on obstruction of justice.

If you’ve been following the story, you’re familiar with most of the foregoing. Trump supporters and much of the media are, of course, declaring total victory and telling the rest of us to “move on.” To this I say “no so fast.” I list below four sources of thoughtful and professional analysis of why there are so many questions about the Mueller report and the Barr/Rosenstein scheme to rewrite it for public consumption. If you read them, you will see that these are not just partisan screeds but serious, sometimes legalistic, explorations of the situation which, in fairness to my side, deals with some of the most consequential issues in modern American history: did the president of the United States or people working with and for him conspire with a foreign power known to have interfered with the national election?

Given the overarching importance of these questions, it is not too much to ask that, given the more-than-odd way Mueller’s report has been rolled out, we pause for a bit to think deeply about what is going on here. Just as Republicans didn’t want a “rush to judgment,” despite constant demands to bring the investigation to a close, we don’t want and will not accept a rush to judgment now based on a partisan “summary” of what must be a profoundly complex and crucially important document.

Read the following as you will.

https://www.lawfareblog.com/four-principles-reading-mueller-report  

NOTE: the above link is to an article presciently written before the Mueller report was transmitted.

https://www.nytimes.com/2019/03/24/opinion/barr-mueller-report.html

http://nymag.com/intelligencer/2019/03/if-trump-obstructed-justice-he-cant-be-exonerated.html?utm_source=fb

https://www.lawfareblog.com/what-make-bill-barrs-letter

 

Semi-Final Thoughts on Mueller Report

Donald Trump and his enablers are jumping around like a bucking bronco that has just thrown its rider. This is to be expected. Supporters of the president are calling for revenge against those who questioned the president’s patriotism. Also to be expected from that crowd.The Trump gang does not, of course, care a whit about propriety as long as they win. Whether they have won remains to be seen, however.

I say that for several reasons, not least of which is the stunning revelation that Mueller’s team met with the Attorney General three weeks ago and disclosed that Mueller would make no finding on the obstruction of justice issue. Small wonder, then, that Barr/Rosenstein were able to absorb the entire Mueller report and provide their own crucial conclusion on obstruction (i.e., no obstruction) that Mueller had, on the evidence, declined to make.

Speaking of wonder, one must wonder now what else transpired during that meeting. Did Mueller’s people provide the AG with some or all of the evidence accumulated during the investigation? Apparently they did, because it would otherwise be impossible for Barr/Rosenstein to arrive at the conclusion of “no obstruction” as quickly as they did after Mueller’s report was “officially delivered” on Friday. This would also explain how an as yet unnamed “high official” at DOJ knew immediately after the report was delivered that there were no further indictments forthcoming.

If this is true, why was it done? I had originally thought it most likely that the Mueller report itself was just a summary, making the Barr/Rosenstein letter to Congress a summary of a summary, in which case Barr/Rosenstein wouldn’t have cared what the evidence was. Likely they don’t care anyway, but it is difficult to understand why Mueller would have provided a briefing to Barr/Rosenstein three weeks before releasing the report. Are we to believe as well that Barr/Rosenstein did not communicate the revelation to Trump before the DOJ letter was sent to Congress? It’s possible but if it were communicated in advance, we would have a hint as to why Trump was so suddenly down with the idea of pubic disclosure of the report.

All this is somewhat speculative, of course, but Mueller did the country no favors with these maneuvers. New questions arise at every turn. I confess that I decided early on not to watch the media circus of speculation and instant analysis that the Barr/Rosenstein letter inevitably created.

The ultimate question here – what role did Trump and his associates (family as well as hired hands) play in the documented Russian attempts to influence the 2016 election – will only be settled if and when the evidence on which Mueller relied is laid out for the public to digest. How much credence did Mueller give to Trump’s own statements and conduct in light of his refusal to be interviewed? It seems that Mueller discounted Trump’s own statements (Holt interview) about why he fired James Comey. If so, why did Mueller discount that evidence on both the collusion issue and the obstruction issue? Very importantly, how did Mueller square the Trump Tower meeting and Trump’s role in lying about its purpose with the conclusion that there was no collusion?

Was the no-collusion finding based on a lack of hard evidence such that Mueller, applying a strict beyond-a-reasonable doubt standard as a jury would do, felt no crime could be charged? To what extent did Mueller use the standard of probable cause in evaluating the evidence against Trump on collusion?

I could go on with this but it is pointless unless and until the full Mueller report and the evidence on which it was based are disclosed. Given the revelation of an undisclosed meeting between Mueller and DOJ leadership weeks ago at which Mueller’s findings were disclosed, such disclosure is essential if this sordid chapter of American history is to be put to rest.

The Mueller Report – Where From Here?

It is more than curious that Attorney General Barr and Deputy AG Rosenstein were able, in a matter of hours, to conclude that the massive evidence accumulated in the Mueller investigation in fact established that Trump did not obstruct justice when the Mueller report itself, according to quotations provided by Barr/Rosenstein, found that the evidence was inconclusive and did not exonerate the president on the obstruction issue. Not only is the Barr/Rosenstein conclusion not supported by the material they did disclose, there was no explanation of why Barr/Rosenstein felt it was appropriate for them to make their exoneration statement when the issue of how much of the Mueller report will be disclosed is still unresolved. Put that on top of the statement from an unnamed but high-ranking DOJ official on Saturday that the Mueller report contained no further indictments. Why, and who, was in such a hurry to begin pumping up the “not guilty” narrative for Trump?

The foregoing suggests to me that, in addition to other high crimes and misdemeanors, Trump has succeeded in undermining the core integrity of the Department of Justice. At the same time, the media seem to have lost their minds entirely and are reporting the story as if it were written by Barr/Rosenstein on their behalf.

Unless and until, the Mueller report, and the evidence on which it was based, is disclosed, the case against Trump will remain open. The only excuses for redaction of the report and withholding the evidence involve clear national security, executive privilege and grand jury limitations. The public is entitled to know how Mueller arrived at the conclusion that events such as the Trump Tower meeting and the multitude of lies told by Trump personally and by his family and other enablers did not support a finding of collusion. The public is also entitled to a deep understanding of the basis for Mueller’s conclusion that the evidence on obstruction was inconclusive when Trump admitted to, for example, firing James Comey for a corrupt reason.

I expect that after Trump does his victory dance, claiming exoneration when the Mueller report itself found no conclusion on that issue was possible, he will take the same position on disclosure that he took with his tax returns. He first said he would release them, then refused. He said just the other day that the Mueller report should be publicly disclosed but now, on the strength solely of the Barr/Rosenstein summary, he will almost certainly reverse his position again.

The battleground will now shift entirely to Congress and perhaps the courts as the various open cases against Trump and the Trump organizations proceed. There is no reason to give up, as some people, in shock no doubt, have suggested. Making a case against a sitting president, aided by a political party that is 100 percent invested in protecting him, was always going to be hard and take a long time. Trump’s victory claim is itself based on a false representation about the Barr/Rosenstein summary of the Mueller recommendations. No surprise that he would lie about that since he has lied about so many other things.

Hopefully, this development will awaken the Democratic Party to the difficult road ahead. Already, before the issues are even remotely resolved and while the actual Mueller report is still a mystery, pundits are predicting an easy win for Trump in 2020. Were that to happen, democracy as it has been known in America for my lifetime and beyond would likely be destroyed, possibly for decades. We would then be faced again with the duty outlined in the opening words of the Declaration of Independence: “when in the Course of human events it becomes necessary for one people to dissolve the political bands ….”

So let’s keep our wits about us and get about the business of planning and executing the political force that is necessary to fulfill not the ambitions of the plutocracy that now governs this country but the wishes and needs of the majority that voted against Trump in 2016 and can, with the right leadership and the right understanding, prevail.