[T]he introductions and executive summaries of our two-volume report accurately summarize this [Special Counsel] Office’s work and conclusions. The summary letter the Department sent to Congress and released to the public late in the afternoon of March 24 did not fully capture the context, nature, and substance of this Office’s work and conclusions. … There is now public confusion about critical aspects of the results of our investigation. This threatens to undermine a central purpose for which the Department appointed the Special Counsel: to assure the full public confidence in the outcome of the investigations.
Special Counsel Mueller’s Letter to Attorney General Barr, March 27, 2019
Venturing into the debate of the Russian probe, the work of the Special Counsel Robert S. Mueller, and the ongoing and what seems like a never-ending saga in conjecturing and opining on what was concluded after two years of investigation based on the March 2019 Report On The Investigation Into Russian Interference In The 2016 Presidential Election, is about as wise as stirring up a hornets nest without protection. So, I won’t.
My aim is not to make a case one way or another (even if I express my views) on whether Trump and/or his campaign aides and family members conspired with the Russians to influence the results of the elections or whether Trump obstructed justice in trying to influence the integrity and results of the Mueller investigation. I am merely pointing out some reasons why the Report is worth the time to read – even if you could care less about US politics. But first, some general observations.
My views on what was uncovered over the past two years were formed after reading the public version of the full Report. I am not suggesting that my views are right or that they should be taken at face value. My views are informed, rightly or wrongly, from my reading of the Report and based on my approach in reviewing disclosure material for my work, an approach that I also try to be mindful of when reading non-fiction. I try to check my thoughts and feelings at the door in order to clinically review and analyze the material. It takes self-awareness and discipline, but there is no other way. Spin only comes into play afterwards, and only if the objective is to persuade others to accept a desired point of view. Good advocates do this two-step analytical process methodically, if not unconsciously.
Sadly, when it comes to issues that are near and dear to us, or when we allow our prejudices and emotions to get in the way, some otherwise rational (and no doubt well-intentioned) thinkers instinctively gravitate to what they think is or should be the result – even before looking at the facts, they do so with jaundiced eye. And so, I was not surprised to hear from folks whose opinion I generally value, prejudgement of what was in the Report, or, because of their political or social views, expressions of dismay as to whether the Russians interfered in the 2016 presidential elections, but even if they did so, what’s the big deal: par for the course, routine practice for some countries, including the US. Or that obstruction did not occur because there was no underlying crime charged – never mind what the law on obstruction may be.
All I can say is read the Report in its entirety with an open and objective mind, dispassionately – not from a fixed view of what you may think happened or based on how you wish the facts presented in the Report to be interpreted to fit the desired narrative. Even with the best intentions, subjectively reading the Report (or any document) skews the reader’s ability to come to a conclusion that is not pre-ordained or manifestly misapprehended. Hard as it may be, best to set aside any biases, however well founded, against law enforcement agencies such as the FBI or intelligence agencies such as the CIA, political affiliations, or worst of all, any impressions that may have been formed by the pithy and patently misleading representations of US Attorney General William Barr in his four-page summary.
It was no accident that Barr put out a quick and dirty summary of the Mueller Report, which, per design, was intended to sway minds while he withheld the Report from the public for three weeks (a few days would have been more than enough) on the pretext that the body politic needed the bottom line (his, as it turns out, and not an accurate one) of the Report, because it would take too much time to scrub the Report clean of classified or non-disclosable information. Of course, once his (and Trump’s) narrative of Mueller effectively giving Trump a clean bill of health crystalized in the public’s mind, the game would be over – the body politic would have moved on, as opposed to be drilling down on the Report. A masterful strategy that seems to be working – and not just with the Trump base, but others who, as I noted, were already primed with fixed views because of their preconceptions or biases.
Where one comes down after reading the Report is of no interest to me. From my reading of it, a compelling case is made that the Russians attempted and likely succeeded in interfering with the elections, and perhaps affected the result. There is compelling evidence that members of the Trump campaign colluded (not criminally conspired) with the Russians by trying to work with them to get accesses to dirt on Hillary Clinton, the Democratic candidate. There is nothing new, and within limits, there is nothing wrong with conducting and using opposition research. The lines may not be as bright as they should be, and the way the Trump folks went about trying to get their hands on this information shows a lack of sophistication – even inanity. While the conduct did not rise to the level of a crime, whether such conduct should be condoned raises questions of morality and patriotism – questions that, depending on one’s views, may or may not be appropriate. As for obstruction of justice, the Report shows (if the facts are accepted) that Trump massively engaged in obstructive behavior, and were he an ordinary citizen, in my opinion, he would have been charged on multiple counts of obstruction of justice.
Some takeaways from the Report
On Interference in the 2016 Presidential Elections. Obviously, it is not acceptable for a foreign government to interfere with the elections or political process of another country. That’s a no-brainer. Just because the US has engaged in similar conduct through other means does not make it right for the Russians to do it to the US. As the saying goes: two wrongs don’t make a right. Absent, however, from the debate of the Russian interference is the need for US politicians and citizens to acknowledge and come to the realization that when the US engages in such activity – as it seems to be doing currently in Venezuela by effectively encouraging a coup d’état – it is just as guilty as the Russians are in interfering with the 2016 presidential elections. The US’s behavior is just as unacceptable. Nothing gives the US the moral, let alone legal authority, to overthrow governments or to engage in activity that undermines the electoral process of states – normally done in the name of US’s interests, geopolitics, or realpolitik. Now that the US is on the receiving end, it is high time for introspection. There may be instances when regime change may be necessary for humanitarian reasons (such as in Syria), but there are international norms all states must abide by in effecting such change.
On the role of WikiLeaks in disseminating hacked information. Not a crime. Where, however, its founder, Julian Assange or anyone else is engaged in or attempts to hack into government or private servers, irrespective of the reasons (in this case it was, as the Report suggests, to assist Trump win the elections) then, depending on the applicable criminal laws, such conduct could very well be criminal and subject to prosecution. The facts are not known, so to conclude one way or another is to prejudge; best to wait and see what the evidence will show and how any relevant criminal laws are interpreted.
On Collusion. It is not a crime. Nor was Mueller tasked to determine whether collusion occurred, though in finding insufficient evidence to conclude whether Trump or members of his campaign engaged in the crime of conspiracy, the factual matrix of the events and actions investigated do suggest attempts by the Trump campaign to collude with the Russians in obtaining compromising information on Clinton (illegally gotten, by the way) to benefit Trump’s chances of being elected. It may not feel right and may even be unpatriotic and morally repulsive to be reaching out for or to be receptive to accepting and using such information from a (hostile) foreign state. But if the evidence does not establish that all the elements of a crime are met or if the evidence is insufficient to obtain and sustain a conviction, even if a crime may have been committed, it should not be charged (see my earlier post on the Mueller Report here).
On obstruction of justice. No underlying crime needs to be charged in order to obstruct justice. It helps, but it is not a prerequisite. Nor does the absence of an underlying crime mitigate the obstruction. Only three basic elements need be satisfied to find obstruction: 1. an obstructive act, 2. a nexus between an obstructive act and an official proceeding, and 3. a corrupt intent (see Vol. II, p. 9). This may be a peculiarity to the US criminal code, but it is what it is. And there are plenty of examples. Whether obstruction of justice occurred in this case is a matter of interpretation. Mueller did not say one way or another, though he does note that if he was able to conclude that no obstruction had occurred, he would have concluded it. The reason he refrained from making this call is because under a US Justice Department policy memorandum (untested, and, in my opinion, not settled law), a sitting President cannot be indicted. As such, were Mueller to conclude that Trump should be charged with obstruction of justice, since Trump would never be charged during his presidency (which, if re-elected would run until 2024), it would infringe on his due process right to have his day in court to defend himself and clear his name. But also, since his hands were tied because of the Justice Department guidelines, Mueller left it up to Congress to decide based on the Report and whatever other evidence gathered, whether to pursue the matter through impeachment proceedings.
The bottom line, the fact that Trump was not charged by Mueller does not mean that Trump did or did not obstruct justice. Barr took it upon himself to make the conclusion that the evidence to secure a conviction on obstruction did not rise to the level of proof beyond a reasonable doubt. In other words, while Trump may have obstructed justice, Barr declared the evidence fell short for charging him.
On legal ethics. In Volume II there is a detailed section outlining Trump’s interactions with White House Counsel Dan McGahn, who was questioned by the Mueller team for 30 hours. What is recounted, in detail, are efforts by Trump to get McGahn fire to Mueller for bogus reasons, to lie, to create false narratives in the press and in writing, and more. Whether these efforts by Trump amount to obstruction (in my opinion, yes) is subject to debate. The takeaway however is unmistakable – at least when it comes to legal ethics. Repeatedly, McGahn ignores or refuses to follow Trump’s instructions. Aside from saving Trump from Trump, he does what is expected of lawyers in the finest tradition of our profession: he stays true to the code of ethics and professional responsibility. Pushing back on the President and not caving in or engaging in situational ethics for the sake of holding on to his job, is no small matter. Yet, that is what is expected of lawyers.
Aside from speaking truth to power, there are times when following the client’s instructions can lead a lawyer into committing serious ethical violations. And as McGahn rightly shows, no client, no job, and no case are worth keeping when called upon to behave unethically. But also, as the Report shows, by standing up to Trump, McGahn did what was expected of him in saving his client from hurting himself, and this is very good lawyering – even if unappreciated by the client.
On the Report. Even if you are not interested in this matter, if you want to see a well constructed, well drafted, well presented piece of writing (notwithstanding White House Counsel Emmet Flood’s description of the Report as “part ‘truth commission’ report and part law school exam paper”), and if you are interested in upping your legal writing game, I recommend reading, indeed analyzing, the Report. Volume I, though a fascinating read, may be less interesting since it deals with the Russian interference and far too many passages are redacted. Volume II deals with obstruction. In simple language, it sets out Mueller’s remit, the law, the facts, the linkage of the facts to the elements of obstruction, and an analysis of the facts as they relate to the elements. While no bottom line is offered, the reader is provided with a cogent roadmap from which to draw his or her conclusions on ten instances of potential obstruction of justice. The summaries to the two volumes are also worth examining; from a technical point of view, they are masterfully drafted.
The debate on what is in the Report and what if anything should the US Congress do – to impeach or not to impeach Trump – will not subside any time soon. High politics are in full swing. So be it. My point in posting on the Report is not to persuade on the substance, but to urge anyone interested in the facts to read the Report as opposed to rely on pre-conceptions, biases, or spin. And as I noted, the Report, as a piece of legal writing, is of such high quality, that for those in the trenches who are constantly drafting legal submissions and are looking for good samples to emulate and learn from, the time spent in going over the nearly 400-page Report is well worth the effort.
Finally, for those who might be interested in honing their advocacy skills, I highly recommend watching Barr’s testimony before the Senate Judiciary Committee. The questioning (and speech-making) ranges from the sublime to the ridiculous. Barr obfuscates, misdirects, half-answers, and at times seems to come close to committing perjury (not enough to be disingenuous and misleading). An astute observer will notice how he claims not to understand what is being asked of him and needing to have the question repeated – while the tumblers in his mind are working out a clever hair-splitting answer while also eating up the questioner’s time (limited to five minutes per Senator). Again, make up your own mind, but from an advocate’s perspective, skills are, in part, acquired by watching good and bad questioning, seeing how examiners deal with clever, difficult, and evasive witnesses under strict time constraints, and lots more. As for the substance of his testimony, that will have to wait for another post – perhaps after hearing Mueller’s testimony before Congress.