What is called for now is political judgment. Are we prepared as a society to define Trump’s conduct as unacceptable for a president? Are we prepared to accept the consequences and risks of doing so? And critically, are we prepared to accept the consequences and risks of not doing so?
Dear Friends,
In order to help Americans understand the stakes involved in the debate that is shaping up in Congress and around the country about how best to respond to the Mueller Report findings, legal scholar and author Benjamin Wittes, co-founder of Lawfare, and senior fellow at the Brookings Institution, has produced a tour de force — https://www.lawfareblog.com/notes-mueller-report-reading-diary — that commands your attention and rewards your investment of time in this endeavor.
[Reader Alert: This isn’t a Cliffs Notes version, this is a serious investigation of a serious investigation.]
Wittes and his colleagues and contributors at Lawfare have been at the forefront of every aspect of L’Affaire Russe from its earliest days producing analyses that have been both prescient and proven. What Wittes offers in this ‘reading diary,’ is a careful, thoughtful, insightful, and learned perspective on what Mueller does and does not conclude. He draws important distinctions between actions that may or may not be criminal versus those that might qualify as impeachable . . . remembering Congressman Gerald Ford’s 1970 observation: "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”
Among the most interesting take-aways for this reader from Wittes’ diary are these items, prefaced by TMR’s own assertions:
• Barr misread, misspoke, and mislead:
Citing New York Times’ reporter Charlie Savage, Wittes notes "the rather numerous times [Attorney General William] Barr selectively and distortively quoted Mueller to convey something friendlier to the president than the actual report conveys."
Adding to that, Wittes writes, "Barely a paragraph later, Mueller clarifies something else that should embarrass Barr . . . Barr repeatedly described the special counsel’s office as having found no evidence of Trump campaign “collusion” with Russia."
In fact, here’s what Special Counsel Mueller’s report said about collusion: 'collusion is not a specific offense or theory of liability found in the United States Code, nor is it a term of art in federal criminal law. For those reasons, the Office’s focus in analyzing questions of joint criminal liability was on conspiracy as defined in federal law.
Ergo, says Wittes, "Barr is being misleading both as to what Mueller examined and as to what Mueller does and does not mean when he says he did not establish or find something."
• Mueller stayed in his lane, stuck to his guns, and played it straight.
Unlike prior Special Counsels, Wittes notes that Mueller understood "his jurisdiction was narrow . . . defined by a series of orders and clarifications from [Deputy AG] Rod Rosenstein,’ and thus investigated criminal matters only, referring all other elements, including counterintelligence material, to other Justice Department components. Mueller’s report lists '10 transfers of cases begun by the special counsel’s office and an additional 14 “referrals“ that demonstrated 'evidence of potential criminal activity that was outside the scope of the Special Counsel’s jurisdiction.”
Of this, Wittes writes tellingly: "Call them children of the Mueller investigation—and keep a close eye on them.”
• Trump tried but bumbled.
On questions about the relationship between Russian hacking and the Trump campaign . . .”There are reasons none of these incidents amount to crimes . . . but the picture it all paints of the president’s conduct is anything but exonerating — This was not “no collusion.” It was Keystone Kollusion—and the incompetence of it is likely the reason no crime was committed.”
"It wasn’t that Trump was above dealing with Russian hackers to get Hillary Clinton’s emails. He not only called publicly on the Russians to deliver the goods on his opponent, but he also privately ordered his campaign to seek the material out. He did this knowing himself—clear from his public statements and very clear from the actions of those who acted on his request—that Russia would or might be the source.
"It is not illegal to imagine stolen emails and try to retrieve them from imagined hackers. But it’s morally little different from being spoon-fed information by Russian intelligence. The Trump campaign was seeking exactly the spoon-feeding it was accused of taking; it just couldn’t manage to find the right spoon, and it kept missing when it tried to put any spoons in its mouth.
• If it doesn’t fit, vote to acquit.
If you thought O. J. was innocent of the crimes charged, you may have a sense of dejá vu here. Here’s what Wittes reports in the section on Russian Government Links to and Contacts with the Trump Campaign:
"Trump was willing to do business with and seek favors from the Russian state even as it was attacking the country for whose presidency he was running—and he was willing to lie about doing so"
"His campaign’s senior leadership was eager to benefit from that country’s efforts to dish dirt on his opponent and was willing to meet with people it knew to represent that country in order to receive such information"
"Multiple campaign staff and advisers engaged in conduct in relation to that country that legitimately gave rise to counterintelligence scrutiny"
"Multiple campaign staff and advisers lied to investigators about their dealings with Russian officials or intermediaries to such officials in a fashion that gave rise to criminal charges or other actions."
"I don’t know the right word for this pattern of conduct. It’s not “collusion,” though it may involve some measure of collusion. It’s not “coordination” or “conspiracy.” But in Clinton, Democrats, and liberals, the Trump campaign saw a sufficiently irreconcilable enemy that it looked at Vladimir Putin and saw a partner. To my mind, anyway, that’s the story Mueller told in this section . It may not be a crime, but it is a very deep betrayal."
Eine Kleine Instruction on Obstruction
We move now to Volume II of the Mueller Report (on obstruction) on which things get dicier for Donald Trump, either in the here-and-now or after he has departed the White House by whatever means that occurs. Again, here’s Wittes:
"The two-page introduction to Volume II of the Mueller report is perhaps the part of the entire document that packs the most important material into the smallest space. It is here that Mueller explains why he, as he puts it, 'determined not to make a traditional prosecutorial judgment' on the question of whether Trump obstructed justice in his interactions over law enforcement investigation of L’Affaire Russe. The reason is complicated and multilayered. It ultimately, I think, leads to the conclusion that Mueller likely believes the president did, in fact, obstruct justice. At a minimum, it certainly argues that the evidence is at least strong enough on this point that the matters should be decided by prosecutors after Trump leaves office."
Mueller’s team examined multiple specific allegations regarding obstruction, each of which Wittes summarizes in a compelling compilation of material. Once again Attorney General Barr — and DAG Rod Rosenstein — emerge as tainted interlocutors on what Mueller concluded:
"Leaving aside Barr’s grossly misleading characterizations of the document, the relevant point is that Mueller makes two things clear within the first substantive paragraph of the section: that OLC’s [Office of Legal Counsel] opinion [that sitting presidents cannot be indicted] is central to his decision not to resolve obstruction matters, and that informing his judgment as well is a cognizance that the impeachment process, which Mueller references explicitly in a footnote, is the accepted mechanism for evaluating presidential lawlessness.
And despite Donald Trump’s repeated assertions of ’total exoneration,’ repeated ad nauseam by his own lawyers and various Mar-a-Lagoans, and recently referred to in son-in-law Jared Kushner’s risible comments at the Time 100 gala, it is best to take Wittes’ comments on Mueller’s conclusions:
"But then Mueller gives the game away, writing in his fourth point that 'if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state . . . Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.'”
Well, there’s more — more from Wittes and much, much more from Mueller. We are indebted to them both, and to their colleagues, of course. They represent the highest models of citizenship and scholarship. Their commitment to the rule of law and their unquestioned integrity stand in stark contrast to the man who occupies the Oval Office and to those who continue to support him in his egregious assault on ’the soul of America.’
RGM
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