Tag Archives: Russia

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

E. Mueller’s Inexplicably Generous Treatment of Trump’s Knowledge of Events

Another of the remarkable and unexplained conclusions reached by Mueller was that the evidence of Trump’s knowledge about Flynn’s lies about Kislyak was inconclusive. II MR-46. This conclusion seems flatly inconsistent with Trump’s statement to Christie that firing Flynn ended the Russia collusion issue.  II MR-38. We are asked to believe that Flynn told McFarland that his contacts with Kislyak had averted a major policy conflict with Russia but she did not pass that on to Trump! And that neither she nor Bannon could remember this major development! This is yet another example of Mueller’s lack of aggressive approach to Trump. WHY didn’t the SCO interview Trump to get at answers to these critical questions instead of saying they had enough evidence and it was late in the investigation? It is also unclear why it mattered so much whether Trump knew about Flynn’s deception close to the time the Kislyak talks occurred.

Even more puzzling is Mueller’s conclusion that Trump’s effort to get K.T. McFarland to write an internal email saying that Trump did not direct Flynn to talk to Kislyak was not an attempt to have McFarland lie. II MR-48. What then was Trump trying to get McFarland to do?  What is the alternative explanation for Trump’s request of her? This is another example where evidence of corrupt intent is simply written off as “insufficient” without explanation. IF SCO had interviewed Trump, questions like this could have been resolved instead of being left open and then construed as exonerating Trump.

A similar problem arises regarding Trump’s campaign to have Attorney General Jeff Sessions un-recuse himself regarding the Russia investigation. In a footnote Mueller says it was unclear that Trump was aware of White House counsel’s admonition not to contact Sessions. II MR-50, n. 289. Why isn’t Trump chargeable with constructive knowledge of WH counsel’s directive? Trump declined to read documents — does that relieve him of responsibility for knowing what was official White House policy that had been put in writing?  Moreover, if the SCO had interviewed Trump, it could have gotten answers to these questions left open and ultimately construed in Trump’s favor on grounds that the evidence did not show he knew something that, on a common sense view, he almost certainly did know.

Mueller’s generous treatment of Trump continued in the discussion of Comey’s briefing of the Gang of Eight legislators in March, 2017, about the Russia investigation. Mueller said it’s “unclear” whether Trump knew about the briefing at the time, but notes taken by McGahn’s chief of staff say that “POTUS in panic/chaos.” II MR-52. How/why would Trump be in a panic if he didn’t know about Comey’s briefing of Congressional leaders? How could the president be ignorant of such developments that might have such huge impacts on his presidency and to which he had devoted so much attention in the past few months?

 The Comey briefing led to one of the clearest cases of obstruction of justice, in that Trump demanded, and McGahn complied, that McGahn contact Dana Boente, then acting assistant attorney general at Justice, to publicly correct the “misperception” that Trump was under investigation. II MR-54,55. Once again, Trump insiders had failed memories of demands Trump made for intervention with the Department of Justice. II MR-5. And, there is no attempt to explain inconsistencies in other testimony from some of the same insiders, claiming Trump never ordered them to do anything wrong. These statements from NSA Director Rogers are inconsistent with the contemporaneous memo of the President’s call and of NSA Deputy Director Ledgett’s characterization of the extraordinary nature of the call. II MR-56. Why is there no consideration of these inconsistencies?

When Trump then reached out directly to Comey to ask him to relieve the impression Trump was under investigation, the Report, unbelievably, turns to McGahn’s asserted recall of what Dana Boente told him Comey had told Boente about Trump’s contacts with him. II MR-59.  As usual, Boente claimed not to recall this discussion. II MR-60.

Then, in one of the most remarkable moments in the Report, Mueller drops into a footnote (II MR-59, n. 376) the reminder that White House counsel had advised Trump not to contact DOJ about the investigation. Mueller seemingly attached no significance to the extraordinary & undisputed fact that Trump on multiple occasions ignored the advice of his White House attorneys by reaching out directly to Comey to discuss relieving the pressure of the Russia investigation. WHY? This was not the conduct of an innocent man.

Mueller seemed to be impressed with the fact that the people involved claimed that they did not interpret Trump’s repeated importunings as “directives” to interfere in the investigation. II MR-60. These people were all Trump appointees and true believers in his politics, who would naturally seek to maintain favor with him by declining to interpret his repeated requests as “directives.” In any case, the real question is not what they thought, but what Trump intended and the only way to get to the bottom of that ultimately was to interrogate him, which SCO, curiously, declined to demand. Trump’s attempts to secure a champion at DOJ included personal contacts with Coates, Pompeo, Rogers and Comey. Despite that, Mueller, with his usual reticence to accept the obvious, concludes that “the evidence does not establish that the President asked or directed intelligence agency leaders to stop or interfere with the FBI’s Russia investigation.” II MR-60.

The same question arises in connection with Trump’s multiple attempts to prevent AG Sessions from recusing himself from oversight of the Russia investigation. A couple of things are clear. Trump thought the AG worked for him personally and therefore that Sessions should remain in place to do Trump’s bidding regarding the investigation. And, White House counsel tried to cut off communications with Sessions about recusal to avoid the appearance of attempted interference with the investigation. Yet, once again, Mueller states it was “not clear” that the “no contact” directive was conveyed to Trump. II MR-61. HOW is it remotely plausible that White House counsel, in a matter of seminal importance, would not have conveyed this information to the one person whose knowledge of it and compliance was the most important? Why didn’t the SCO demand Trump answer this question? He refused to do so even in writing and the SCO let him get away with it!

Mueller repeatedly and uncritically refers to Trump’s asserted belief that the Russia investigation was somehow interfering with, Miller his ability to conduct foreign policy but never discussed how that interference worked or what real impact it had on a president who, by all accounts, spent most of his time watching television and playing golf. II MR-61.

Another point of clarity in the Report is the finding that Trump lied about the basis for firing Comey. II MR-62. Why would he do that except to cover up his corrupt motive to which he shortly confessed? Trump’s lies about his conduct, in the context of his other actions, were a clear case of cover-up that could have been treated as a separate offense by Mueller if he had the aggressive instincts of a prosecutor rather than the timidity of an equivocator.

A related question – why was Stephen Miller not indicted for his role in preparing a phony letter to cover Trump’s tracks regarding the firing of Comey? II MR-64. Another related question: the final stated reason for firing Comey was pretextual. All Trump cared about was establishing that he was not under FBI investigation and that he was firing Comey because Comey refused to say that publicly. The Rosenstein/Sessions memo was constructed as an alternate explanation that Trump then adopted while still insisting, against advice, that the point about his not being under investigation be prominently included in the firing letter. II MR-67. Yet, again, no indictments were brought against any of the president’s men for conspiring and lying to cover the tracks of a discharge action plainly intended to obstruct the FBI investigation. See, e.g., II MR-70 regarding lies told by Sean Spicer, then Press Secretary about the motivation for the Comey firing.

Mueller basically gave a pass to all Trump’s enablers who accepted and acted on his directions. Michael Cohen, in later testimony before Congress, spoke specifically about how Trump rarely gave specific directions for anything. He spoke in “code,” that Cohen claimed he understood. It is beyond credibility that, by the time of Comey’s firing, the president’s men did not also understand how he “directed” what he wanted done, what he insisted upon, without ever explicitly saying so. Mueller appears to have completely overlooked this aspect of Trump’s directorial style, crediting him with innocence because there was no overt statement by him that amounted to a confession. In the future, then, Trump’s enablers have no reason to fear repercussions when they willingly follow his non-order orders.

Further evidence of Mueller’s timidity may be found in his ultimate conclusion that “the anticipated effect of removing the FBI director … would not necessarily be to prevent or impede the FBI from continuing its investigation.” II MR-74. That astonishing statement shows Mueller going out of his way to avoid the overt implications of evidence regarding Trump’s actions that were, by Trump’s own admission, intended to interfere with the Russia investigation. Why else would he have fired Comey and handled the firing as he did, including conspiring to give the impression that Rosenstein/Sessions were responsible for the firing? A seasoned prosecutor like Mueller surely knew better, but falls all over himself in avoiding the plain implications of Trump’s conduct. Moreover, even if the investigation would have been unfazed by Comey’s firing (and thus completely ignored by the surviving DOJ attorneys), the clear intent of the discharge was proven and, as Mueller’s own statement of the governing legal tests showed, an attempt to obstruct does not have to be successful to violate the criminal law.

Curiously, the Report takes a somewhat different approach to assessing evidence of Trump’s intentions when it addresses Trump’s attempts to have the Special Counsel removed. II MR-84 thru MR-90. This may be the result of superior clarity of the evidence but this is not apparent from the Report language. One explanation may be that the “committee” of lawyers that drafted the Report were assigned different sections and that each one had a different approach. The analysis highlights the fact that Trump lied publicly about whether he had tried to have Mueller removed, an approach Trump had taken to other issues but which led to Mueller equivocating about the strength of the evidence. II MR-90.

It is a fair question as to why Mueller did not indict Cory Lewandowski whom Trump chose as the go-between to direct AG Jeff Sessions to publicly speak about the unfairness of the SCO investigation and to limit its authority to future elections only. The recited evidence clearly shows that both Chief of Staff Kelly and Lewandowski himself were well aware of the impropriety of Trump’s demands and took actions to conceal his conduct from exposure. II MR 91-93 & n. 604.

Regarding the infamous Trump Tower meeting, the evidence is clear that Trump took overt actions to cover up the situation. II MR-98 to MR-107. Yes, Mueller concludes that Trump’s actions were merely part of a press strategy and not an effort to affect the SCO investigation or the related work of Congressional investigations. This is an astonishing judgment when the SCO allowed Trump to avoid testifying and be examined about this subject. It is therefore impossible to conclude that these obstructive acts did not occur. Moreover, Trump clearly acted dishonestly regarding disclosure of the information and created a misleading paper trail that could have affected decisions at SCO about what to do regarding the Trump Tower meeting. Mueller resolved all doubts in favor of Trump even in face of evidence of his lies and duplicity regarding the issue at hand.

Other instances of Mueller’s resolving doubts in favor of Trump or his people involved Trump’s effort, using his personal counsel, to have McGahn publish a statement denying that Trump had asked him to fire Mueller. Mueller resigns to a footnote and fails to explain the conflict between Hope Hicks & Gen. Kelly regarding whether the McGahn resistance story was correct. II MR-114, n. 788. Kelly, Sarah Sanders and Rob Porter all experienced memory failure regarding aspects of Trump’s demands and denials about trying to get McGahn to fire Mueller. Trump, of course, remorselessly lied to his own staff about what he had said. II MR-115. He continued to press McGahn to “correct” stories that ” McGahn repeatedly told Trump, and others, was accurate as written. II MR 116-117. Mueller resorts to the gentlest possible language when describing these activities, using phrases such as “runs counter to the evidence” as opposed to the more precise “he lied.” II MR-118.

Rob Porter played a direct role in delivering Trump’s demands to McGahn (II MR-116) but, without explanation, was not indicted for conspiracy to obstruct justice.

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

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).

  1. 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.
  2. 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.
  3. 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.
  4. 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
  5. 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:

  1. If the SCO knew at the outset that it would not issue indictments, why was this not disclosed at the beginning?
  2. 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?
  3. How was the investigative approach altered to assure that a “judgment that the President committed crimes” was not the result?
  4. 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.
  5. 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 – A

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

Semi-Final Thoughts on Mueller Report

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

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

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

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

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

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

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

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

Force Trump to Plead the 5th Amendment

Shortly after Brett Kavanaugh, with full support from the Republicans on the Senate Judiciary Committee, stonewalled on all the important questions put to him, and may have lied about others, the news arrived that Trump’s attorneys have advised that Trump will not respond to questions from Special Prosecutor Robert Mueller in any manner, oral or in writing. This latest zigzag in Trump’s position regarding the Russia investigation may be a direct result of Kavanaugh signaling that nothing Trump does could lead Kavanaugh, as a Supreme Court Justice, to decide in favor of presidential accountability while in office.

Given that the Republicans have once again prevented the Senate from fulfilling its constitutional mission of advising and consenting to a presidential appointment to the highest court, it seems to me it is time to call the question on the bigger questions related to presidential accountability. It is time, I suggest, that Mueller should stop fooling around with Giuliani and camp and subpoena Trump to testify under oath about the Russia collusion issues before a grand jury. This would, of course, expose Trump to huge risks that he would perjure himself, further establishing the existence of “high crimes and misdemeanors,” the Constitutional threshold for impeachment. For that reason, among others, Trump would undoubtedly refuse to comply with the subpoena and the issue would then be put to the courts.

If, as is almost certain, Brett Kavanaugh is confirmed and the issue reaches the high court, which it will, Kavanaugh will be faced with the non-hypothetical question whether he will recuse himself from a decision regarding the power of the presidency to stand above the laws that apply to every other person in the country. Having just vanquished a king to gain the freedom of a new country through the Declaration of Independence and the Constitution, it is quite unimaginable that the Founding Fathers intended such immunity. Nevertheless, the issue has not been decided by the Supreme Court. It is also hard to imagine a better case to present the issue than one in which the nation’s chief executive declares that he is not accountable to even testify about his possible corrupt obstruction of justice and interference in the election that placed him in office. This is likely the best case that will ever exist for getting a ruling that the president is not above the law.

Of course, the president would have the ability to avail himself of the protection against self-incrimination afforded other citizens under the 5th Amendment. To avoid incriminating himself,

Trump would almost certainly be advised by his attorneys to plead the 5th Amendment in response to all questions put to him by Mueller’s investigators.

Imagine for a moment that Trump is asked direct questions about his knowledge of contacts with Russians, cooperation with Russians and more regarding the suborning of the election that we know to have occurred in 2016. He has four choices.

One, tell the truth. That’s probably not a good choice for him since the publicly available information strongly suggests his active complicity in the Russian election activities. We don’t know what Mueller knows but neither does Trump. In any case, truth-speaking is not his style, especially when it will make him look bad, so telling the truth is likely off the table.

Option Two, lie. This is the course he would be most tempted to take since he, and this is thoroughly and incontestably documented, lies multiple times a day about all manner of things, great and small. Telling lies about his conduct in this situation would expose him to a perjury charge, however, not a place he would want to be. Recall that he does not know what Mueller knows and can prove. Trump’s attorneys would be, indeed have said they are, so concerned about Trump’s propensity to fabricate that they would likely insist that he take Option Three.

Option Three, plead the 5th Amendment. Refuse to answer “on the grounds that answering may incriminate me.” Under American law, pleading the 5th does not constitute an admission of guilt and pleading may not by itself be the basis for a finding of guilt. In the minds of many members of the public, however, a president pleading the 5th Amendment on matters of this seriousness would be tantamount to a confession.

Option Four, refuse to appear for questioning. This might be seen as the “nuclear option,” whereby the president says, in effect, “I refuse to be held accountable and will not cooperate in the process that is trying to destroy me.” This question, I believe, was decided by the Supreme Court in United States v. Nixon, 418 U.S. 683 (1974), a unanimous decision by the eight Justices participating (Justice Rehnquist did not participate). The opinion upheld a subpoena directing the president to produce to a grand jury certain tape recordings and documents relating to his conversations with aides and advisers. The grand jury’s prior indictment of seven people had named the president as an “unindicted coconspirator” in defrauding the United States and obstructing justice.

Trump’s attorneys would certainly argue that the Nixon decision was “distinguishable” from the Trump case. That is one of an attorney’s jobs and there is no doubt Trump’s lawyers would present the question to the courts, which would then make the final decision regarding the scope of the president’s immunity from the legal processes that apply to everyone else. To simply refuse to cooperate would, I think, not only create a “constitutional crisis,” but it would go a long way to weakening Trump’s political support in Congress.

I do not suggest, of course, that all Trumpers would turn on him in these circumstances. For reasons not fully understood, there apparently are millions of people who are so entranced by the Trump persona that nothing he does or says, or fails to do or say, will change their view of him. But they are already a minority of the voting population and, I suggest, the president taking the 5th Amendment on questions related to subverting the American electoral process or, worse, simply refusing to cooperate, would move many voters across the line. Unmoved though they may be by the reality that Trump supports policies directly injurious to their economic, social and physical well-being, many of those at the margin of acceptance would finally say “enough.” We don’t need them all to achieve a massive reversal in the polity in favor of reason and the rule of law. If, on the other hand, I am wrong about this, we are probably no worse off than before but we will have a better understanding of where the law stands on these issues and can take whatever actions are then necessary and appropriate.

Therefore, I submit, it is time to call the question on Trump. Time to force him to choose between telling the truth, lying, pleading the 5th Amendment or simply declaring “I am above the law.”

Treason – Why Do They Do It?

The events of the past few days do not need recounting. By now, anyone who is awake is aware that the President of the United States adhered to and gave aid and comfort to an enemy of the United States. I define “enemy” here as a country that interferes in the internal politics of our democracy to prejudice the outcome of an election. My view is that because the Constitution sets out three separate forms of treason, only one of which involves “war” as such, it is possible to commit treason with a country as to which the United States is not technically “at war.” And I believe Trump clearly did that in Helsinki. No amount of later backpedaling and doubletalk can cancel what he did, especially recognizing that he insisted on a no-witnesses meeting with Putin that lasted for several hours.

The Constitutional definition of “treason” is stated as follows in Article III, Paragraph 3:

“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open court.”

I am aware that there is a lot of debate among legal scholars and historians about the exact meaning of Article III’s definitions and I don’t propose to recount or resolve them here. Instead, I am interested in the underlying question: why does anyone commit treason? In simpler terms, what would motivate an officer of the United States, and in particular the highest officer, to side with a foreign country engaged in hostile acts against his country when such alignment is resisted by most or all of his most senior and experienced advisors?

That question has now risen in importance as a result of the travesty of Donald Trump bowing and scraping before Vladimir Putin at the Finland joint press conference. Even members of Trump’s own party are asking the question because they conceive of no explanation that makes sense. His later “I meant ‘wouldn’t’ instead of ‘would’” warrants no more comment or analysis than just “look at the video and you will see he meant what he said: ‘would.’

The possible reasons for committing what I, and many knowledgeable commenters, believe was an act of treason include at least the following:

  • Ideological alignment on issues of overriding importance to the actor
  • Mental illness such as to fundamentally impair his ability to make decisions
  • Stupidity
  • Money/Avarice
  • Power
  • Blackmail

There may be some I haven’t thought of but for now this is the list. Let’s consider them one by one.

Ideological alignment on issues of overriding importance to the actor: I dismiss this one out of hand because Trump appears not to have a consistent ideology of any kind. He adopted the mantle of Conservative Republican when it suited his political ambitions but historically he has been all over the place on matters of ideology. There is no reason I have seen (confessing I might have missed it) that he would be attracted to communism or socialism. Ultra-right fascism is definitely a possibility, given his pre- and post-election tendency to morally equate the actions of white supremacist/Nazi/alt-Right extremists with those of the progressive Left. He clearly is attracted to authoritarian leaders – aside from Putin, Duterte of the Philippines comes to mind. Trump’s business history is that of a bully who pushes around and cheats people who are not in a position to fight back on an equal footing. 

Mental Illness:  Many experts and non-experts alike have addressed the question whether Trump has a “mental illness,” a “personality disorder,” or dementia of some kind. I don’t know the answer, of course, but am reluctant to argue that the fact of Trump’s seeing everything differently than I do is evidence of any of those things. Certainly, his behavior evinces a monstrously large ego, massive insecurity and need for approval and similar considerations, but whether those obvious characteristics would lead a person to commit treason seems weak. The same for his propensity to bully everyone to show that he is the bigger man, the most important person in the room/world.

Stupidity: To be clear, I believe Trump acts like an ignorant fool most all the time. He knows little or no history, reads little or nothing, declines to be briefed and appears to believe his massive intelligence overshadows all experts in all fields so that no one has anything useful to tell him. Still, can we conclude that he is just plain dumb? On the surface, at least, he is (was) an educated person. And he has had the resources to continue to be educated, though he seems to have affirmatively avoided taking in new information for decades. Trump is willfully uninformed about the important elements of his job, but does that mean his is too stupid, too ignorant to understand that aligning with a historical enemy of his country, run by a dictator (spare me the baloney about how Putin was “elected” in a democratic process in Russia)?

Money/Avarice:  Considering Trump’s refusal to release his tax returns, the mounting evidence of secret business deals with Russians, his numerous lies about whether or not he has business relationships in Russia, and his and his family’s continuing to profit from incomes fed to his business empire by foreign interests, a plausible argument can be made that Trump would sell out his country simply to secure his business interests. It is possible that much of his past business activities have been funded by Russian interests. On the other hand, Trump is a very rich man and getting richer every day, often at the expense of the American taxpayer. So, would he commit treason for still more money? Possibly, because, for people like Trump, there is never enough money. The more they get, the more they want more. Always more.

Power: The president of the United States is reputedly the most powerful person in the world. What additional power would he expect to get by supporting a hostile foreign power against his own country? His party controls both houses of Congress already. He knows that cozying up to Vladimir Putin is worrisome or worse to even many Republican members of Congress who are otherwise slavering all over him to prove their loyalty (that he appears to value above all else, including competence). Yet, to borrow a contemporary meme, he persists. The power explanation rings true somewhat, especially when combined with the Money/Avarice option. It may be that my list oversimplifies a multi-element explanation. The answer may be a combination of personality disorder/willful ignorance/grasping for more personal and family wealth and power. Could be. But there is at least one other choice.

Blackmail: Since the disclosure of the Steele dossier (see https://bit.ly/2nFuZn4), rumors and stories have continued to surface about Trump being a Russian asset or at least subject to blackmail related either to personal misconduct in Russia or corrupt business dealings there. These views have gained new momentum in the wake of Trump’s bending the knee to Putin in Helsinki. There is no known way at the moment to verify this, although one hopes that the Mueller investigation is looking very deeply into the web of Trump-Russia connections and Trump’s inexplicable fondness for a historically hostile power. The extraordinary detail in the indictment of the 12 Russian hackers is an indication of the sophistication and thoroughness of U.S. counterintelligence expertise when aggressively applied in the hunt for traitors and their enablers.

Bottom Line: Spoiler alert: anticlimax coming.

I suspect that the awful reality is that, as suggested above, the explanation for Trump’s conduct toward Russia and Putin has multiple sources. Treason, especially by a president, is so serious that we must not yield to the temptation to believe in the simplest “explanation,” an “obvious” single cause.

Avoiding impatience is also important. Having conducted a corruption investigation early in my career, involving confidential “inside” sources, a conspiracy among multiple parties, some with “stellar reputations,” and serious efforts by numerous parties to hide the truth, I can attest to the importance of letting the painstaking, often tedious, investigative work proceed to whatever conclusion it will reach. The demands of Trump’s Republican enablers in Congress and elsewhere to “end the investigation” because it “has produced no evidence of collusion” are simply partisan and delusional wishful thinking. They have no idea what information is building inside the Mueller investigation and will not know, as we will not, until Mueller decides to conclude his work and report his findings.

Mueller’s Indictment of Russia Hackers — Updated

In the original post, I reported that paragraph 43(a) of the Mueller Russian hacking indictment stated that a “candidate for the U.S. Congress” asked for, and received, stolen emails from the Russia hackers posing as Gucifer 2.0. The information related to the candidate’s opponent.

There is related news. The Palmer Report has stated that the Congressman in question is likely to be Rep. Matt Gaetz (R-FL). https://bit.ly/2NPvWVX The basis for the report is that Rod Rosenstein had advised Trump in advance that the Mueller Russian hacking indictments were imminent and had identified to Trump the Congressman referred to in paragraph 43(a). Apparently concerned about the fate of the Congressman, given his involvement in using the stolen materials from the Russia hack, Trump issued a tweet out of the blue while on his overseas trip:

“Congressman Matt Gaetz of Florida is one of the finest and most talented people in Congress. Strong on Crime, the Border, Illegal Immigration, the 2nd Amendment, our great Military & Vets, Matt worked tirelessly on helping to get our Massive Tax Cuts. He has my Full Endorsement!”

Why Gaetz? Palmer Report suggests it’s because Gaetz is close to Roger Stone who has admitted that he, Stone, is the unnamed Trump associate mentioned in the indictment. Prior to the disclosure of the indictments, Gaetz was all over the news for months, complaining that the Mueller investigation was biased. No wonder Trump likes him.

Back on June 14 Politico reported that Rep. Matt Gaetz (R-FL) was among the chorus of Republicans wetting themselves (I said that, not Politico) over the Justice Department’s inspector general report about FBI agent Strozk, saying:

“It is smoking-gun evidence that the Mueller probe is built on a rotten foundation,” said Rep. Matt Gaetz (R-Fla.), a freshman lawmaker on the House Judiciary Committee who has also earned Trump’s praise for his criticism of the Russia inquiry.”

https://politi.co/2uwkohy

Curiously, though, I can find no indication that Gaetz has had anything to say since the indictments were released and Trump effectively outed him. There is nothing on his official congressional website.

There is some element of speculation in all this but it is mighty curious that Trump would suddenly rush to Gaetz’s defense when no one else but Mueller/Rosenstein knew Gaetz was the Congressman mentioned in the indictment.

So, the plot thickens. And the Republican enablers of Trump’s treasonous conduct continue to berate the investigators.  None of those Republicans can answer the question: if Trump is guilty, what difference does it make that some of the investigators that collected the evidence were opposed to his presidency? Their logic is that it is only important that he’s guilty if he’s exposed by evidence collected by people who have no opinion on whether he is, or even might be, guilty. The thing is that people with no functioning minds are not very good at collecting evidence.