Introduction¹

This is the first of a series of posts in which I will analyze the Mueller Report based on the Special Counsel’s Office (SCO) investigation into two questions: (1) did the Trump Campaign conspire with the Russian government to affect the 2016 election in Trump’s favor and (2) did Trump engage in obstruction of justice regarding the Mueller investigation or otherwise? Based on the evidence adduced by the SCO, I believe the answer to both questions is ‘yes.’

Trump has argued that everything that transpired with Russia during and after the Campaign was intended merely to improve relations with Russia. On its face, there is nothing wrong with that — as a policy position – since Russia is clearly a major world power and, provided US interests are protected, better relations with it would be an important and valid foreign policy objective. Such claimed improvements in relations, however, must have mutual benefits, including that (1) vital relationships with allies around the world are respected and nourished, and (2) the personal and financial interests of our government leaders are not implicated in decisions regarding Russia. Because the Trump administration has been conducted largely in secret, often violating federal laws governing record-keeping by federal officials, and because the president has demonstrably lied about so many aspects of his governance before and after his election, including particularly his relations with Russia, little or no credence should be given to his protestations of innocence and doubts should be resolved against him.

Moreover, and this supersedes all other considerations, efforts to improve relations may not, under any imaginable circumstances, include seeking or accepting offers of assistance in the election of our leaders. Such activities by candidates are plainly and completely forbidden. It is well to remember, as President Obama reminded us when asked about possible changes to US foreign policy following his election, but before his inauguration, we have only one president at a time. Interference in the foreign policy of the United States by collaboration with a hostile foreign power, which Russia unquestionably has been, is beyond the pale. Every putative leader and those in the inner circle are chargeable with knowledge of, and the duty to comply with, this policy. Failure to adhere to it is a clear violation of the constitutionally prescribed oath of office (Article II, Section I, Clause 8) and is tantamount to, if not actually, treason.

Treason is a term that should not be thrown about lightly. The U.S. Constitution, in an effort to limit the abuses of the King of England, provides “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”

Since the Constitution provides only a limitation on what may be treason, the Congress enacted 18 USC 2381 of the federal criminal code:

“Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.”

Historically, very few formal allegations of treason have been brought in the United States and, as a practical matter, there is little chance that Donald Trump will be so accused. Nevertheless, in evaluating his behavior, and that of his chosen associates, it is well to keep the concept in mind. “I didn’t know the law” is no excuse.

It is important to me personally and, I hope, important to readers, to understand the many curiosities and nuances of the Mueller investigation, especially now that the Trump-appointed Attorney General has taken it upon himself to “decide” the very issues about which Mueller declined to make a final prosecutorial judgment. In doing this, the AG has made blatantly false statements about the substance of the Mueller Report in an effort to shape the public understanding of that Report in Trump’s favor. The AG has acted more like Trump’s personal attorney than like the chief legal officer of the country.

Mueller opened the door to this chicanery by failing to state clear conclusions about many aspects of the investigation. He could have done otherwise even if he believed, as he says, he was constrained by Justice Department policies that prevent the indictment of a sitting president for the corrupt conduct of his office. But he didn’t state those conclusions. Overall, his approach to the investigation seems to lack an appropriate measure of aggression, considering what was and is at stake.

Understanding the Report is also important because the Republicans in Congress now seek to “investigate” the investigators, pursuing the false narrative that there was no justification for the investigation in the first place and, taking words from Trump’s tweet storms, it was all just an effort to “take down a president.” That characterization is plainly false. That fact does not mean, however, that the Muller Report is without shortcomings. In addressing what I believe those are, I will be unsparing in my own critique.

That critique does not support the false Republican narrative. Indeed, the reverse is true. For reasons I will state, Mueller, in my view, failed to pursue leads and to follow up and report on some obvious issues. I understand, of course, that Mueller is famous as a prosecutor and highly regarded as a man above reproach. I accept that, but that just makes the questions about the Report all the more pointed and the absence of answers more difficult to accept at face value. This was not a time to be timid and, I believe, the Report reflects a stunningly timid approach.

On the issue of election interference, the Report contains many details, some of which refer to what seem like peripheral matters. Large sections of Vol. 1, for example, deal with Russian cyber-attacks and how they were investigated, not with Trump Campaign coordination. If you choose to read the Report, do not be distracted by this. The Report’s crucial finding is that not only did the Trump Campaign “expect … to benefit electorally from information stolen and released through Russian efforts” [I-MR 1-2] but the Campaign did not report what it knew was going on, and being attempted, to the FBI.

Also, keep in mind this warning from Mueller: “A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.” I-MR 2 There are many instances in which that statement applies to the situation the investigation was trying to explore.

Mueller has stated that if questioned in Congress, he will say nothing more than what is written in the Report. That is, for reasons that will appear, an unacceptable position. There are many legitimate questions about the conduct of the investigation, the framing of the analytical basis for the matters investigated and the conclusions (and non-conclusions) drawn. Mueller has, I believe, a solemn obligation to appear and respond to questions. He has apparently now agreed to do so, despite the continued entreaties of the Attorney General that he should not undergo that examination. I trust Mueller will not simply say “sorry, I have nothing further to say.” Time will tell.

[1] Page references are to the actual Report, not the pagination in Adobe Reader. I-I-MR X refers to Volume 1 at page X and II-I-MR X refers similarly to Volume II.

Next: Collusion vs. Conspiracy – Setting a High and Unnecessary Threshold of Proof