james debate
james debate

Saturday 20 April 2019

It is another historic and deeply disturbing day in America. Two weeks ago I provided my analysis of Attorney General Bill Bar's summary of the long awaited Special Counsel report on the Trump Campaign's Russian connections and associated alleged criminality. Team Trump had tried to frame this event as a game-changer, "total exoneration", case closed. But in truth Barr's handling of the report did little to bring closure to the country, and with good reason. Today we can put much of that lingering ambiguity to rest, the actual Mueller Report has been released, albeit with some redactions.

Let's be clear, as there is a lot of misinformation out there. The Mueller Report is absolutely unequivocal: The Trump campaign colluded with Russia.

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

The findings of the Mueller Report
"Oh My God... This Is the End of My Presidency. I'm Fucked" - President Donald J Trump upon learning that a Special Counsel had been appointed to investigate his campaign.

We have long speculated as to the form the Mueller Report would take, but the time for speculation is now over. The redacted report can be found online at https://www.justice.gov/storage/report.pdf, and it is damning. I encourage everybody to have a look and read it for themselves. Do not just take my word or anyone else's for granted. Read the facts and make your own judgement. The final document is divided into two volumes.

The first paints a picture of a campaign that is, frankly, lousy with Russian connections. Dozens of Trump associates taking hundreds of meetings and communications with members of the Russian Government. Personal, political and business connections. The report lays out evidence of a campaign that was in near constant communication with the Kremlin, which was the subject of numerous overtures with regards to conspiring to influence a Federal election, and which frequently held itself out as completely receptive to those overtures. Mueller concluded that there was insufficient evidence to make a criminal case for any of this activity, but caveated this conclusion with the clear assertion that the obstructive behaviour carried out by Trump's associates had a material impact on that fact. These obstructive actions were, of course, themselves crimes, and some 40 persons have been indicted with 200 criminal charges between them.

Let's not mince words, this is collusion. Mueller's findings reveal a vast web of co-ordination and quid pro quo between the Trump campaign and the Kremlin. The Trump campaign knew that Russia were helping them win the election, and in turn made numerous and frequent assertions to the Kremlin that they would implement favourable policies, particularly with regards to Ukraine and the lifting of sanctions. The bottom line is this: Donald Trump knew the Russians were attacking America and said nothing because he knew they were helping him. This may not be a crime, but it is certainly unethical and disqualifying for office.

And it goes beyond this. The "fake dossier", that alleged Trump was compromised by the Russians, that Trump and his fanatics have spent so long deriding is corroborated on a number of details here. The Mueller report reveals for the first time that the Russians threatened Trump with "compromising tapes". The Mueller report reveals that Manafort assured his fellow indictees that Trump would pardon them all if they stayed loyal. Senator Richard Burr is shown to have been leaking evidence from the Senate investigation to the White House. White House Press Secretary Sarah Sanders admitted to Mueller that she lied to the public on numerous occasions. Mueller confirms that Trump campaign Chairman Paul Manafort shared polling data with the Russian Government, and adjusted campaign strategy accordingly.

There are so... many... details like this. The story being told here is of far more than just collusion. It's a full accounting of a regime that is so fully compromised, so rotten to the core, so totally bereft of morals. All of this behaviour is wrong. It's all inappropriate, it's all unethical, and it's all blatantly unpatriotic. This is corruption at the very highest level, a revelation of just how murky the Trump swamp truly is. The trouble is that this collusion is not necessarily criminal, and where it may have been criminal ended up being too difficult to prove.

Let's also be clear about this. Many of the Trump campaign's interactions were explicitly identified as potentially criminal. Mueller's report methodically examines each instance and explains why criminal charges were or were not pursued. Many of these incidents only avoided prosecution by the skin of their teeth. The report explicitly states that a key reason for the lack of prosecution on collusion is due to obstructive efforts staged by Trump's various associates, many of which themselves led to prosecution.

But it's the second volume of this report that is the most damning. This is the volume which deals with whether or not the President committed criminal obstruction of justice. In this case Mueller declines to make a prosecutorial judgement (more later on why), but rather lays out the evidence in meticulous detail and defers the question for further consideration.

We already knew many of the key events from media reporting, but Mueller provides new details that suggest Trump really was behaving in nefarious ways - deciding to fire Comey but then asking Rosenstein to say he came up with the idea, and asking Jeff Sessions to un-recuse himself specifically to end parts of the investigation. In other instances, Trump's obstructive efforts appear only to have failed because members of his team talked him out of it, or flat out refused to follow orders. Perhaps the single most striking part of the report is how directly and plainly Robert Mueller states that Trump intended to hamper the investigation.

There are a few other key points to note with respect to Mueller's obstruction findings:

  1. Mueller clearly and explicitly recommended the question be resolved by Congress, not the Department of Justice. On no fewer than four occasions Mueller stated in no uncertain terms that Congress has the authority over this matter;
  2. Mueller explicitly declined to make a conclusion due in large part to the the Department of Justice policy on not indicting a sitting President;
  3. Mueller explicitly states that the President may be indicted upon leaving office;
  4. Mueller was so comfortable that he had all the evidence needed for an obstruction charge that he declined to subpoena the President, as he felt it was not needed in order to prove mens rea;
  5. Mueller explicitly states that he believes a thorough FBI investigation would be able to prove beyond a reasonable doubt criminal intent on the part of the President.
In Robert Mueller's own words: "If we had confidence after a thorough investigation of the facts that the President did not commit obstruction of justice, we would so state. Based on the facts and applicable legal standards, we are unable to reach that judgement."

The Trump Administration has spent the last several weeks spinning the lack of an obstruction indictment as an indication that the matter was inconclusive. But a reading of the actual findings show this clearly not to be true. Mueller makes abundantly clear that he chose not to make a prosecutorial judgement due to the unusual circumstances of the case, in particular the DOJ/OLC rules on indicting a sitting President. He also makes clear that there is a case to be heard, and that Congress, not the DOJ, has the authority to conclude that case. There is a real case to obstruction, and Mueller in effect has laid out a road-map to investigation and probably impeachment for Congress to follow.

Bill Barr can no longer credibly lead the DOJ
While the report his highly damning on the President and campaign, equally disturbing is what it reveals about the conduct of the Attorney General of the United States Bill Barr. While the Attorney General is a political appointee, it is historically a role that the holder seeks to perform apolitically for obvious reasons. Perhaps the most troubling aspect of the Mueller Report is the extent to which it makes clear that Barr has not been conducting himself in such a way.

If the country was skeptical of Barr's initial summary, it was downright alarmed by his behaviour since then. During his Congressional testimony he parroted the President's much derided conspiracy theories about being "spied" on (numerous courts have already ruled that investigators did nothing inappropriate) and blaming a conspiracy of media witch hunts and "illegal" leaks. It is impossible to interpret Barr's press conference on the day of the release of the report, in which he did little but regurgitate his previous summary and storm out under difficult questioning, as anything other than a political PR stunt. Such brazenly political conduct from the nation's top law enforcement official is unbecoming of his office, but following the release of the Mueller Report his behaviour appears even more insidious and disturbing.

There are a number of stark and material differences between Barr's summary and subsequent comments on the Mueller Report and the actual findings of that report. Most significantly, Barr claimed that Mueller's refusal to prosecute on obstruction was due to a lack of evidence, and not because of the rules regarding indictment of a sitting President. Mueller explicitly contradicts this, stating in no uncertain terms that a core reason for not making a prosecutorial judgement is the OLC policy. Barr also claimed that Mueller did not indicate any preference for Congress to take up the obstruction question. Even putting aside the patent absurdity that the Special Counsel, appointed specifically to allay concerns that the DOJ would not investigate itself objectively, would defer back to that very DOJ, Mueller makes clear on numerous occasions that Congress does have authority in this matter. Perhaps most significant is Barr's declaration that Mueller concluded that Trump would shielded from facing obstruction charges upon leaving office, something which is expressly refuted in the report.

Some of the discrepancies can be charitably described as misleading or partial descriptions, but other statements were flat out false, and provably so. Was Barr lying about the contents of the report? At a minimum it is clear that he sought to misrepresent Robert Mueller's findings, and when combined with his hagiographic press conference and constant use of propagandistic non-legal language it paints a very worrying image of a Justice Department that has been politicised far beyond anything this country has seen before.

More to the point, one of the reasons the Mueller Report looks so damning is because of how unfavourably it compares to Barr's summary. While it is undoubtedly bad, it arguably would not have seemed too catastrophic some two months ago against the pre-Barr summary expectations. Barr's clumsy attempts at spin instead served to lower expectations, and may ironically have made the actual report seem even worse than it might have done.

A vindication for the media
So the report looks pretty bad for just about everyone involved, but there are some clear winners, not least of all in the media.

For years we have heard this terrifying populist spiel about how the media are "fake news" and "the enemy of the people". Dangerous, dishonest rhetoric designed to poison the public against the legitimate and independent fourth estate so as to blunt its ability to shed light on corruption. Now that we have the Mueller Report, one of the most striking realisations is just how accurate a lot of the reporting has been.

The report has corroborated numerous incidents that the administration had dismissed as fake news, and really there were surprisingly few revelations that had not at least been discussed in the media. There is absolutely no doubt about it, this was a huge vindication for the media.

At the risk of sounding awfully self-serving, it is also something of a vindication for myself and this blog. Look again through my write-up of the Barr summary, and it's striking just how much of what I wrote has in fact been borne out in the actual fact of the Mueller Report. I know some people took exception with my analysis on the basis that it did not coincide with the messaging their chosen team was trying to put out, so hopefully this can serve as an important reminder to all of us to follow fact and evidence rather than trying to make something as fundamental as the rule of law into a partisan contest.

What happens next?
This is a historic moment in this country. There is so much in this report that is of significance.

Even aside from the headline findings, all the unexplained Russia connections, the fact that the President may have criminally obstructed justice. There is also the apparent confirmation that Russia attempted to manipulate the President by threatening him with compromising materials. It's been bizarrely overlooked in comparison to the potential criminality, but even the fact that the report has documented admission from the Trump administration that they just lie to the public continually. There is so much in this report that portrays this administration in a devastating light.

The report is also quite clear on what should happen next. Robert Mueller referred some 14 investigations to other teams in the Justice Department, and the vast majority of the Mueller Report's redactions appear to concern ongoing matters. The redactions appear to have predominantly been made to sections concerning Wikileaks and the election hacking portions of the report. In addition there are a number of notable absentees from the "why we declined to prosecute" section like Jerome Corsi, Carter Page plus others. You can make what you will of that, but it implies that a number of the concerned individuals may either be cooperating with or the target of ongoing investigations.

Most significantly, the report makes clear that Congress alone has the authority to continue and conclude on the question of obstruction of justice. As holders of the majority in the House of Representatives, the Democratic Party now has a constitutional obligation to see this through. The Democrats should initiate hearings on obstruction of justice immediately and subpoena all necessary evidence. Depending on where that leads, they should then consider the question of impeachment. There is absolutely no ambiguity that this is what SHOULD happen, but the truth is it is very unlikely.

The reality is that Donald Trump is up for reelection next year. He has abysmal approval ratings and this report will not have done him any favours. The Democrats have zero political incentive to impeach him, rather they have every incentive to let him keep doing what he's doing, and use his unpopularity to drive another election victory in 2020. The Democrats are highly unlikely to impeach Trump unless something comes along that is so dramatic it is impossible to ignore.

I want to be clear on this. These are political considerations, and I do not support this approach. In my view the rule of law is paramount, and if Trump did commit a crime then Democrats are obligated to provide oversight and enforce those laws. If they fail to do so then I would consider that a damning indictment on the Democrats' ability to govern seriously. If Trump did commit a crime then he needs to be made an example of, if for no other reason than to show the country that we are a nation of law. Allowing him to finish his term and lose at the ballot box would be tantamount to normalising unacceptable conduct, and sets a terrible precedent that the law only applies selectively.

For everyone else that is reading the Mueller Report and this article, I think there is one key take away that I would stress above everything else. We now have the facts before us in print, there is no longer any ambiguity. It is time for all of us, Democrat, Republican, and myself included, to put aside the silly political gamesmanship and biases and face reality.

It is far past the time where anyone can credibly say with a straight face that this is all some kind of hoax or political stunt. It is far past time where anyone can claim that nothing happened and this is all just business as usual. This all really happened. This is a damning report, illustrating a web of widespread and ongoing misconduct in Government. And you know what? It's a Republican this time, but once one party gets away with it, the other party will just do the same. None of us should find this acceptable.

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