james debate
james debate

Monday 1 April 2019

Well it finally happened. The Office of the Special Counsel Robert S Mueller III has completed his investigation into alleged connections between the Russian government and the Presidential campaign of then candidate Donald Trump. To call this a seismic event would be an understatement. This is easily the most significant Federal investigation into a President's conduct since Watergate, and concerns charges that if proven would be unlike anything seen before in American politics.

Sadly, as with pretty much everything else that has happened under this administration, this story has been spun, obfuscated, and just generally muddied up to the point where practically no one can tell what is actually going on, least of all those in the media upon whom falls the responsibility of informing the public. So for those of you who are rightly confused at this time I have compiled the following analysis, which hopefully will provide an easy to understand summary of what has happened, what it means going forward, and with a little of my own perspective as a lawyer thrown in for good measure.

trump russia mueller report investigation criminal indictment obstruction barr collusion putin rosenstein

The Mueller Investigation
Before we dive into the findings of the investigation, I think it's important to provide a quick summary.

The Special Counsel investigation was initiated in May 2017 by Rod Rosenstein, the Trump-appointed Deputy Attorney General, following the firing of FBI Director James Comey. Comey accused Trump of firing him after he had refused to stop an FBI investigation into Trump's national security advisor Michael Flynn, a claim which was inadvertently lent extra credence by Trump himself, who stated on national TV that he had fired Comey to end "the Russia thing".

Rod Rosenstein appointed Robert Mueller to find the answer to two questions: 1) whether there is credible evidence that the Trump campaign knowingly aided or co-ordinated with the Russian Government to influence the 2016 election, and 2) whether Donald Trump's conduct in office might constitute obstruction of justice.

The President has called the investigation a "witch hunt", but over the course of two years Robert Mueller's "witch hunt" has found an awful lot of witches, indicting some 40 people, with a total of 200 criminal charges. This includes almost a dozen members of Donald Trump's inner circle, including his Campaign Chairman, his personal attorney, his chief national security advisor, amongst several others. This makes it the second largest Special Counsel investigation in history in terms of indictments, behind only Watergate. This is in spite of it being among the shortest such investigations. A lot of criminals have been put behind bars by this investigation. It has been an unmitigated success in this regard.

In addition, Mueller's investigation has led to the spin off of as many as seventeen investigations being carried out by different departments. Mueller's initial investigatory phase may be complete, but these investigations continue.

Key findings and conclusions
Summarising the key findings of this much anticipated investigation is difficult because, well, we don't really know what the investigation found. Despite the investigation being complete, and the full 400 page report being delivered to the Attorney General, no one outside of his office has seen a single word.

Instead, all we have to go on is a description put out by the Trump administration itself. That alone should set off alarm bells. After all, in what other situation would the subject of an investigation be permitted to write up the conclusions of that investigation? Donald Trump's new Attorney General Bill Barr, who replaced Jeff Sessions ostensibly just so he could take control of this investigation, has provided a four page summary to Congress. In Barr's own words, the report "does not exonerate" the President.

The Barr Summary states that the Mueller Investigation concluded that the Russian Government did indeed interfere in our election in order to elect Donald Trump, but that Mueller was not able to "establish" that members of the Trump campaign actually co-ordinated with the Russians in support of this interference. The summary states that Mueller found numerous instances in which the Russians had attempted to work with the Trump campaign, but that it does not establish that the campaign ultimately did so, at least not in a way that meets the threshold of criminality.

On the second charge, Mueller's findings were far more alarming. The Barr Summary states that Mueller concluded that the President's conduct may have amounted to criminal obstruction of justice. The Special Counsel laid out the evidence for and against this charge, and then declined to draw a final conclusion, deferring the matter for further consideration. The Trump Administration then took it upon itself to decline further consideration, and conclude a lack of criminality. If the previous thing set off alarm bells, this one should have steam shooting out of your ears.

And now for a few of my own impressions and outstanding questions on this developing story:

1. No collusion? No conclusion
First of all let's be clear what we are talking about when it comes to "collusion". Collusion is not a criminal charge, and in the context of Donald Trump that word has been used to describe all manner of activity with the Russian Government. In the context of the Mueller investigation, that word has a much narrower meaning.

Robert Mueller, it has now been revealed by the Barr Summary, was looking very specifically into whether members of the Trump campaign co-ordinated with the Russian Government to illegally interfere in the 2016 election. Thus it is clearly erroneous to try and draw any conclusion over the broader question on Trump-Russian relations based on what Mueller has found. That being said, we know that Mueller has referred many cases to other investigators, and it is entirely possible that these may include other forms of collusion.

We also don't know precisely what the Mueller investigation found with respect to this very specific form of collusion. The Barr Summary states that the investigation "did not establish" that members of the Trump campaign worked with the Russians to interfere in the 2016 election, but it's not clear whether this is Mueller's conclusion, or just Barr's interpretation of his findings. Based on how the obstruction question was handled (ie Mueller just laid out the evidence and Barr made a judgement) one can reasonably assume that these may be Barr's own words, in which case the question is still very much open.

Even if we give Barr the benefit of the doubt and assume his conclusions accurately correspond to Mueller's own conclusions, as a lawyer I find his choice of words interesting. It is significant that Barr did not say "found no evidence of" but rather "did not establish that". This is very specific and careful language which clearly implies that there is in fact some evidence of this collusion, just not enough to rise to the standard of criminal prosecution (ie beyond a reasonable doubt).

To be clear: "collusion" doesn't necessarily mean there is a crime. There is no reasonable question of whether there was any collusion between the Trump campaign and the Russian Government. We already know from court filings that prosecutors believe there to have been collusion between Russia and at least some members of the Trump campaign (see Manafort providing polling data, Trump Jr's meeting, Roger Stone's Wikileaks contacts). The question is how much of this activity was actually criminal, and in the context of the Mueller investigation, specifically how much of this activity sought to criminally interfere in the 2016 election.

Based on what little we know of the investigation's findings, it appears that sufficient evidence has not been found to bring criminal charges in this specific area of collusion, although it would probably be premature to reach that conclusion until independent eyes have seen the underlying findings. It would certainly be premature to conclude that all forms of criminal collusion have been ruled out, and flat out delusional to conclude that collusion of any sort between members of the Trump campaign and Russian Government has been effectively ruled out.

2. On obstruction, the investigation must continue 
Even by the Trump Administration's own words, Mueller explicitly did not exonerate the President on this issue. Rather, the report apparently lays out the evidence on both sides, and concludes that the matter is close enough that the Special Counsel did not feel it within his remit to make so determinative a judgement. According to the Barr summary, the Special Counsel declined to conclude on obstruction, and suggested that further consideration was required.

Let's be clear. From a legal perspective, this is by far the most significant detail revealed in the Barr Summary. It has been frustrating to see the media obsess over the collusion question (itself potentially left ambiguous as discussed above) while completely ignoring the actual conclusion that the President may have committed serious criminal offences.

Two things to say about this. First, when so serious a criminal charge has been left unresolved, it is obviously wrong for the Trump Administration to legally exonerate itself. This is an absurd situation. No matter what your political beliefs or ideology, clearly the accused should not have the power to be their own judge and jury. If this question has been left open, it must be concluded by an independent body, by Congress, or both.

Secondly, even if an appropriate body does take this matter into further consideration and rules a lack of criminality, the very fact that it can't be ruled out is still significant. The standard for criminal indictment is beyond a reasonable doubt. If your threshold is 95% certainty, and you conclude that the matter is borderline, that's still pretty alarming.

3. The Mueller investigation appears to be much narrower in scope than expected
If we can divine one new revelation about the Mueller investigation from Barr's summary, it is that it was clearly far more narrow in scope than people might have realised or hoped.

The investigation has been notable for its opacity and complete radio silence. At no point has it even been clear precisely what Mueller was investigating. Inevitably, this has led to great speculation.

There have been a great many allegations of Trump-Russia connections in the media since the start of this Presidency. Allegations of kompromat, the Don Jr Trump Tower meeting, decades of shady business dealings, the perjury charges over Trump Tower Moscow, to name just a few.

A lot of people had expected, perhaps out of hope, that the Mueller investigation would cast a blinding spotlight onto all of this activity. The revelation that Mueller was, ostensibly, only looking into one small aspect of this relationship will be a disappointment to many, and the answer to these burning questions appears no clearer in its wake.

4. Mueller is done, but the investigation continues
Fortunately, the apparent narrowness of the Mueller Report does not necessarily mean that these questions have been ignored, or are not being addressed elsewhere.

The Barr Summary makes clear that Mueller has referred many open threads to other investigators. It is reasonable to assume that many of the unresolved issues, for example Don Jr's meeting and the as yet un-indicted allegation that Manafort provided RNC data to the Russians (as stated in Mueller's court filings), may still be under investigation by other departments. There were already as many as seventeen known ongoing investigations, but following the conclusion of Mueller's evidence gathering operation, it is likely there could be dozens that remain open.

Indeed, while the Mueller investigation may be in the process of handing off cases to other investigators, and does not expect to make further indictments, this does not mean the Special Counsel's work is complete. After all, there are still ongoing court proceedings to be handled. Even this week, after the investigation apparently wrapped up, the Mueller Grand Jury was said to still be continuing robustly.

So if it was not obvious before, it is now quite clear that the Mueller report represents only the opening phase of this investigation.

5. Did Trump fire Mueller?
One question which has been surprisingly overlooked is whether the Mueller investigation had, in fact, run its course, or whether the Trump Administration forced it to end prematurely.

We already know that Trump has tried, or at least considered whether to fire Mueller in the past. He very publicly criticised his previous Attorney General Jeff Sessions for not being able to step in and shut down the investigation, and declared his own Deputy Attorney General Rosenstein a traitor. Ultimately, Trump did fire Sessions, and appointed Barr in his place. Within days, the Mueller investigation was brought to an end.

It seems difficult to come up with any other explanation for why the investigation would end when, by the Barr Summary's own words, a final conclusion had not yet been reached. It is even stranger that the investigation would willingly wrap up while court proceedings are still pending, or while the Special Counsel is as we speak fighting in the Supreme Court for a subpoena against a mystery foreign company. As recently as just two weeks ago, Mueller asked for an extension for sentencing Rick Gates due to the fact that he was still assisting the Mueller investigation, and the same has been done for Michael Flynn. Barely a week before submitting his report, Robert Mueller requested additional funding.

This begs the obvious question: if the Mueller's investigation was close to completion, then what were Gates and Flynn still cooperating on? If Mueller is still collecting evidence from this mystery company, then how can they declare now that there will be no further indictments? These very recent actions seem to suggest quite strongly that Mueller was expecting to continue his investigation for the foreseeable future, so what changed?

This is all highly suggestive of an investigation being rushed to a conclusion. People had reasonably speculated that Sessions was fired and replaced specifically to bring about an end to the investigation, and ostensibly that is exactly what has happened.

6. This is not the first time Trump has wrongly claimed exoneration
The Trump administration has been predictably direct in its response. "Total exoneration", "case closed". In Trump's view, the end of this investigation means that all other ongoing investigations must end, and all those in Government and the media who investigated him must themselves be investigated and locked up.

A few things here. First, the fact that a sitting President would even dream of suggesting using the Department of Justice for revenge and political imprisonment is grotesquely corrupt. It's the sort of thing that would have been unthinkable in America a few years ago. The fact that a politician can propose such a thing and not be forced out of office the next day is a shocking reminder of how far this country has fallen in recent years, and a warning of just how easily democracy can shift toward authoritarianism and lawlessness.

Second, quite why Trump chose the one word that the Barr Summary explicitly states that the report does not do (exonerate) is a baffling mystery, and only serves to exacerbate doubt as to the veracity of his statement.

But the key point to note here, is just how meaningless such a statement is. After all, this administration has claimed exoneration at every step of this investigation, regardless of what the facts have shown. This is, after all, a President who when his personal lawyer testified under oath that the President directed him to break the law, tweeted: "Totally clears the President!". This administration has constantly attempted to dismiss the ongoing criminal investigations through obfuscation and noise, and this situation is no different. This is simply another attempt by the administration to confuse and mislead, and much like the story of the Boy who Cried Wolf, at a certain point you just stop giving them the benefit of the doubt.

7. Is Bill Barr covering for Trump?
Let's not beat around the bush. The timing of this whole thing is highly suspicious. Trump spent months attacking his own Justice Department for not shutting down the Mueller investigation. He ostensibly fired Jeff Sessions for this reason, and appointed Bill Barr as his replacement. Almost immediately after that appointment, the Mueller investigation ended.

The administration's actions since have done little to allay these suspicions. The fact that Barr has so far refused to release the underlying report, as well as the flagrantly dishonest narrative coming out of the White House, have only served to sow further doubt in the minds of the public.

If the intention was to close the case and let the American people move on, they are going about it entirely the wrong way.

8. The Barr Summary might be both accurate and a cover up
One possibility that should not be discounted at this point is the idea that the Barr Summary can be both entirely accurate, and still a cover up.

From what we know, it seems the Mueller investigation has conducted a comprehensive investigation of Trump's connections with Russia. It is entirely plausible that Mueller's report may contain findings which, while not necessarily criminal, are politically embarrassing to Trump. For example if Mueller's report shows that Trump is financially indebted to the Kremlin, as he is alleged to be, that might not be a crime in itself but it would clearly be significant, and would hurt him politically. It may also convince suspicious Americans that he is, in fact, guilty of a crime, even if the investigation did not find enough evidence to formally charge him.

Bill Barr's recent letter to Congress seems to indicate that this may be the case, stating that the longer summary awaiting release will be redacted to remove embarrassing information.

This raises a tricky question. In such situations Justice Department protocol rightly states that the privacy of persons not charged with a crime must be protected. After all, if an investigation does not charge someone with a crime, releasing details of that investigation could nevertheless prejudice the public against that person and harm their reputation. There are, of course, allowances for deviation from this policy where it serves the public interest.

The question then becomes, if the investigation found that Trump is politically or economically compromised, should that fact be disclosed to the public, or is Trump entitled to keep all non-criminal dirt a secret? This is tricky ethical and legal ground without an obvious answer. Does the President have a legal right to lie to the American people so long as it is not criminal, and is the Justice Department obligated to protect that right? It may be that the answer is yes, but that doesn't mean that it is morally correct.

9. What should happen next?
Whatever the findings may be, and whether not this has happened appropriately or illicitly, it is clear that this first phase of the investigation is complete. The question now is what next?

In an ideal world where justice is carried out without political bias and where Government functions as it should, the next steps are obvious. The open question of obstruction would be taken up by Congress, as recommended by the Special Counsel, and brought to conclusion one way or another. This entire situation makes abundantly clear just how important it is to have independent oversight over our leaders, if for no other reason that to afford Americans the peace of mind that they are not being deceived. Sadly we do not live in that world, and it seems likely that this matter will be never be resolved apolitically.

The Trump Administration is clearly trying to use the Barr Summary draw a line under, not only this investigation, but all ongoing investigations. It also seems disturbingly likely that Trump will use the prospect of "revenge" investigations and political indictments as a core part of his 2020 campaign.

At this point, there is only one thing that seems capable of bringing this matter to a definitive end: releasing the full Mueller findings to Congress, and letting them do their job and provide appropriate oversight. Clearly some people will have concerns about whether the Democrats in charge of Congress will do this without political bias, but the whole point of referring the matter to Congress is that it will be public and transparent. That way, if the Democrats do behave inappropriately, people will be able to see it. For any concern that one might have with Congressional oversight, this is clearly a better situation than the current one, where the accused has exonerated itself and hidden all underlying evidence and findings.

This last point seems to be the key takeaway going forward. Whatever the investigation has found, the Trump Administration's handling of it's conclusion carries the clear whiff of corruption and cover up. This appears to have been the conclusion of the American people as well. A clear majority say that Trump has not been exonerated, while barely a third believe that he has been. An astonishing 75%, including a clear majority of Republicans, want the Mueller Report to be released in full. On top of this, Trump's approval ratings have barely budged, and YouGov even showed a slight dip this week.

Whether fair or unfair, it is clear that the public has not been convinced by the Barr Summary. People want transparency, and so far this administration has refused that. They want justice to be independent and apolitical, and yet currently the administration appears to be content to exonerate itself without external scrutiny. This impression may yet turn out to be undeserved or unfair, but the administration has only itself to blame when it acts without transparency or independence in this way.

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