Here is my sincere description of what’s in it, based on actually reading it, carefully, from start to finish.
VOLUME I: RUSSIAN INTERFERENCE AND THE TRUMP CAMPAIGN
Russian Interference was “sweeping and systematic”
First, and most importantly, “The Russian government interfered in the 2016 presidential election in sweeping and systematic fashion.” There were two components — the social media campaign and the hacking-and-release campaign. The Russian campaign began in 2014 as an effort to simply fan the flames of polarization and discord, but over time evolved into support of Trump.
The FBI Investigation into Russian interference and involvement with the Trump began with a report from a foreign government, not the Steele Dossier.
The investigation into the Trump campaign began in July 2016 based on a report from a “foreign government” about a meeting in May 2016 in which Trump campaign foreign policy advisor George Papadopoulos told Professor George Mifsud that the Russian government had Hillary Clinton’s emails. This was before anyone in the US Government had seen the so-called “Steele Dossier.” The report states: “Papadopoulos had suggested to a representative of that foreign government that the Trump Campaign had received indications from the Russian government that it could assist the Campaign through the anonymous release of information damaging to Democratic presidential candidate Hillary Clinton. That information prompted the FBI on July 31, 2016, to open an investigation into whether individuals associated with the Trump Campaign were coordinating with the Russian government in its interference activities.”
The Trump Campaign had many links to the Russians.
The report documents over 100 meetings between Trump campaign officials and the Russians. That’s about 100 more than would be “normal” in any other campaign. That said, the context of this campaign was different — i.e. Trump was a businessman who had long ties to Russia, so some degree of contact might be understandable. But the number of meetings with Russians, and the number of people in Trump’s orbit who had meetings with Russians, and the degree to which those people tried to hide the meetings, was extraordinary.
The Russian Government and the Trump Campaign had the same goal — defeat Hillary Clinton and get Donald Trump elected.
The many meetings between Trump campaign personalities and Russian government represented took place within the context of shared objectives (to help Trump defeat Hillary) and a belief that Russia could help the Trump campaign achieve his objective. Russian help was appreciated and desired.
For the collusive Actions of the Trump Campaign to be chargeable as conspiracy, a “high bar” must be cleared.
The report reminds that “collusion” is not a crime — and thus the crimes that they were looking at were conspiracy, campaign finance violations, failure to register as a foreign agent, and lying to cover up unsavory contacts. The report makes the point that in all cases, the “bar” was high because of the way the laws are written. In particular the “scienter” element was a problem — scienter meaning prosecution would have to show that the actions were “knowing and willful.” There was concern that in many cases the individual in question did not know the law, and many of the laws require knowledge in order for intent to be proven — and without establishing intent, the prosecution would fail. For campaign finance violations, there was concern about the “thing of value” dimension to what was being offered — would it prove substantial enough to hold up in court as a felony? In all cases, Mueller was guided by Justice Department prosecution standards that require he have a “high probability” of success.
The Inquiry Was Hampered by Deceitful Behavior by Many Trump Campaign Individuals
The inquiry did the best it could, but was faced with repeated efforts by Trump and Trump allies to obfuscate and frustrate the investigation. In addition to lying (some of which resulted in prosecutions and some did not), individuals: “deleted relevant communications or communicated during the relevant period using applications that feature encryption or that do not provide for long-term retention of data or communications records. In such cases , the Office was not able to corroborate witness statements through comparison to contemporaneous communications or fully question witnesses about statements that appeared inconsistent with other known facts. Accordingly, while this report embodies factual and legal determinations that the Office believes to be accurate and complete to the greatest extent possible, given these identified gaps, the Office cannot rule out the possibility that the unavailable information would shed additional light on (or cast in a new light) the events described in the report.” All of that amounts to a big asterisk, that the investigation may not have gotten to the actual bottom of the situation.
In sum, Trump Campaign Officials cooperated with Russia toward a shared goal, but did not “coordinate or conspire” sufficiently to meet the standards used by DOJ in deciding to prosecute.
The report details the many contacts, the shared objectives, the deceitful behavior toward investigators, but in the end concludes that the high standard the DOJ uses for making prosecution decisions, no prosecution would have the high probability of success that the DOJ requires, and so no charges were brought. A key consideration was the need to prove beyond reasonable doubt that the charged individual “knowingly and willfully” violated a law about which they were knowledgable and aware. Mueller made he judgment that successful prosecution was, in essence, a 50-50 proposiion, and DOJ standards require a 90% probability of success. Hence, although the report documented a wide range of deceitful, inappropriate behavior, no charges were brought.
VOLUME II: INVESTIGATING OBSTRUCTION OF JUSTICE BY PRESIDENT TRUMP
Mueller accepted the DOJ Office of Legal Counsel position that a sitting President cannot be charged.
At the very beginning of this part of the report, Mueller says he is an employee of the DOJ and the DOJ has taken the position in a memo from the Office of Legal Counsel (OLC) that a sitting president cannot be charged. Therefore the investigation of obstruction will NOT attempt to determine yes/no, prosecute or not, but rather will conduct ” a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.” He explains that while the OLC memo precludes prosecution, it does not preclude investigation, and further, once out of office a President can be charged. So the purpose of the investigation is to find the facts, report them, and save evidence so that options such as impeachment or indicting after Trump is out of office, are preserved.
Mueller expects Congress to review the report and make its own decision about impeachment proceedings.
In various ways, the report signals that it is intended to support “constitutional processes for addressing presidential misconduct” — which refers to impeachment. It repeatedly makes clear that Congress is expected to review the findings and if further action is appropriate, it is up to Congress to take it. At no point does the report indicate any expectation that the attorney general will make such determination. “Constitutional processes” and “separation of powers” and “checks and balances” are referred to repeatedly — all pointing in the direction of Congress holding the power to make a decision about further action.
If the investigation had exonerated the President, it would say so. It doesn’t.
In one of the most widely quoted portions of the report, it makes clear that if the fact-finding had exonerated the President, the report would so state. It doesn’t. The full passage is: “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. Based on the facts and the applicable legal standards , however , we are unable to reach that judgment. The evidence we obtained about the President ‘s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”
Presidential conduct is examined in detail and analyzed against the “elements” of “Obstruction of Justice.”
To prove a crime occurred, the “elements” of that crime must be shown. So in each of the ten categories of presidential conduct that were examined for evidence of Obstruction, the conduct was first presented factually, then was analyzed in light of he elements of obstruction. Keep in mind — it was stated at the outset that no conclusion would be drawn. Rather the “format” of the report was to find the facts, then compare those facts to the elements of obstruction, then leave it up to Congress.
The report examines ten categories of action by Trump that raise concerns of obstruction.
The examples examined included basically all the things we’ve been hearing about in the media for two years — trying to get Comey to go easy on Flynn, firing Comey, trying to get McGahn to fire Mueller, etc. It also includes some we hadn’t heard about — notably an effort to get Corey Lewandowski, who was no longer part of the administration, to carry a message to Jeff Sessions to get Sessions to unrecuse himself and then redirect the Mueller investigation to only investigate future acts of Russian interference.
In each and every case, at the end of the presentation of facts, the report analyzes those facts as to whether or no they meet the “elements” of obstruction. In virtually every case, the analysis shows how those elements of obstruction have been met. The report states: “Three basic elements are common to most of the relevant obstruction statutes: ( 1) an obstructive act; (2) a nexus between the obstructive act and an official proceeding; and (3) a corrupt intent.” In most cases, the three elements are met to a great degree.
The report analyzes the argument, put forward by the President’s lawyers, that firing Comey (or anyone) cannot be obstruction.
The report also notes and acknowledges the defense argument that when the President takes a legal act such as firing someone under his authority, he is exercising “Article II” authority as President, and exercising such authority cannot be, according to the President’s lawyers, an act of obstruction. The report acnkowledges that this is an argument, and takes a long and detailed look at it. It finds that if the firing is done for corrupt purposes, then it can be obstruction, but acknowledges that this would be an area of contention in legal proceeding. but notes: “The obstruction statutes thus would restrict presidential action only by prohibiting the President from acting to obstruct official proceedings for the improper purpose of protecting his own interests.”
The President tried to obstruct, but was frustrated when subordinates refused his orders.
The report cites example after example of the President trying to obstruct the investigation by ordering subordinates to take obstructive actions-but the subordinates refused. McGahn refused to fire Mueller; Lewandowski failed to take the message to Sessions; Reince Priebus, Hope Hicks, all refused orders that were obstructive.
The Final conclusion of the obstruction section clearly does not exonerate the President.
The final paragraph of the report is: ” Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President ‘ s conduct. The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time , 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. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.
MY COMMENTS ON THE REPORT
Balance, Probity, and Sober Analysis
First of all, it was a pleasure to read something as carefully and thoroughly researched, investigated, and analyzed as this. It is hard to believe that a rational person could actually read the report and not conclude that it was undertaken fairly, without a partisan bias. Already we know that partisans, starting with the President himself, are claiming otherwise–but the report itself is an example of balance, probity, and sober analysis.
The report exposes the shallowness of much of the “legal analysis” we get on television.
One thing the report exposes is the shallowness of most of the “legal analysis” we are subjected to on cable news and elsewhere. The depth and quality of the legal analysis of, for example, what it would take to achieve a conviction for conspiracy with the Russians, is significantly more detailed and nuanced than what we were getting from the pundits. The same is true for the analysis of obstruction. This analysis — particularly in the “collusion” area — among other things illuminates the inadequacies of current laws in an age of social media and instantaneous global communication. A key takeaway is that bad behavior occurred on the part of Americans that contributed to the compromise of our electoral process — but the laws as written are not adequate to curtail this behavior.
The report exposes Attorney General Barr as a political operative.
No rational person could read the entire report and conclude that Attorney General Barr’s four page letter, or his press conference recitation, were a fair presentation of the contents of the report. He clearly assumed the role of partisan political operative. That’s really indisputable at this point. He directly lied about what the report found about obstruction, claiming that Mueller was unable to reach a conclusion because the facts left him unable to do so, when it is clearly and unequivocally stated in the report that he never even attempted to reach a conclusion, but rather limited what he did based up on the OLC memo. Barr knew this and his misrepresentation is nothing short of breathtaking. It’s as if he didn’t care that people were going to read the report and see, clearly, that he had lied — because he knew that what he said would be what was reported on Fox News, etc, and it was what the President wanted, and that was what mattered. That is the calculation of a political operative.
How much can one man lie?
I am left wondering how much one man can lie and get away with it. The report exposes Trump’s deceitful nature on virtually every level imaginable. Whether it is responding to a question “did you insruct McGahn to fire Mueller” with “fake news”, or surreptitiously choosing a then private citizen (Lewandowski) to carry backchannel messages to Sessios, Trump systematically is shown to engage in blatant lying. This of course is not news …. it has been “in the news” throughout his Presidency. But seeing it on the pages of this authoritative, investigative report is sobering, and leaves me wondering how anyone could actually read this and come away from it with a positive impression of the President.
What About Impeachment?
There is no doubt whatsoever that the report provides a “road map” for impeachment. It’s all there. The question is — is the evidence so compelling that impeachment must be undertaken as a moral imperative in order to protect the office of the presidency and the integrity of our institutions, even if undertaking impeachment is ultimately politically damaging? Or, alternatively, does the report leave us in a gray area where yes, impeachment is justified, but it is not absolutely required, and the political calculation that a failed impeachment bid by the dems will hurt their chances in 2020 should be a major consideration.
I’m still mulling this. Principles are important, and those who today, like Elizabeth Warren, are claiming impeachment is a must as a matter of principle, have a point. But so too do those, like Nancy Pelosi, who say it’s not worth it, and the election is just around he corner, keep your eye on the ball, dems.
At this point, I come down slightly on the side of Pelosi, and I mean slightly — as in 52-48 or thereabouts. It wouldn’t take much to move me to the other side of this divide. What shades me on the side of “move on” is that I fear the damage done by this President to the country is so great, and will be so much greater if he gets four more years, that the strategic imperative is to end Trump’s era in office, and the more the focus is on the election that is fast upon us, the more likely a dem win in 2020. If instead the national focus is on the psychodrama of impeachment, I fear it will erode dem prospects in the election. And winning the election in 2020 is the overarching imperative, at least for me.