In the coming days and weeks, reporters and legal analysts will comprehensively analyze Robert S. Mueller III’s report laying out in excruciating detail Russia’s attempt to interfere with our election, President Trump’s team’s willingness to benefit from such interference and even obtain Hillary Clinton’s purloined emails, and Trump’s systematic, continual efforts to thwart the investigation. For now, let’s look at five topics that will require further clarification from Attorney General William P. Barr, Mueller and some of the figures involved.
First, the degree to which Barr and other members of the Trump administration, including press secretary Sarah Sanders, actively and thoroughly misled or even outright lied to the public is jaw-dropping. In spinning the report, Barr has shown himself not only to be acting as defense counsel to Trump but also to be in violation of his professional ethics as a lawyer. When he suggested, for example, that Mueller left the decision on whether Trump had engaged in criminal conduct to the attorney general or that Trump fully cooperated (he refused to sit for an interview) or that the president’s actions were somehow justified because he was “frustrated,” Barr was actively misleading the American people.
As former prosecutor Mimi Rocah tells me, “It seems quite clear Mueller intended for Congress to decide obstruction because he did not feel he could make a traditional prosecutive decision regarding the President so Barr not only inserted himself in that [process] but he really misrepresented that Mueller hadn’t given any indication of believing Congress should decide.”
When Sanders said the White House received complaints about FBI morale from within the FBI or that Trump had never contemplated firing Mueller, she was lying. These may not be criminal actions, but they were violative of their oaths to serve the American people and to uphold the Constitution and laws. Both Barr and Sanders should be compelled to resign. The media should be unyielding in its questioning of Sanders and in demanding she come clean on the myriad ways she misled the people who pay her salary.
Second, the idea that Mueller found there was “no collusion” has been debunked. Collusion, as we have pointed out numerous times, is not a legal term, and Mueller reiterated that very point, declining to render a judgment on collusion. What he looked at was whether there was sufficient evidence of a criminal conspiracy. That, however, leaves a wide range of conduct that included encouraging hacking of Hillary Clinton’s emails (which Russians did hours after Trump publicly suggested they do so); echoing Russian denials that they were interfering with the investigation; and Paul Manafort’s meeting with Konstantin Kilimnik in which Trump’s Midwestern campaign strategy was discussed (!). In sum, Mueller found the Trump team “expected it would benefit electorally from information stolen and released through Russian efforts,” and when, for example, WikiLeaks did just that, Trump went back to the WikiLeaks email dumps again and again.
Third, there is replete evidence of obstruction of justice. Mueller makes clear that he was not going to render a decision on criminality because Justice Department guidelines prevented him from doing so. However, both in his analysis and in his compilation of facts, he provides Congress with at least as much evidence for obstruction as existed against President Richard M. Nixon.
Mueller says bluntly that Trump exercised “undue influence” over the investigation and would have decapitated the probe if not for staffers such as former White House counsel Donald McGahn. Mueller enumerates the actions Trump took to interfere with and obstruct the investigation, such as ordering McGahn to fire Mueller (an order that prompted McGahn to threaten to resign), weighing in with witnesses, trying to get Attorney General Jeff Sessions to unrecuse himself, ordering Deputy Attorney General Rod J. Rosenstein to lie about the real reason for FBI Director James B. Comey’s firing, helping to put out a false statement concerning the Trump Tower meeting, and asking Director of National Intelligence Daniel Coats and then-CIA Director Mike Pompeo to publicly deny links between Trump and Russia.
Mueller, in essence, said he could only exonerate Trump if the facts warranted. He explicitly did not exonerate Trump (because the evidence suggested otherwise). He could not make an affirmative finding of obstruction because that was beyond his purview under Justice Department guidelines.
Constitutional scholar Laurence Tribe tells me, “Volume II provides a perfect roadmap for impeaching this president for obstruction of justice if the House opts to pursue that path.” He continues, “Although Attorney General Barr did his darnedest to get in the way, and may have succeeded in creating a narrative that will protect the president, he had no way to erase or scrub that roadmap into oblivion.” Tribe points out that “it’s not just that the Mueller Report on p. 8 of the second volume says the Special Counsel’s Office is ‘unable to reach [the] judgment’ that ‘the President clearly did not commit [the crime of] obstruction of justice’ but that the Report elaborates numerous shocking instances of what any objective observer would have to describe as such obstruction.” And he concludes, “In a word, if we could imagine the Constitution’s framers reading this report on what President Trump had personally done to interfere with and undermine lawful inquiries into Russia’s role in helping him win the presidency, we would have to conclude that they would have regarded him as guilty of many high crimes and misdemeanors worthy of impeachment and removal from office.”
Mueller specifically rejected the theory Barr laid out in his “audition” memo last year that Trump’s actions within his Article II powers could not be considered obstruction of justice.
Fourth, the mainstream media’s report on the incidents that Mueller examined with regard to obstruction were, in virtually all cases, completely correct. The White House’s denials were bogus and right-wing cheerleaders who claimed the media got it “wrong” were themselves wrong. Trump did try to fire Mueller; he did mislead the public regarding the Trump Tower meeting; and he did try to influence witnesses.
Finally, there is much more to come. Mueller’s investigation referred 14 investigations to outside prosecution, 12 of which were redacted in the report. The Southern District of New York prosecutors and the New York state attorney’s office continue to investigate Trump’s finances, his foundation and other leads provided by Trump Organization chief financial officer Allen Weisselberg and private attorney Michael Cohen.
One can question whether Trump should be prosecuted and whether it would be wise to impeach him, knowing the Republican Senate will never remove him. What is unarguable is that no person who has behaved in ways Mueller described — including repeated lies to voters and efforts to impair an investigation — should be reelected. Republicans who insist otherwise once more disgrace themselves.