Category Archives: Politics

MUELLER REPORT PART I – TRUMP CANOODLING WITH RUSSIA – D

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D. The Curious Handling of the Trump Tower Meeting

Jared Kushner in fact received information about Clinton offered by Dimitri Simes, the head of a Washington think-tank, but didn’t find it useful due to its apparent staleness. The alleged source of the information was apparently not interviewed by Mueller – WHY NOT?  I-MR 108-110. Kushner never seemed to be concerned about the issue of Russian sourcing and was all too happy to meet with everyone claiming to have dirt on Clinton. I-MR 108, n. 651

Like Kushner, Trump Jr. was happy to meet with Russians in Trump Tower to get dirt on Clinton.  Trump himself, as usual, claimed to have no knowledge of the meeting and, not surprisingly, Mueller uncovered no documents indicating otherwise. I-MR 110. The Russian attorney could not produce hard evidence of Clinton wrongdoing and the Campaign then lost interest in her claims. I-MR 110

The Mueller-reported record on Trump Tower is very thin. Much of the most important information about the Trump Tower meeting appears to be redacted because it was collected through Grand Jury testimony. I-MR 110-112 Yet this is one of the most obvious cases of overt willingness of high-ranked Campaign officials to use Russian sources to get dirt on Hillary Clinton. Why was the Grand Jury the chosen instrument for investigating this crucial meeting since it would have been known by Mueller’s team that it was going to withhold the resulting testimony from public disclosure?

Rob Goldstone was then a music/events promoter and the publicist for a Russian businessman with ties to Putin. It was Goldstone who proposed the Trump Tower meeting by email to Trump Jr.  The email proposing the Trump Tower meeting refers to “Rhona” by first name only. I-MR 113. This is a reference to Rhona Graff, long- time assistant to Donald Trump, who was apparently well-known to Goldstone. THAT fact was not discussed or explained in Mueller Report.  WHY NOT? Why/how was Goldstone so familiar with Rhona Graff???

On June 6/7, Trump Jr. and Emin Agalarov (Russian real estate developer and pop singer) had “multiple brief calls,” I-MR 114, but no indication is given in the Report about what was discussed. Trump Jr. announced the meeting regarding dirt on Clinton at a regular meeting of senior Campaign staff and Trump family members, sourcing the information to Russia. Yet again, the Trump team had memory failure regarding their knowledge of the Tower meeting. I-MR 115. Trump Jr denied he had told Trump about the meeting.

WHAT are the chances that such a momentous event, as it then appeared, would not have been communicated to Trump? Of course, Manafort, Kushner and Trump himself claimed not to recall Trump being made aware of the upcoming meeting. I-MR 116. Cohen, on the other hand, understood from the tenor of the conversation that Trump had been told. I-MR 115. Trump’s general history is that he rules with an iron hand, a fact that suggests it is extremely unlikely that the possibility of acquiring killer information about his election rival would not have been communicated to him beforehand.

Trump announced on June 7 he would give a major speech the following week, likely on Monday, June 13, on “all of the things that have taken place with the Clintons,” but after the June 9 meeting, the subject was changed to national security. Trump, in his written answers to Mueller’s questions. claimed this was because of the Pulse nightclub shootings that occurred on June 12.

Mueller gives him the benefit of the doubt on this without discussing how the subject was changed and a speech prepared on one day’s notice. Trump’s written responses also claimed that the original speech was planned based on publicly available information and was in fact delivered on June 22.  I-MR 116. Such after-the-fact rationalizations deserve little credence in light of the circumstances surrounding these events and the consistent history of attempts by multiple Campaign officials to cover up or minimize the significance of contacts with Russians.

Trump Jr refused to be interviewed about the Trump Tower meeting – all other participants were interviewed except Veselnitskaya herself, she being the Russian lawyer that purportedly had the dirt on Clinton. I-MR 117.  The Report shows many Grand Jury-based redactions about what transpired at the Trump Tower meeting. Kushner left early because the promised dirt was not delivered, calling it a “waste of time.”  I-MR 118. The clear implication is that if the dirt had been forthcoming Kushner would have been pleased to accept and use it. But Veselnitskaya appeared to have nothing of substance on Clinton. Or, she was holding it back to see what leverage she could get before disclosure.

Since neither Veselnitskaya nor Trump Jr were interviewed, it is impossible to conclude that this dance with the devil was prematurely ended with no crime and no foul. In any case, this seems to be a clear case of attempted coordination. Why Mueller declined to say that remains unexplained.

In a July 2017 interview, Trump Jr, ever the law-abiding citizen, made no apologies about his role in the Trump Tower meeting, claiming he should have been able to hear what was being proposed, then consult with counsel, etc. regarding what to do next. I-MR 119. This is a perfect example of the son mimicking his father in making after-the-fact claims of honesty when his prior attempts at dishonesty have been exposed.

When public coverage of the Trump Tower meeting surfaced in July 2017, lawyers for the Trump Organization tried to engineer statements from Rob Goldstone that exonerated Trump Jr of any wrongful act or intention. Goldstone declined to issue the statements. I-MR 122.

Again, it is difficult to understand the full picture because of so many Grand Jury-based redactions, but it is highly doubtful that the lawyers were acting on their own initiative without consulting their client(s). If they in fact did act on their own, there should be no grounds for withholding information on grounds of attorney-client privilege. Again, a road not traveled by the SCO for reasons not made clear.

Next: Evidence of Conspiracy Everywhere But No Conspiracy?

MUELLER REPORT PART I – TRUMP CANOODLING WITH RUSSIA – C

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C. Campaign Officials Suffering from Failed Memories at Critical Times

George Papadopoulos was working toward a London meeting of Campaign officials with Putin staff that would be not openly endorsed by Trump. I-MR 92. Interestingly, Papadopoulos “declined to assist in deciphering his notes” about the TAG meeting and the London meeting plan. I-MR 91, n. 489. Clovis claimed not to recall attending the TAG meeting even though he was photographed sitting next to Papadopoulos. I-MR 91. Papadopoulos was dismissed from Campaign a few months later after an interview with the Russian news agency Interfax wherein he complained about the effect of Obama’s sanctions on Russia and drew unwanted attention to the developing relationship with Russia. I-MR 93, n. 493

 One of the most interesting aspects of the Report is that, when crucial issues were raised with various members of the Campaign, they experienced memory failure. This happens again and again in the investigation. A glaring and important example relates to whether Papadopoulos, having seemingly constant though irregular communications with Campaign officials about his efforts to link the Campaign with Russian support, told anyone on the Campaign staff that the Russians claimed to have email dirt on Clinton.

Papadopoulos wasn’t sure and Stephen Miller and Clovis both could not recall hearing this extraordinary information. While the Report says that no documentary evidence, including emails, showed that Papadopoulos shared the information with the Campaign, it strains credulity to believe that Papadopoulos kept this claim to himself throughout the summer when he was working so hard to convince the Campaign of the value of his Russia connections. It is also not surprising that there was no documentary evidence because the nature of the secret and the warnings from Campaign staff about the sensitivity of the Russia connection, documented in the Report would naturally lead to avoiding the creation of a paper trail.

Papadopoulos also had memory loss when questioned about his relationship with Sergei Millian, who claimed to be the head of the New York-based Russian American Chamber of Commerce. I-MR 94. Curiously, that organization’s website states that the “Chairman and Founder” of the RACC is Yelena Brezhneva. https://raccnv.com/about-us  On LinkedIn, she is listed as a real estate investment advisor in Las Vegas and also founder of the RACC. Millian is nowhere mentioned.

Millian had offered Papadopoulos access to “disruptive technology that might be instrumental in your political work for the campaign.” Trump campaign official Bo Denysyk declined Papadopoulos’ offer to connect him with Millian because there was already to much media attention to Trump’s enthusiasm for Russia. I-MR 94. There is no report about Papadopoulos’ specific response to the offer of “disruptive technology,” which is a strange omission and not explained anywhere in the Report.

The consideration of the Papadopoulos – Millian connection dries up despite further meetings between the two, in part because Millian remained out of the country during the investigation and refused requests to be interviewed. I-MR 94. It appears that Mueller simply gave up on this line of inquiry. Why?

The other point to be made here is that the Campaign people likely were aware that a lie about some action could be found out, with legal consequences for the liars (ask Michael Flynn and Michael Cohen), but a statement that “I don’t remember” is virtually bullet-proof unless extrinsic evidence exists that the person does remember; such situations are rare.

While there are substantial Grand Jury-based redactions related to Carter Page’s activities in Russia, the Report ultimately concludes that Page’s activities “were not fully explained,” suggesting there was more to be learned but for redacted reasons, there was no further opportunity. I-MR 101. Why?

As with Papadopoulos, the media focused on Page’s Russia activities in the post Republican Convention period and by late September, he was dismissed from the Campaign amidst denials from the Campaign that he had a meaningful role. I-MR 102

The pattern seemed to be that the Campaign was comfortable with the efforts of Papadopoulos and Page to generate contacts in Russia as long as it was not publicly exposed; when it was exposed, they were ousted from the Campaign. Hope Hicks issued a directive that the Campaign was to deny Page had a role even after he was announced as foreign policy advisor in March 2016. Allegedly, he was paid to do nothing for six months, then fired. There is no discussion of the Campaign payrolls to show how much Papadopoulos and Page were paid or whether there was documentation of expenses reimbursed by the Campaign. WHY is this obvious investigative technique not at least mentioned?

 Finally, let’s not forget that Jeff Sessions, Trump’s pick for Attorney General until Sessions recused himself and refused Trump’s demands to un-recuse, also could not remember what he spoke with Russian Ambassador Kislyak about at the Global Partners in Diplomacy event. I-MR 123. I understand that these oh so very important people meet so many other very important people that they can’t remember every conversation, but Kislyak was the Russian Ambassador. I, at least, believe it is more than a little odd, that Sessions could not remember anything substantive about their interaction. Maybe I just haven’t met enough very important people.

Next: The Curious Handling of the Trump Tower Meeting

 

MUELLER REPORT PART I – TRUMP CANOODLING WITH RUSSIA – B

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B. Involvement of WikiLeaks –Gaping Holes & Unresolved Issues

Immediately after the Billy Bush “grab ‘em” video, WikiLeaks released more stolen documents. How was WikiLeaks kept on such a short leash that it twice responded to developments in the US campaign by releasing documents intended to harm Clinton and offset self-inflicted harm by Trump?  Who was the link and why was the investigation ended before this party was run to ground?  [It may have been Roger Stone who is the subject of ongoing investigation covered by multiple Report redactions] GRU[1] and WikiLeaks were working together and hiding communications so that SCO efforts to collect them all were frustrated. I-MR 45. Mueller was never able to identify individuals other than Assange who were part of the DCLeaks/WikiLeaks coordination of anti-Clinton activities.

This leaves a gaping hole in the results of the investigation and raises the question why the investigation was ended before it was completed. If further efforts to identify individuals other than Assange were likely to be futile, this should have been explained.

Is it plausible that all the lying by Campaign people, I-MR 9-10, was all driven by the concern that the close association of the Campaign to Russians looked bad and was not also to cover up some deeper relationships instigated and nurtured by the Russians who had independent reasons to prefer Trump in the White House rather than the more experienced Hillary Clinton? The Russians are reputedly pretty good at dark statecraft and would likely not have made the trail easy to follow.

 We should not overlook the reasons stated by Mueller that the investigation was incomplete, including:  (1) Fifth Amendment claims by witnesses; (2) some information was “presumptively privileged,” a questionable conclusion not thoroughly explained or developed in the Report; (3) witnesses and documents outside U.S. jurisdiction; (4) some information was deleted by Trump Campaign people under investigation; some information was encrypted or simply not retained.  I-MR 10.

 Given the statement that it is possible that such information would have changed conclusions in some cases, WHY does Report not detail all instances in which (1) witnesses claimed the Fifth Amendment against self-incrimination; (2) information was deleted or (3) encrypted information was withheld?

This also raises questions about the basis for wrapping up the investigation when it was. Mueller refers to it being “late” but no explanation for that is given. Late in relation to what? If there was a deadline, what was it, who imposed it, and when was it imposed?

 Russian involvement in the 2016 election clearly had an impact; Mueller estimated tens of millions of people were exposed to fake social media information and Russian organized rallies. I-MR 26, 29. Yet, no effort was made to conclude how big an effect resulted.

 Note that Mueller did not investigate deeply the GRU intrusion into state/local administration of elections, observing that FBI, DHS and state authorities are investigating. I-MR 50.

WHAT is the status of those investigations? These activities occurred in 2016 – three years ago! Many of the states where the impacts might have been greatest were controlled by Republicans who showed no interest in protecting the electoral process from Russian interference; indeed, the record outside the Mueller investigation plainly shows multiple efforts at voter suppression in such states, all aimed at reducing Democratic voter turnout.

 The section of I-MR addressing Trump Campaign interest in WikiLeaks’ use of Russian hacked documents is heavily redacted with Harm to Ongoing Matter, indicating active investigation somewhere in the US government is continuing. I-MR 51 et seq. Again, this was some years ago. What is going on with those investigations?

Trump was personally interested in the missing Clinton emails and frustrated they had not been found. I-MR 52. Manafort was particularly interested in Clinton emails as well. I-MR 52-53. By late summer 2016, the Trump Campaign was planning a press/communications strategy based on expected further leaks of Clinton documents from Wikileaks. I-MR 54. How did Trump know this? Who was providing Trump with direct information about WikiLeaks’ plans for further document dumps? Much of the evidence is heavily redacted, but Trump had links to WikiLeaks that were producing information for him. If Campaign was planning strategy based on WikiLeaks release of Russian-stolen documents, why is this not “coordination” or at least attempted coordination with Russian hacking activities, using Mueller’s own restrictive definition? Again, no explanation.

At I-MR 59-60, there is explicit evidence of Donald Trump Jr conspiring with WikiLeaks to promote a false narrative regarding Hillary Clinton. WHY is this not overt evidence of coordination with Russians through WikiLeaks as intermediary? How can Mueller conclude, at I-MR 61, that there was no evidence of coordination between Russia and Trump campaign regarding the effort to recover Clinton’s missing 30,000 emails.

I-MR 61-62 has a discussion of Henry Oknyansky’s alleged effort to sell dirt on Clinton, promoted by Michael Caputo but concludes that information about the events was conflicted, that Alexei Rasin, who was claimed to have the information could not be found, and that the investigation could not determine the content or origin of the information. Therefore, the conclusion was that there was no evidence of a connection with Russia and this particular set of claimed dirt on Clinton. BUT this is largely inconclusive. There was much smoke but no fire could be found. As noted at outset by Mueller, the absence of evidence does not prove the absence of the fact in question.

I-MR 62-64 discusses Peter Smith’s efforts to locate the Clinton emails, including explicit claims of coordination with the Trump organization, including Flynn, Bannon and Kellyanne Conway. Mueller seems to raise the bar regarding what is probative evidence when he states that the investigation did not find evidence that any of the Trump people “initiated or directed” Smith’s work. If, for example, Bannon or Conway knew about Smith’s work and encouraged it without initiating or directing it, WHY would that not qualify as “coordination?” This is not explained. At I-MR 65, the ultimate conclusion was, in substance, that Smith had fabricated his claims of being in contact with the Russian hackers and that he had acquired the missing emails. But the key issue here is Trump Campaign coordination, not whether people like Smith were overstating what they knew.

 It has been suggested that all of this is just the work of a bunch of small-time hustlers trying to get in on the Trump action. https://bit.ly/2RWv1FT That may be true, but given that the control of the highest political office in the country was at stake, all of this smoke deserves the deepest scrutiny. The story here remains incomplete. Mueller elected to treat conflicted information as essentially neutral, giving equal weight to the “no coordination evidence.” This approach is not required in these circumstances and, given all the lying and withholding going on about the Russian connection throughout the Campaign, there is no apparent reason to treat conflicted evidence as neutral.

Mueller showed little interest in attempted conspiracy between Trump organization and Russia-connected individuals. For example, in fn 288 Mueller states that a Russian internet newspaper registered names for Trump2016.ru and DonaldTrump2016. Ru, then requested an interview by email to Hope Hicks. Mueller concludes this part of the narrative with “No interview took place.” Fine, BUT what was Hicks’ response to the email request and why is that not set out in the Report?

George Papadopoulos attended a March 31, 2016, meeting with Trump & Jeff Sessions, among others, and came away with impression that Trump, and possibly Sessions (some conflict re Sessions position) favored getting a meeting with Vladimir Putin. He pursued the idea through Joseph Mifsud and made many contacts with Russian-govt affiliated individuals. In the course of that work, he was told by Mifsud that the Russians had email dirt on Clinton. I-MR 89. On May 6, Papadopoulos told an unidentified representative of a foreign govt about the damaging emails that Russia wanted to use to hurt Clinton’s electoral chances. On July 26, 2016, after the WikiLeaks email dump, that foreign govt informed the FBI which then opened its investigation into Russian interference in the election.

At no time did Papadopoulos tell the FBI what he had learned. WHY was Papadopoulos not charged with aiding a foreign govt in defrauding the U.S.?? Papadopoulos was working for the Trump campaign at that time and had alerted the campaign about Russian interest in Trump. He believed that the Campaign wanted him to pursue the lead. What was the source of that belief? At the very least this should have been fully explained in the Report.

 Thru the spring/summer 2016, Papadopoulos kept Campaign officials aware of his efforts to arrange a meeting in Moscow with Putin thru emails to at least Lewandowski, Clovis (co-chair of Trump Campaign) and Manafort. I-MR 89. The Report barely mentions responses from any of these people. WHY?  Papadopoulos eventually suggested he personally could attend Russia meetings on behalf of the Campaign “off the record.” I-MR 90. This is an act of concealment, from which a reasonable inference can be drawn that the parties knew what they were doing was wrong.

Next: Campaign Officials Suffering from Failed Memories at Critical Times

[1] A military intelligence agency called the Main Intelligence Directorate of the General Staff, or GRU.

 

MUELLER REPORT PART I – TRUMP CANOODLING WITH RUSSIA – A

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

The investigation focused on conspiracy law because “collusion” is not in a term used in the governing criminal law. That fact may explain why Trump constantly refers to collusion in defending his conduct. While it’s technically true that the Report did not find “collusion” between the Trump Campaign and the Russian Government, the Report did not make a lot of other findings because they were equally as irrelevant as “collusion.”  For example, the Report did not find that Donald Trump is a generous person who readily contributes substantial amounts of his claimed fortune to charitable causes. Such a finding would have been (a)  untrue and (b) utterly irrelevant to the matters under investigation.

On the relevant issue of conspiracy, the Report focused on “coordination” as a factual question — limited to whether an “agreement — tacit or express — between the Trump Campaign and the Russian government” existed during the Campaign or the transition. Why Mueller thought this limitation was essential to the investigation and to any charging decisions is never explained.

It was entirely possible for the Trump Campaign to “coordinate” without an “agreement” to do so. Given Mueller’s expressed conclusion that the Campaign expected to benefit from information stolen by the Russians and the clearly established fact that high-ranking members of the Trump Campaign and family actively sought “dirt” possessed by Russia on the Clinton candidacy, “coordination” within the meaning of the conspiracy laws should not turn on the existence of an “agreement,” tacit or otherwise.

Framing the problem as Mueller did sets a bar so high that a successful investigation was likely impossible. As bad as Russia’s demonstrated electoral interference was, it was entirely feasible that “coordination” by the Trump Campaign with the Russian activities could have been accomplished without anything resembling an “agreement” between the Campaign and the Russian government. Mueller owes an explanation of why the existence of an agreement was essential to a finding of conspiracy. Would mere knowledge of what the other side was doing suffice to establish such an “agreement?” Mueller apparently thought not, but the underlying reasoning for such a counter-intuitive judgment is missing. Conspiracies are typically very hard to prove, but there was no apparent or compelling reason to get the bar so high.

Although Russians masked their operation while conducting political rallies and in doing so “made contact with…Trump campaign officials,” Mueller says the investigation uncovered no evidence of “coordination.” I-MR 4 This cries out for elaboration. Which rallies and which campaign officials? When? Are we to believe that the Trump campaign worked with unknown parties to stage political rallies and never bothered to find out with whom they were working?

A related curiosity is the question of timing the decision to end the investigation. The Report notes (I-MR 14) that the Russians masked their identity in communications with the Trump Campaign but some of those contacts are still under investigation. Per Appendix D at I-MR D-1 thru D-6, there may be as many as 14 additional investigations pending but no details or clues are provided regarding their targets or subject matter. The massive redactions from I-MR 14 to I-MR 37 suggest that the primary subject matter may be Russian interference in the election unrelated specifically to possible coordination with the Trump Campaign, but, if so, this should be clarified.

The Report says Russians released hacked materials about Clinton through Wikileaks (I-MR 4), thus implicitly indicating that Julian Assange conspired with the Russians. Mueller concedes the SCO was unable to resolve the connection between the release of the Trump “grab ‘em” tape and the same-day release of WikiLeaks documents harmful to Clinton. I-MR 36. But what was Assange’s relationship to the Trump Campaign? This is not elaborated in the Report.

 Trump personally welcomed help from WikiLeaks and the Russians. He later claimed he was speaking sarcastically, but when, in relation to investigation steps, did he make the sarcasm claim?  This is a common Trump tactic – make a dog whistle statement followed by “I was just joking” when blowback ensues.

In June 2016 a Redacted Party predicted to the Trump Campaign that WikiLeaks would release info damaging to Clinton. I-MR 5. There is more here that needs explanation to sustain the conclusion that there was no evidence of coordination.

The Report portrays the involvement of Russia and Trump Campaign’s response as having same goals – each would benefit from the other’s success – but Mueller nonetheless concludes that throughout the entire campaign, the parties somehow operated independently, though in parallel, to each other’s activities without any coordination. I-MR 5. He also concluded that Trump Campaign people did not understand they were dealing with Russians, I-MR 35, an idea that conflicts directly with the documentary prelude to the infamous Trump Tower meeting at which high Campaign officials attended in explicit expectation of receiving stolen negative information about Hillary Clinton.

During 2016, George Papadopoulos, while working for the Campaign, tried to arrange meetings to follow up information from Joseph Mifsud (identified by Mueller as a Russian agent) that Russia had dirt on Clinton. While no meetings may have resulted, why weren’t Papadopoulos’s activities at a minimum “attempts to coordinate” Is it plausible that he acted entirely on his own without communicating with other Campaign officials? What specific efforts were made to track down this crucial information? Why isn’t this covered in detail in the Report?

Indeed, why was the Trump Tower meeting not, by itself, a clear attempt to coordinate with Russia?  The information offering may have been a ruse but Campaign leaders didn’t know that and attended in expressed hopes of getting dirt on Clinton. They walked out only when the hoped-for dirt was not proffered. It’s pretty clear from the email history that if the dirt had been produced, it would have been accepted and not reported to the FBI.

Similarly, Carter Page was ousted from Campaign only after media attention drawn to his Russian connections. I-MR 6 If there had been no media attention, is there evidence the Campaign would have removed Page? Nothing in the Report suggests this would have occurred. Was there not more evidence of Page’s connections to Russia and, therefore, likely attempts to coordinate with it in support of Trump’s campaign?

Paul Manafort, then Trump Campaign Chairman, was also meeting with Konstantin Kilimnik, who had Russian intelligence contacts.  They discussed campaign strategy, including swaying Democratic voters in Midwest. Manafort shared polling data. I-MR 7 WHY is this not coordination even by Mueller’s limited definition? At the time Manafort was the trusted head of the Campaign. Why would his conduct not have been attributed to the Campaign? Why was this not addressed in the Report?

Next: Involvement of WikiLeaks –Gaping Holes & Unresolved Issues

The President Is Not Above the Law

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The Wall Street Journal’s June 1-2 Opinion piece entitled “Congress Can’t Outsource Impeachment” (at A13) is remarkable both for its deliberate distortion of the facts about the Mueller Report and the illogic of its arguments dressed in the sheep’s clothing of constitutional rigor.

One of the authors is David B. Rivkin, Jr., a partner in a big Washington DC law firm, who, according to the Federalist Society, is “lead outside counsel for the 28 States that have challenged the constitutionality of EPA’s Clean Power Plan…. He also has represented the 26 States that have challenged the constitutionality of the Patient Protection and Affordable Care Act [Obamacare].” The other author, Elizabeth Price Foley, is “of counsel” to the same law firm and a professor at Florida International University College of Law.

The Opinion piece consumes two-thirds of an entire page of the WSJ. The essential argument is that, consistently with the constitutional separation of powers, Congress may not “outsource” an investigation of the president’s conduct to any part of the Executive Branch by demanding that the Department of Justice turn over documents obtained in its own, probably unlawful, investigation of the president. Instead, according to Rivkin/Foley, Congress must somehow conduct an independent investigation, not relying on the prior work of the Executive Branch, and then only about “open and notorious” crimes and misdemeanors. Such an independent investigation, with possible impeachment as its sole possible outcome, must “articulate clear evidence” of the alleged crimes at the outset.

The article goes on to conclude that since the president oversees the Executive Branch, investigations of a sitting president by the prosecutors in that government division are also inappropriate and invite a “coup.” Thus, absent some open and obvious violation of a law, the president, in the authors’ view, is immune from accountability except by being voted out of office in the next election. He is, as a practical matter, a King of the United States while he serves. These ideas resemble very closely the thoughts and words of the current sitting president but are at total war with the meaning of the Constitution and a politically driven misrepresentation of the separation-of-powers scheme set out there.

In reaching these astonishing positions, the Opinion piece misstates the conclusions of the Mueller Report, not once, but six times! Let’s take a closer look.

The authors note that the Mueller investigation “found no wrongdoing by President Trump” and after two years of work, the Mueller team “did not find that Mr. Trump had committed crimes.” While it’s certainly true that Mueller, feeling bound by DOJ policy that forbids indicting a sitting president and for reasons of fairness (unfair to accuse but hold no trial) did not state ultimate conclusions that crimes were committed, he did in fact lay out in detail the evidence of multiple explicit attempts by Trump, directly and through subordinates, to quash/deflect/control and actually terminate the Mueller investigation. The Report then applied the law to the facts and … stopped there, for the reasons stated. But in the end,

“… if we had confidence … that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and 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.” [Mueller Report at 394]

There is no ambiguity about that statement, particularly considering the detailed legal analysis that preceded in, an analysis that thoroughly demolishes the argument of Trump’s attorney that when the president fires the FBI Director, he is exercising his constitutional authority and may not be questioned about it no matter what his motives. In those circumstances, the president argued, he is per se immune from challenge. Mueller demolished that argument in the closing sections of his report.

Rightly or wrongly [see Note at end], Mueller believed he could not reach a traditional prosecutorial finding, but that did not stop him from finding the facts and laying them against the legal standards for obstruction of justice. Mueller walked the investigative horse right up to the trough but did not drink — a far cry from finding the president was innocent. The Mueller report makes no finding that Trump did not obstruct justice and any suggestion to the contrary is, to put the best light on it, political gaslighting.

Rivkin/Foley have conflated what Mueller stated about ultimate conclusions with what Mueller reported about the facts and legal elements of obstruction of justice. The authors say that it was then Attorney General Barr’s “duty” to make the findings that Mueller declined to make, but the source of that “duty” is neither clear nor obvious. Trump’s appointed AG himself blatantly misrepresented what Mueller had found by claiming that Trump was in fact “exonerated” when Mueller explicitly said otherwise.

Rivkin/Foley repeat their misstatement of Mueller’s conclusions multiple times: “the nation’s law enforcement officials have concluded Mr. Trump has not committed any crimes;” “he was cleared by the Mueller investigation;” “criminal accusations that prosecutors have rejected;” “second-guessing the prosecutors and recasting Mr. Trump’s conduct as criminal law violations.” Repetition does not make the statements any truer. All are plainly contrary to the facts and of a piece with AG Barr’s false narrative. Indeed, it seems virtually certain that they are based entirely on Barr’s misrepresentations about the Mueller report rather than the report itself.

Distilled to its central ideas, the Rivkin/Foley argument comes down to this:

  • Congress must conduct its own investigation of the facts if it wants to consider impeaching the president – it can’t just collect the documents Mueller found/created because Mueller doesn’t work for Congress; that would be “outsourcing” and outsourcing is bad;
  • The only potentially impeachable conduct is “open and notorious” such as an overt refusal to follow a law directed at the president’s execution of his duties; they cite the example of Andrew Johnson’s firing of War Secretary Edwin Stanton in “open defiance” of the Tenure in Office Act;
  • Impeachment can only begin when Congress is able to “articulate clear evidence” of high crimes and misdemeanors.

The practical effect of this approach is that the president can be neither investigated nor impeached by either the Executive Branch (FBI/DOJ) or Congress.

How then is Congress to “articulate clear evidence” when it has to, in effect, recreate the entire Mueller investigation from scratch? If the standard is that the “high crimes and misdemeanors,” in order to be impeachable, must be conducted openly and obviously in public by refusing to follow an explicit statutory command, how does the country deal with a president who, like Donald Trump, operated behind the public screen, using intermediaries to direct much of his dirty work of suppressing investigation, urging/threatening witnesses to secure false testimony and all the rest that is set out in nauseating detail in Mueller’s report?

Rivkin/Foley want this both ways, with the end result that the president cannot be investigated or held to account for obstruction of justice at all. And, in truth, they concede this at about the two-thirds mark in their exegesis when they dispute Mueller’s argument that the president may be guilty of obstruction of justice, even when purportedly carrying out his Executive Branch authority, by firing the FBI Director when he has corrupt motives to protect himself personally rather than to execute some policy within his constitutional authority. In the authors’ view, the president is simply and totally immune from accountability in such cases. Neither the Executive Branch nor Congress can investigate him and, since the courts are not equipped to conduct such activities at all, there is no one left but King Donald.

With all due respect, there are no kings in America. That’s one of the main reasons the Revolutionary War was fought. So much blood was not shed to put in place a system in which an elected executive becomes a ruler above the reach of law. Mueller’s report, at 181, states it well:

… the protection of the criminal justice system from corrupt acts by any person – including the President – accords with the fundamental principle of our government that “[n]o [person] in this country is so high that he is above the law. [case cites omitted; italics added]”

Note to Readers: I have finished reading the entire Mueller Report, all 448 pages. While I appear to be defending the Report in the above post, I rely on it mainly to prevent the distortion of its meaning, however constrained, as Trump’s supporters continue trying to rewrite history in his favor. I am convinced that Mueller made catastrophically poor decisions in the course of the investigation that led to outcomes far short of what was justified by the facts uncovered, among other shortcomings. I will shortly be posting a series of articles analyzing the Report in detail, so stay tuned.

Game of Thrones – Realpolitik

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This post may not sit well with the folks who think the final episodes of Game of Thrones were a matter of great public importance, enough to warrant a million-signature petition for a final season redo. If you are one of those people, you probably should stop reading now.

For a brief recap, the show ends with:

… the Queen’s Hand has committed a blatant act of treason out of some familial loyalty to his brother who has been sleeping with his sister and has been imprisoned, pending his inevitable execution …

… the putative heroine has turned into a mass murderer, destroyer of all she surveys, women and children included;

… the Hand, assessing his difficult situation, importunes the Queen’s incestuous lover, and the true heir to the Iron Throne, to undo the Queen because, well, you know, she’s not who we thought she was …

… the Queen’s newly discovered relative, rote repeater of “she’s my Queen, she’s my Queen” right up to the point where he drives some Valerian steel into her heart, is so now “not my Queen;”

… a “council” of somebodies sits down in the shade to decide who will replace the dearly departed and one of them suggests, to much amusement, a plebiscite of “everyone” to decide who should rule the Seven Kingdoms, to which one “nobleman” in best form, suggests they let his horse vote, ahhahahaha, but …

… when it’s clear Sansa isn’t going to be chosen, she reduces the “Seven Kingdoms” to six by simply saying “not the North” and please sit down, Samwell Tarly, you idiot … and he does; thus does democracy die in the Six Kingdoms …

… and so they pick Bran whose leadership skills are … not self-evident … but perhaps he means well, though one must wonder about his first big decision to make the Queen’s former Hand his Hand so the Hand can “correct his many mistakes” in the future, a fate apparently deemed worse than death in those parts …

… and that’s a wrap … except

… the murderer of the Queen is banished back to the Black Watch and the Wall, which no longer has a purpose now that the White Walkers have been destroyed, and accepts his fate without so much as a quarrel about the inequity of it all, and …

… the one person who could upend the entire scheme is the brown-skinned guy, the slaughter-in-chief, Grey Worm, leader of the Unsullied and recently decorated as head of the Queen’s Army or something like that, due to his valor and fantastic killing skills, except there’s no Queen now and the “council” is letting the murderer off easy…

… and so Grey Worm effectively dictates the punishment, short of death, of the Queen’s murderer…

There are probably more “morals of the story” in Game of Thrones than in the typical fairy tale but for me the two principal lessons are clear:

  • power corrupts and absolute power corrupts absolutely, and
  • the absence of checks and balances in a government will inevitably lead to dangerous outcomes.

The first is too obvious to need much elaboration. Daenerys Targaryen still has one full-grown dragon near the end, plus the loyalty of the miraculously surviving and bloodthirsty Dothraki and Unsullied armies. It’s hard to load more power in one person than that and Daenerys obviously relishes her position – total victory — and, as she “explains” to no one’s great surprise, there are many more battles yet to be fought as she reconstructs the “world” in the image she has in her mind. Daenerys Targaryen thus ends up as the comic book heroine and villain.

The second moral point is more important because less obvious. This principle is what makes Game of Thrones relevant to the world we live in now. In the end, with the “city” of Kings Landing in ruins, the Queen is unbounded. She is defeated only by a final act of hubris, in which she believes that Jon Snow (whom she loves at least as long as he doesn’t challenge her “right” to the Iron Throne) will not harm her, misapprehending completely the mental state of a man who has already been dead once and to all outward appearances seems dazed and uncomprehending of how things have devolved to this sorry state. Love is blind, as the saying goes.

Now the fate of the “world,” as defined by the Seven Kingdoms, is left in the hands of the “council.” The only real power in the scene is Grey Worm who, with a nod of his head, could bring the “military” to terminate the council in a heartbeat. Yet, he resists the direct and deadly use of his power, insisting, however, that Jon Snow be properly punished for his crime against the Queen.

So, ultimately, peace seems to prevail, only because the parties have inadvertently stumbled into a place where the most powerful player, the commander of force, turns out to be sensible and not interested in leveraging his position beyond seeing some form of justice done as to Jon Snow. Grey Worm turns out, then, to be perhaps the best of the men in the entire story. He stays his hand in the interest of peace when he could easily just take control.

There is no mistaking that Grey Worm is the key power player in the end. It was that “check and balance” that operated to “solve” the problem of Jon Snow and to give the “politicians” space in which to negotiate their peace with each other. As improbable as that final outcome may have been, and I’ll leave that to others to debate, the point in the end was that absent Grey Worm’s steady hand, there is no telling what could have happened as the others jockeyed for position. At the same time, we can see that if the only obstacle to the politicians dividing up the world, is the one with “force” at his command, the potential for continued instability is high. You upset Grey Worm at your peril.

That principle – checks and balances – was set up in a three-part scheme by the Framers of the U.S. Constitution. The 3-way regime has served the country pretty well until 2016 when 2/3 of the checks fell into the hands of one party, and a criminal was placed in charge of the executive branch.  The balance was somewhat restored in 2018 but the Trump administration continues to undermine the Judicial Branch by nominating and approving, through its control of the Senate, judges who are ideologues and, in some cases, plainly lacking relevant experience and demonstrated judicial temperament.

We are, therefore, at a precipice, not unlike the one that the “council” in Game of Thrones faced. The sitting president has already begun to suggest that he may not respect the outcome of the 2020 election, so we may yet be looking to the leaders of the “force” component of government to decide whether we will continue to be democracy or something else. The result may turn on a Grey Worm yet again. Our fate will then depend on his being as sensible as the “real” Grey Worm.

Trump’s Presidency – the Real Game of Thrones

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I have just read that the Trump administration has refused to sign an international agreement involving New Zealand, France and the top social media companies headquartered in the United State that would combat online extremism. The cited objection: the First Amendment to the United States Constitution. While mouthing its general agreement that online extremism is a serious problem, the Trump administration suddenly is concerned that policies designed to more aggressively strike at the use of online platforms to promote extremist and violent behavior will conflict with freedom of speech guaranteed by the First Amendment.

This comes from the same president who, in the wake of the white supremacist/neo-Nazi march in Charlottesville declared there were “good people on both sides.” The same president who has declined multiple opportunities to take aggressive positions against extremist right-wing activities. The same president who ignores the all-too-frequent episodes of white assassins slaughtering children in schools and Muslims in their churches while jumping at every chance to complain that an immigrant person of color was involved in some crime.

This from the same president who has, dozens, if not more, times described the media as the “enemy of the people.”

So much for Trump’s concerns about the First Amendment. The truth is that Donald Trump supports online extremism from the racist right-wing white male cohort that produces most of it and that supports him no matter what he says or does. Trump cares nothing about the First Amendment except for its utility as a whipping boy when members of the free press speak negatively about him.

In this, as in most other things, Trump is a lying traitor to the United States.

Think that’s too strong? I have also just read that Trump’s attorneys have argued in litigation challenging a subpoena from the House Oversight and Reform Committee for Trump financial records. Trump’s attorneys maintain that Congress may not investigate the president regarding violations of the law, but only about matters that have a “legitimate legislative purpose.” That position expressly bars Congress from looking into whether the president was personally financially involved in a conflict of interest arising out of a particular piece of legislation.

The ironies of these arguments are almost too glaring to comprehend. There is no question that Congress has the power to bring impeachment proceedings against a sitting president for “Treason, Bribery, or other high Crimes and Misdemeanors.” The president’s lawyers seem to argue that, despite the wording, the impeachment clause refers to something other than “law enforcement.” That position is not only contrary to the Constitutional language, the principle of separation of powers and plain common sense, it also sets up the president as a person who can, with impunity, violate the law, violate his oath of office, and, generally, act like a king, above reproach, immune to sanction, free to act as he wants without restraint.

There is one irreducible fact about the U.S. Constitution that no amount of legal legerdemain can overcome: the Framers of the Constitution intended to preclude the assumption of kingly powers by the future chief executive of the government under Article II. Trump’s lawyers appear to have forgotten the reasons the War of Independence was fought. It is also commonly called the Revolutionary War — it was a revolution against the tyranny of the English crown, the claimed right of the King of England to treat American colonists however he wanted, above reproach, immune to sanction, free to act as he wanted without restraint.

Trump is now also hinting that he may not respect the outcome of the election that will consider his replacement in 2020. It is only a short step from that position to a claim that he doesn’t actually have to stand for re-election at all, that he can simply suspend the “rigged” election and remain in office as long as he wants.

If that is where Trump and his enablers in the Republican Party are headed, I then suggest, in all seriousness, that we will have a second American Revolution that will remove him from office one way or the other way. If it comes to that, his promoters like Senator Lindsey Graham will face a similar fate. This is the same Senator Lindsey Graham who, in February 2016, stated in public that Donald Trump was a “kook” and “crazy“ and not fit for office,” among many similar statements. It’s all on video: https://www.buzzfeednews.com/article/tomnamako/kook Now Graham is Trump’s most ardent supporter but he has nowhere to hide from his treachery. Nothing about Trump has changed for the better since Graham accurately described him in 2016. Graham, like Trump, is unprincipled and apparently willing to say and do anything to keep Trump, and himself, in power.

It is hard to imagine that the courts will sustain Trump’s argument that he is above the reach of law, but anything is possible. Everyone must pay close attention to what may seem like peripheral legal squabbling but is in truth laying the groundwork for a repudiation of the Constitution.

Journalism and Democracy

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I have just finished Breaking News: The Remaking of Journalism and Why It Matters Now by Alan Rusbridger.

Based on the title, you might think this book is all about Donald Trump and his attempt to sell the idea that the press is the “enemy of the people.” While the Trump menace to freedom of the press is mentioned, the book is not mainly about that. It’s about the process by which The Guardian, one of the UK’s most storied newspapers, has navigated, with varying success, the rocky path from the traditional ways of journalism to the world brought about by the internet and the digital globalization of information.

Rusbridger is not a household name in the United States like, perhaps, Ben Bradlee of the Washington Post. Rusbridger was editor-in-chief of The Guardian from 1995 to 2015, the seminal period during which the digital challenge to top-down journalism manifested and ran roughshod over traditional ways of delivering the “news.” He is, among other things, a hell of a great writer and a compelling storyteller who confesses throughout that he was usually at a loss to know what to do to save The Guardian from financial destruction and from loss of its moral compass.

Rusbridger’s book is a remarkable explanation of the transition from a news operation funded by a trust, but still dependent upon advertising revenues for survival, to a multi-element news machine adapting to the digital age. Some of the financial details may challenge your interest, but the overall story line is as powerful as anything in great fiction. But, of course, it’s not fiction, not fake news, but truth.

Along the way, Rusbridger explores the meaning of “news” in a digital world, how news is discovered, vetted for importance and interest, and delivered to a global audience still interested in “truth” mediated by trusted investigators, writers, editors and publishers. He narrates the stories of Wikileaks (Julian Assange) and Edward Snowden and the issues their pilfered documents raised about what was responsible to publish, how governments attempted to prevent publication and much else. Readers from my generation will, of course, remember Daniel Ellsberg, the Pentagon Papers, the New York Times and the ultimate victory in court that enabled the world to understand how the United States government had misled the people about the Vietnam War. Even then, the Nixon administration tried to imprison Neal Sheehan under the Espionage Act for his journalism in breaking the story.

The struggle over the Snowden documents was no less dramatic with the special twist – something I did not know – that the United Kingdom has no equivalent to the First Amendment to the U.S. Constitution guaranteeing freedom of the press. In the UK publishers, editors and even individual journalists are subject to lawsuits by “offended” parties, including giant corporations, who object to unfavorable news being published about them. Even members of Parliament and the British government itself were ominously threatening to punish difficult publish/don’t publish decisions about matters to which they took serious umbrage. Editors could go to jail for publishing the “wrong stories.”

Early in the book, Rusbridger discusses the period during which UK competitors of The Guardian began to dumb down their news to attract eyes, with considerable success and adverse effects on more traditional news organization that continued to publish in the old style. The conflict is described as “an ongoing concern for complexity, facts and nuance versus a drift towards impact, opinion and simplicity.” [Breaking News at 91] In ruminating about the divergent paths before them, Rusbridger raises question to which no ready answers existed at the time or even now [Id. at 92-93]

“What … should a news organization do, faced with legions of apathetic readers?

Did we have any kind of responsibility to tell our readers things they might not think they wanted to know?

Would a move to less complexity end up reinforcing a pattern of ignorance, or carelessness about things that ultimately do matter to us all? … Most of public life was not faithfully representable in either black or white. Somebody – surely – had the duty to paint in the greys.

Fast-forwarding to the second decade of this century, Rusbridger observes that “an ever-more polarized public – favouring either black or white answers to complicated problems – had lost either interest or trust in a world of greys.”

Another interesting observation lies in the discussion of the “long tail” of news. In traditional newspaper journalism, the story was developed during the day, published late and delivered for morning consumption. The story was effectively “over” until at least the next day’s paper was distributed. In the digital world of social media, however, “a story had a life independent of the news organization which created it.” Breaking News at 157. The story “was now a living thing – being shared, critiqued, rubbished, celebrated, clarified, responded to, rendered irrelevant, added to, challenged – maybe all of the above – while [the reporter] was trying to take a well-earned break.”

The battle that ensued after The Guardian published some of Snowden’s documents led many UK papers to line up against The Guardian. Rusbridger listed a series of legal challenges over the years to newspapers’ publication of controversial material, almost always sustained by the courts. Rusbridger:

“Journalists may often make wrong  decisions – but the assumption has to be that newspapers are free to make those wrong decisions and, if necessary, be held responsible afterwards. It was so strange to see writers and editors in 2013 willing to concede this principle when judges had, in general, been so much more robust in their defence of the press.” [Breaking News 321]

The attacks on The Guardian will look familiar to anyone paying attention to the rhetoric of Donald Trump who, in his paranoid desperation to deflect criticism, has labeled the press the “enemy of the people.” Rusbridger discusses that and the issue of “fake news” at length in the Epilogue to the book. Of course, his views will be of no interest to people who have forfeited their ability to think in favor of abject adoration of everything Trump. For the rest, though, whom I still believe to be the majority, the centrality of a free press to the survival of democracy will resonate. The current challenge to genuine journalism is deadly serious, one among many such threats that now arise from the kleptocracy that Trump and his family, with full support of the Republican Party, seeks to establish in the United States.

The story of The Guardian is our story as well and should be read by everyone who cares about the survival of democracy and personal freedom in America.

Best of Enemies – See It

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We saw the movie, Best of Enemies, last night. The theater was only about half full, which was too bad for the people who missed a really engaging story, based on a true story. The acting by Taraji P. Hensen and Sam Rockwell was Oscar-level with a nicely nuanced minor-role performance by Anne Heche as the wife of Ku Klux Klan leader C.P. Ellis.

Without giving away anything, the basic story is that, by 1971, Durham NC had desegregated most of its public facilities but not the schools. You will recall that the seminal Supreme Court school-desegregation decision in Brown v. Board of Education was handed down in 1954.

The elementary school attended by black activist Ann Atwater’s daughter is all but destroyed in a massive fire. There are hints that the Klan caused the fire but that line is never explored. No one messes with the Klan in 1971 Durham …. except Ann Atwater. Like some modern-day resisters, she takes plenty of grief but gives some back through sheer grit and determination.

The central drama centers around a “charrette” led by a black man. The Oxford English dictionary defines “charrette” as “A public meeting or workshop devoted to a concerted effort to solve a problem or plan the design of something.” In the movie it is the equivalent of a mediation involving the entire community with blacks and whites in the same room but largely sitting on opposite sides of the center aisle.  The goal is to address the issue of what to do with the black kids that must attend school somewhere to finish their academic year while their school is repaired. The logical choice, of course, is to move them to the closest “white school.”

I must say that we both thought there was considerable sugar-coating of the interactions in the charrette, given the level of racial hostility and general mistrust, not to mention endemic ignorance among most members of the white community. But there is drama enough.

What I found most interesting was the role of the Klan in the town. They had completely corrupted the power structure and were cruel and efficient in the methods they used to suppress dissent from their “white power” creed. Recalling my own upbringing in a large (for the times) southern city, I never saw the overt presence of the Klan but its “philosophy” was ever present in the mentality of most white adults and the children in whom they inculcated their deeply racist view of the world. I grew up in a town where there were still “whites only” and “colored only” water fountains side by side in the local Sears store.

In 1971 Durham, the ability of the Klan to function more or less in the open and unchallenged rested to a significant degree on the isolation of its victims. No digital communications network existed that could instantly transmit information or alarms to summon help. An individual person, particularly a woman, living alone was especially vulnerable. And if the Klan was good at nothing else, it knew very well how to exploit that isolation to instill terror without fear of reprisal.

If you see this excellent movie, and you should, observe the Klan at work and think about what made it possible, even in the presence of many right-thinking white people, to press its “whites are superior” message on everyone in the community. The movie will almost certainly lead you to think about the contemporary parallels in the racist tropes spread by the current president and the Republican Party as well as the emergence from the shadows of the Klan or Klan-like acolytes who have been in hiding all these years, waiting for their Grand Dragon to call them out again.

Redactions of Mueller Report Must Be Coded

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Anyone with experience in redacted documents knows that every document tells a story, or at least part of one. A skilled redactor working, for example, to assert attorney-client privilege can render the story told by a document meaningless and destroy its role in piecing together the larger story.

As the day for release of the redacted version of Mueller’s report draws nearer, the relevant Congressional committees should make clear that merely blacking out sections of the report will not be accepted. If there are legitimate reasons for redactions, they should be coded with a legend that makes clear the basis for each and every redaction. The known candidates appear to be: (1) grand jury material required by law to remain undisclosed, (2) material that might reveal counter-intelligence content or methods that would damage national security, and (3) executive privilege asserted by the president.

Deciphering a document involving so many possible redaction rights will be next to impossible unless each is specifically supported by one of those three considerations. And each redaction must be limited strictly to what is absolutely required by the relevant privilege. If, for example, a statement is sourced to an intelligence branch but the statement itself is not sensitive, then the statement should not be redacted; only the source of the statement may be redacted.

The need for this approach is particularly acute in the case of the Mueller report because we know that the Attorney General is disposed to protect Trump at virtually any cost. We also have reason for suspicion because of reports that members of the Mueller investigative team have expressed concerns that the AG’s “summary” of the report did not properly convey the content of evidence related to, among other things, collusion with Russia. The White House has, typically, flip flopped like a fish on the dock as to whether it accepted that the Mueller report should be publicly disclosed. Trump would be more than happy with disclosure if he were as sure as he claims that the report exonerates him. Finally, the matter at hand involves the some of the most serious of possible misconduct by the nation’s chief executive, including possible grounds for impeachment.

For all those reasons at least, the coding of all redactions is essential to preserving the public’s right to know as much as possible about whether the president of the United States colluded with Russia to win the 2016 election and the evidence indicating that he obstructed justice in multiple public and still undisclosed actions.