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Mueller Report Part II – Trump Guilty of Obstruction of Justice – D

D. Why Weren’t Trump’s Enablers Indicted?

One of the great lingering mysteries about Mueller’s treatment of the obstruction issues is why he did not secure indictments of Trump’s enablers when the evidence clearly indicated their involvement in promoting the obstruction that Trump was executing. One prominent example of this is K.T. McFarland, who seemed to act as a go-between for Trump to direct Michael Flynn. It is implausible, I suggest, to believe that McFarland would not have revealed discussions with Flynn and Russian Ambassador Kislyak in meeting with Trump one hour after talking to Flynn about those discussions. II MR-25. As referenced earlier in these posts, Flynn had multiple memory failure about the information he may have discussed with other administration officials and Trump himself. The Russian response to the US sanctions was apparently a matter of considerable importance to Trump and his administration. Given Flynn’s admission of lying about his contacts with Kislyak, it is very hard to conclude that these memory failures were legitimate and that neither Trump nor his principal enablers were kept in the dark.

Beyond all that, McFarland followed Flynn’s directions to tell the Washington Post that no discussion of sanctions had occurred with Kislyak. Mueller specifically says, “McFarland made the call as Flynn had requested although she knew she was providing false information….” II MR-29. No charges were brought against McFarland for her role in this ruse. Why not?

Putting aside the further implausibility of Trump, after a lifetime of litigation and political commentary, denying that he understood the law, one thing is clear: as of January 26, 2017, Don McGahn, White House counsel, explained both 18 USC 1001 (crime to lie to federal government) and the Logan Act (crime for citizen of U.S. to communicate with a foreign government with intent to influence the foreign government in relation to disputes with the U.S. or to defeat the measures of the U.S.). II MR-31.

Rather than extending this already-long narrative about the multiple situations in which credible evidence shows Trump committed obstruction of justice and possibly other crimes, I want to raise some questions about the obstruction investigation that cry out for answers but are not explained in the Mueller Report.

One of the big ones relates to the visits by Acting Attorney General Sally Yates to the White House to explain that the Justice Department had evidence indicating Gen. Flynn had been compromised by his lies about interactions with Russian Ambassador Kislyak. When Yates returned to the White House on January 27, 2017, at the request of White House counsel Don McGahn, he asked to see the information DOJ had on Flynn’s contacts with Kislyak. This information was provided! II MR-33, n. 166. It was reviewed by John Eisenberg, legal advisor to the National Security Council. Why did the Acting AG think it was a good idea to provide the evidence to the White House in light of Trump’s history of denying Russian influence in the election and lying about events related to it? Why would Yates think that the White House would act against Flynn?

As it turned out, that was the same day that Trump invited FBI Director Comey to a private dinner at the White House, disregarding not for the first nor last time, the advice of White House counsel to avoid the appearance of political interference with law enforcement. II MR-33. That, of course, was the dinner at which Trump demanded “loyalty” from Comey. II MR-34. Both Press Secretary Sanders and counsel McGahn adopted Trump’s denials of the “loyalty” demand, thereby making themselves collaborators in what Mueller concluded, based on all the evidence, was a series of Trump lies about what transpired. II MR-35, 36 and 35, n. 183. Yet, neither Sanders nor McGahn was indicted. Why not?

In the end, Trump reluctantly fired Flynn while assuring him that he would be taken care of. II MR-38. The very next day Trump cleared a meeting room of witnesses and asked Comey to let Flynn go. II MR-40. Astoundingly, Jared Kushner, one of those dismissed, claimed he could not remember that Trump asked Comey to remain behind for a private meeting. II MR-40, n. 233. Trump continued to assure Flynn of his kind regard for him into late March or early April. II MR-44.

Trump continued to lie about the Flynn situation, going so far as to claim he did not recall the “loyalty” meeting at all. II MR-44. Trump insiders Priebus & McGahn minced words regarding Trump’s attempts to call off Comey from the Flynn investigation. II MR-44, n. 270.

Mueller Report Part II – Trump Guilty of Obstruction of Justice-B, C

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B. Governing Legal Standards

Little value can be gained by repeating Mueller’s recitation of the legal standards for judging whether criminal obstruction of justice has occurred. Of the three tests (obstructive acts, nexus to a pending or contemplated official proceeding and corrupt intent), the Report conclusively shows (1) multiple, repeated obstructive acts by Trump personally, in some of which he was aided and abetted by members of the White House staff and (2) clear nexus to multiple investigations, including some of the obstructive acts themselves.

Given the rhetorical and other linguistic hoops that Trump and his attorneys/advisors have been willing to jump through to defend him, it is worth nothing that Mueller made plain that “an improper motive can render an actor’s conduct criminal even when the conduct would otherwise be lawful and within the actor’s authority.” II MR-9. Equally, if not more, important, is Mueller’s determination that criminal obstruction can exist even if the attempt is unsuccessful. II MR-12. It also includes “witness tampering” and attempts to influence others not to cooperate with law enforcement. II MR-10, 11, 12.

C. Trump’s Refusal to Cooperate

Mueller’s treatment of the president is noteworthy and inexplicable in several ways, given the gravity of what was being investigated.

Mueller allowed Trump to dither away a year following the SCO’s request for a voluntary interview. II MR-13 Trump ultimately agreed to answer some written questions about “Russia-related topics” but refused to answer any questions regarding obstruction of justice or events occurring during the transition. Despite concluding that the SCO had both the authority and the legal justification for a grand jury subpoena of Trump, the SCO decided not to force the issue. The SCO reasoning behind this extraordinary decision was that a such a late stage in the investigation, a subpoena, and the inevitable legal dispute to follow, could result in a “substantial delay.” The SCO also believed it had separately found evidence sufficient to “understand relevant events and to make certain assessments” even without Trump’s personal testimony. II MR-13.

This decision is quite remarkable. The investigation was in a “late stage” because Mueller had allowed Trump to fend off a decision and play an obvious delaying game for an entire year. Moreover, the statement that the investigation was at a late stage was not explained in the Report. Was there an internally-imposed deadline on when the investigation had to conclude? If so, who imposed that deadline and when? If not, then the “late stage” rationalization is pure vapor and another example of kid-glove treatment for a person as to whom substantial evidence existed of multiple acts of obstruction of justice. The decision left the SCO to infer conclusions based on circumstantial evidence in some cases and, while this is normal and often unavoidable (II MR-13), there was no compelling reason for the SCO to allow itself to be maneuvered into this position. Moreover, the credibility factors that apply in assessing testimony, enumerated by Mueller in details (II MR-14) all would work against Trump.

The ultimate outcome of Mueller’s reticence was that the door was opened for Attorney General Barr to declare falsely that the case was not even close and that Trump was innocent of all the charges. This opportunity to undermine the credibility of the Mueller investigation traces directly back to the strategic mistake of allowing Trump to avoid testifying.

The bulk of Volume II of the Mueller Report is devoted to a lawyerly application of the three obstruction elements to the various discrete situations in which Trump or his enablers in the White House or elsewhere attempted, one way or another, to derail the Russia investigation and any evaluation of his acts of obstruction. Several major points stand out.

First, Trump lied about numerous events. For anyone following the arc of his presidency with a reasonably open mind, this comes as no surprise. One obvious lie, for example, was Trump’s claim that he had no business dealings in Russia. II MR-15. An interesting thing to note is that as regards WikiLeaks release of Clinton’s emails, there was evidence Trump was plugged into the information pipeline about what WikiLeaks was planning to do. II MR-18. That portion of the Report is heavily redacted, indicating on-going investigation into the WikiLeaks connections. Mueller’s refusal to discuss the Report publicly leaves us to wonder what this on-going matter is about, a subject that should be pursued in his upcoming public testimony before Congress.

Mueller also notes that the Campaign tried to distance itself from people who were publicly identified as connected to Russians. Vice President Pence joined in the denials of Russia connections. II MR 20-21. All these moves are equally, if not more, plausible as efforts to conceal the Russia connection by outwardly disassociating from campaign people whose connections became known and publicized. Mueller also cites the opinion of unnamed Trump advisors for the point that Trump genuinely believed the stories about Russia connections undermined the legitimacy of his electoral victory. II MR-23. No doubt the stories did have that effect because the Russian support for Trump plainly does de-legitimize his standing as a “duly elected” president.

The inclusion and apparent full crediting of these statements from Trump campaign insiders, without Trump himself being questioned, seems designed to buttress the idea that Trump genuinely believed the Russian interference was a false story designed to undermine his legitimacy. But even if true, these claims about what he was thinking are entirely self-serving and based on interested 3rd party statements not supported by his own testimony under examination.

Mueller Report Part II – Trump Guilty of Obstruction of Justice-A

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In many ways, the obstruction of justice issue is the easiest to understand. But, among other factors, because the Attorney General, a Trump appointee, took it upon himself to assert publicly conclusions that the Mueller Report plainly did not reach, the question has been clouded in the public mind. Republican lackies for the president, and the President himself, continue to repeat the AG’s lies about the Report.

The following analysis will endeavor to tell the truth about the Mueller Report and to ask fair questions that remain in the Report’s wake and as a result of Mueller’s refusal to speak about the substance of the Report.

A. Declining to Decide – Why Was This Not Disclosed at the Outset?

The Report opens with a summary statement of five major-impact concepts that shaped the investigation and the Report as its outcome (the Report says there are only four, but a careful reading indicates five).

The Office of Special Counsel (OSC) accepted the 2000 Justice Department legal conclusion that a sitting president could not be indicted – the Report refers to this as a limitation on “prosecutorial jurisdiction;” II MR 1.
The OSC believed, independent of the Justice Department’s opinion about constitutional constraints, indictment of the sitting president would “place burdens on the President’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct.” II MR 1.
Investigation is nonetheless permitted during the presidential term, immunity does not follow the person after presidential service is over and, very importantly: “if individuals other than the President committed an obstruction offense, they may be prosecuted at this time.” II MR 1.
The OSC decided not to apply an “approach that could potentially result in a judgment that the President committed crimes” because it would be unfair to make such findings when the opportunity for a speedy trial on the charges would not be possible. II MR 2
Notwithstanding (4) above, if the OSC concluded that the president did not commit crimes, it would have so stated, but it could not so state based on the evidence developed; therefore, the Report neither accuses nor exonerates the president. II MR 2

These introductory words in the Report raise many questions, among them:

If the SCO knew at the outset that it would not issue indictments, why was this not disclosed at the beginning?
I will go into this in much more detail later, but given the overwhelming evidence that Trump engaged in multiple acts of obstruction, why was not a single person indicted from his staff, his cabinet and in the Republican Party that supported his every falsehood and deflection?
How was the investigative approach altered to assure that a “judgment that the President committed crimes” was not the result?
Why was the Special Counsel prepared, if the evidence supported it, to publish a conclusion that the president was innocent of obstruction while being unwilling/unable to publish a conclusion that crimes were committed even if the evidence overwhelmingly supported that judgment? In light of this, the worst that the president could have faced was a finding that the evidence did not exonerate him. Considering that the alternative, an indictment, was never a possibility, Trump easily could see the outcome as a victory. And he did. And it appears that, at least in that sense, this was inevitable. The deck was stacked in Trump’s favor from the beginning.
Was Mueller’s “no finding of innocence” a kind of double wink, saying, in effect, “my hands were tied, but here’s the evidence for Congress to make the obvious conclusion of guilt and impeach? Maybe, but that seems pretty naïve considering that, until the 2018 mid-term elections, Republicans controlled both houses of Congress and still control the Senate.

I’m not going to go into the details here, but I studied the entire 2000 Justice Department opinion finding that indictment of a sitting president is unconstitutional and it is remarkable in its presumption of undemonstrated facts. It employs extreme language when discussing the presumed burden on the president of having to defend an indictment while in office and seems to be written more to justify a pre-determined result than to analyze the situation neutrally. Like the Mueller investigation itself, the 2000 OLC opinion, like the 1973 opinion that it confirms, seems to have a pre-ordained outcome. Considering that the current occupant of the White House spends little time actually doing presidential work, the overblown language of the OLC opinions rings hollow, turning, as it does, entirely on the presumed interference with presidential responsibilities of the obligation to defend criminal charges.

Turning to the matter at hand, the Mueller Report begins with a summary of the “issues and events” that were examined for obstruction evidence. It includes:

(1) Trump’s lies about his business interests in Russia;

(2) Michael Flynn’s lies about his contacts with Russian Ambassador Kislyak;

(3) Trump’s attempt to extract loyalty commitments and a pledge to leave Flynn alone from then FBI Director Comey;

(4) Trump’s attempt to direct his Deputy National Security Advisor (K.T. McFarland) to produce a letter falsely stating the president had not directed Flynn to discuss U.S. sanctions with Kislyak (why would Trump try to manufacture evidence that he was innocent of soliciting help from Russia if he were innocent?);

(5) Trump’s attempt to prevent Attorney General Jeff Sessions from recusing himself regarding the Russia investigation;

(6) Trump’s attempt to use U.S. intelligence officials and again the FBI Director to make public statements exonerating him from involvement in Russian election interference;

(7) Trump’s firing of FBI Director Comey for the expressed purpose of relieving himself of the Russia investigation;

(8) Trump’s manipulation of the Comey firing letter to make it appear the firing was based on DOJ recommendations when in fact Trump had decided to fire Comey before hearing from DO;

(9) Trump’s attempt to have White House counsel tell the Acting Attorney General that the Special Counsel had conflicts of interest and must be fired;

(10) Trump’s attempt to limit Special Counsel to investigating future election meddling;

(11) Trump’s false narrative about the origins of the Trump Tower meeting, including repeated false denials by his personal attorney that Trump had any role in Trump Jr’s statement about the meeting;

(12) Trump’s attempts to pressure Sessions into un-recusing regarding the Russia investigation;

(13) Trump’s attempts to have White House counsel McGahn falsely state that Trump had not ordered him to have the Special Counsel removed; and

(14) Trump’s attempt to influence testimony from Flynn, Manafort and Cohen, including involvement by Trump’s personal attorney.

The Report then went through a most curious “on the one hand, on the other hand,” regarding Trump’s possible motives for interfering in the SCO investigation, defined by the point at which Trump became aware that he was personally under investigation. Mueller referred to these as “overarching factual issues.” II MR-7. Mueller expressed concern that some of Trump’s actions were within his Article II authority and that his motives should be judged in light of the fact that the investigation found no underlying crime in the Russia investigation, even though such a finding was unnecessary and despite the fact that Trump acted, throughout the entire period, as if he were guilty. II MR-7. Here, Mueller seems to have forgotten his own admonition that the absence of discovered evidence of participation in Russian interference was not proof that no such participation occurred. Finally, Mueller cites the fact that some of Trump’s allegedly obstructive conduct took place in public, although, again, the harm done would be the same for public as for secretive obstructive acts. II MR-7.

My sense of this odd insertion into the Report is that Mueller is revealing a disinclination to hold the president to account when he can’t indict. He is, in effect, gilding the lily in favor of Trump. However, in next analyzing various defenses asserted by Trump’s attorneys, Mueller concludes, correctly I think, that the corrupt use of Article II powers is not immune conduct. Mueller notes that the requirement of corrupt intent is a high standard and “requires a concrete showing that a person acted with an intent to obtain an improper advantage for himself or someone else, inconsistent with official duty and the rights of others.” II MR-8.

In the end, Mueller reaffirms the “principle that no person is above the law.” II MR-8. The Report then also concludes that based on the evidence adduced, the SCO could not find that the president committed no obstruction of justice crime. Therefore, although forbidden by policy from stating the prosecutorial conclusion that crimes were committed, the Report “does not exonerate him.” II MR-8.

Despite the clarity of that conclusion, the sitting Attorney General and then Trump himself concluded that the Report did exonerate him. Those statements by the AG and the President were false. The AG also said that he had independently evaluated all the evidence underlying Mueller’s Report and that he, the AG, had concluded that there was no evidence to support a finding of criminal conduct by the president. All that need to said about that is it is extremely unlikely that the AG personally was able to review the entirety of the evidence gathered by Mueller’s team in the time the AG had with the draft report. In making these claims, the AG stepped out of his role as Attorney General of the United States and acted as if he were Trump’s personal attorney defending him against Mueller. Barr’s conclusions should be discounted completely since they conflict with the evidence disclosed in the Report that clearly and strongly demonstrates that Trump did commit obstruction of justice on multiple occasions.

MUELLER REPORT PART I – TRUMP CANOODLING WITH RUSSIA – E

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E. Evidence of Conspiracy Everywhere But No Conspiracy?

It also seems very significant that all evidence regarding Manafort’s communications with Russians could not be seen because it was encrypted and that Manafort lied to the Grand Jury and to the SCO about, among other things, the Campaign data he fed to Kilimnik. I-MR 130. Trump himself had the usual memory failure regarding the changes made to the Republican Platform dealing with the Ukraine. I-MR 130, n. 841.

It follows that Mueller never really got to the bottom of Campaign connections with Russia. The investigation could not resolve, for example, what happened to the polling data that Manafort gave to Kilimnik. I-MR 131. SCO concluded Kilimnik, who was long-term employee of Manafort, was connected to Russian intelligence. I-MR 133. In the end, however, Mueller simply concludes that the investigation found no evidence of a connection between Manafort’s sharing of polling data with Kilimnik or that Manafort otherwise coordinated with Russia regarding the Campaign. Given the holes in the evidence, it is difficult to see how this conclusion is justified. Recall Mueller’s early warning that the absence of evidence is not evidence of the absence.

Note that Manafort worked for Campaign without pay even though he had no meaningful income at the time, allegedly (by Gates) because he expected to monetize his relationship with the Trump administration after the election. I-MR 135.

WHY, however, was the sending of internal polling data about the Campaign not an act of coordination that would have aided the Russians in their campaign to assist Trump by, for example, timing of document releases? Moreover, Manafort offered “private briefings” to billionaire tycoon Oleg Deripaska (but, once questioned, said it was just about “public campaign matters).” I-MR 137. Of course, Manafort would claim that, but what sense does that make? Surely, Deripaska could find out all the “public” campaign information he desired from the Russian intelligence agencies or other Russian sources. WHY did Mueller not explain this? Deripaska now, of course, denies almost everything regarding his interest in American politics and refused to cooperate with Mueller’s investigation. https://nyti.ms/2WJC7Tz

At a dinner August 2, 2016, Manafort briefed Kilimnik on Campaign plans in four battleground states (MI, MN, PA, WI). I-MR 140. WHY is this not an act of coordination, since Manafort knew and expected Kilimnik to report to Russians with an interest in the election? What alternative explanation is there other than some vague notion that providing this information would endear Russians to Manafort, help get his Ukraine consulting bills paid and generally enhance his standing with Russians interested in removing US sanctions? Even if that was Manafort’s only motivation, the fact remains that these acts would have the natural effect of facilitating any Russian actions related to election interference which was found to be based on supporting Trump over Clinton. Manafort likely knew that — he and Gates left the Aug. 2 dinner separate from Kilimnik to avoid media attention to their relationship. I-MR 141

The Report concludes that it found no evidence that Manafort brought Kilimnik’s Ukraine peace plan to the attention of the Trump Campaign or the Trump Administration, yet says Kilimnik continued promoting the plan to the State Dept into the summer of 2018. I-MR 144. Since at that time the State Department was under the control of the Trump Administration, why would Mueller distinguish the State Department from the Administration?

The Report, at I-MR 144, notes that immediately after the election Russians connected with the Russian government began outreaches to the Trump Administration but through business rather than political channels. The implication of this statement seems to be that using business channels somehow distinguishes the outreach from conspiratorial implications. But using business channels makes perfect sense, considering that Trump was not a politician and was, for the most part, not surrounded by politicians in his Campaign organization. Those realities should not affect the interpretation of the purpose of the Russian contacts.

The Report discussion on Russian government outreach begins with Hope Hicks receiving a personal cell phone call at 3 am on election night from what turned out to be Sergey Kuznetzov at the Russian Embassy in DC with a message from Putin to Trump. I-MR 145. HOW did Kuznetzov have Hicks’ personal cell phone number? Mueller never addresses that question.

Shortly before Kuznetzov’s outreach, an unidentified person [redacted for Investigative Technique] wrote to Kirill Dmitriev that “Putin has won.” I-MR 149. This odd message is not further elaborated.

The Report details at length the numerous efforts of various Russian parties to contact the incoming administration and the Trump team’s complete willingness to engage immediately despite the well-established principle that the US has only one president at a time.

Another curious development was that despite Kushner’s initial resistance to meeting with Kislyak, his immediate acceptance of a meeting with Sergey Gorkov, the head of Vnesheconombank, a Russian government-owned bank then under American sanctions stemming from Russia’s invasion of Ukraine, led to Kushner and Gorkov telling two completely different stories about what they discussed. I-MR 163. The Report notes that this conflict was never resolved but Mueller was unconcerned because there was no evidence of further discussions between the two men. However, Kushner’s assistant refused a second meeting request from Gorkov because of publicity about the Russia investigation, allegedly without even telling Kushner about the request. I-MR 163. The inference from all this is that everyone in the Trump team was acting independently, not talking with other members of the team even about extremely sensitive matters such as repeated outreaches to them by Russian operatives. Is this plausible?

Regarding the sanctions on Russia for election interference, Michael Flynn, allegedly acting on his own, proposed to Ambassador Kislyak that Russia not escalate the situation, a proposal that was accepted. I-MR 167. WHY is this not coordination even by Mueller’s limited definition? Perhaps because Trump was already President-Elect, but then why so much Report space devoted to post-election activities by Russians reaching out to Trump administration? If Mueller was really looking for post-election evidence of pre-election coordination, there were many curious situations that needed explanation and didn’t get one.

Mueller appears to believe that actions by Trump staff are not a problem for Trump unless Trump personally asked them to take an inappropriate action. BUT WHY is that so, when almost all actions by any administration are taken by staff and most of the time the President is not personally involved in details of who speaks with whom?

The Report portrays the Russians as a bunch of neophyte amateurs at sleuthing, the Keystone Kops of international conspiring. Is it plausible to believe that Vladimir Putin, a former KGB agent with all the resources of the Russian intelligence apparatus at his instant disposal, did not know how to contact high level people in the incoming Trump administration?

When Egypt proposed a UN resolution calling on Israel to stop settlements in Palestinian territory, the Trump team, not yet in power, worked with foreign governments, including Russia to defeat the resolution, knowing that the Obama Administration would not oppose it. I-MR 168. WHY is this not giving aid and comfort to an enemy of the US? WHY was this not “coordination” under Mueller’s own definition of conspiracy?

Mueller treats this as just routine despite its breach of a long-standing practice/policy/principle that we have one president at a time. Why is working directly with foreign governments to defeat the policies of the sitting administration, without registration or other public disclosure, not tantamount to treason if not actually treason? Trump personally participated in this when he stated publicly that he was opposed to the sanctions imposed by Obama Administration. I-MR 169.

Transition Team members continued to talk among themselves about how to deter Russians from responding adversely to the Obama sanctions. I-MR 170. The Campaign thus was plotting to undermine the Obama foreign policy position on Russia sanctions, with Obama still in office, without any attempt to consult with Obama or his staff about why sanctions were imposed. Trump was personally briefed by KT McFarland, during which Trump disputed that Russians had interfered with the election, a conclusion that the Mueller investigation demolished. I-MR 171. Trump was personally aware that a member of the Transition Team, who else but Flynn, would be talking with Kislyak that very evening. Russians, on direct order of Putin, did not retaliate regarding the sanctions. Flynn told Mueller he did not document his contacts with Kislyak because he knew they were interfering with Obama administration foreign policy. I-MR 172.

Ultimately, Mueller uses ambiguous language to conclude that there were no chargeable crimes involving Campaign people. Although the Campaign was “receptive to the offer,” the “investigation did not establish that the Campaign coordinated or conspired with the Russian government in its election-interference activities.” I-MR 173. No charge, for example, re Internet Research Agency election actions because Mueller had no evidence that Campaign people knew they were interacting with Russians engaged in a criminal conspiracy. I-MR 175. Who, then, did they think they were dealing with? Why are these adults not to be held accountable for their deliberate conduct while turning a blind eye to the reality behind the mask? Mueller never explained his generous treatment of the Campaign and its leader when it came to their refusal to see what was plainly in front of them.

Part of the problem here, it seems, is that Congress has not updated the National Stolen Property Act to include electronic information. See I-MR 176, n. 1278. And, redactions based on extensive Harm to Ongoing Matters in the section addressing indictments indicate that there are major important cases still under active investigation. See I-MR 176-180, 183-184

The Mueller Report explanation of the failure to charge certain criminal offenses is lacking in meaningful detail. The decision was based mainly on the belief that evidence of offenses under campaign finance laws, in particular the Trump Tower meeting re Clinton’s emails, could not establish that participants “willfully” violated the law. I-MR 180. The conclusions that no Foreign Agents Registration Act (FARA) violations could be proved against Papadopoulos and Page, for example, were stated in a summary way without detailed explanation of why their many contacts with Russia nationals during the campaign did not involve, at least, attempts to violate the FARA. See I-MR 183.

Mueller notes Papadopoulos’ lies about when he heard from Mifsud that the Russians had dirt on Clinton and that he understood that Mifsud was connected at high levels in the Russian government. He also lied about when he met Olga Polonskaya, whom he also believed was well connected with Russian government officials at a high level. I-MR 193. The result, however, was that Papadopoulos was charged with making false statements but his activities were not imputed to the campaign. Is it plausible to believe that an ambitious person like Papadopoulos was not reporting his activities to others in the Campaign even if only orally?

Michael Flynn also lied about, among several things, his contacts with Ambassador Kislyak which were made in close contact with KT McFarland, then a “senior Transition Team official.” I-MR 194. Again, despite the close coordination with McFarland, Mueller showed no appetite for attributing any intentionality or responsibility to the Campaign or the Transition Team for the unexplained coverup of Flynn’s contacts with the Russians.

Note, on the other hand, that in the discussion of false statements by various figures in the Trump Campaign and/or Transition Team, there are two major redactions including the name of the individual involved: one based on grand jury testimony (I-MR 194) and the other involving Harm to an Ongoing Matter (I-MR 196-197). This strongly suggests there are additional potential cases of lying to the government still being investigated by some element of the federal government. Mueller should provide some explanation of the further work to be done, given his decision to terminate his office’s work.

Mueller also gives Jeff Sessions the benefit of the doubt even when Sessions, fully aware of the broad inquiry into cooperation with Russia, chose to interpret questions as calling for the narrowest possible construction. Mueller concludes that the evidence did not establish that Sessions was “willfully untruthful.” I-MR 198. If not, then what was it? Unintentional untruthfulness?

Mueller notes that the proof of a willful violation of FARA requires some defendant knowledge of the law. I-MR 185. Mueller seems to believe that none of the lobbyists and other experts that Trump enlisted to help him knew anything about the law governing acting on behalf of a foreign government to influence an election. Even a modicum of common sense would suggest, at a minimum, that lawyers be consulted in such circumstances. Willful ignorance does not excuse a law violation, as anyone can attest who has been ticketed for speeding and claimed not to see, for example, the School Zone signs. The principle of “knew or should have known” should apply here and, if not, there should be an explanation of why it is not applicable.

The gaping holes in the analysis of the facts suggest that some parts of the investigation were very broad but not very deep in key areas. Rather than take an aggressive approach, Mueller seems to have been concerned more about losing a case than about securing prosecution of people who actively worked to subvert a national election by seeking help from a hostile foreign power.

END OF CONSIDERATION OF MUELLER REPORT PART 1

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COMING SOON – PART II: DID THE PRESIDENT COMMIT THE CRIME OF OBSTRUCTION OF JUSTICE?

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.

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Game of Thrones – Realpolitik

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