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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 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.