The Surprises in the Mueller Report

From the instant Robert Mueller’s report landed yesterday, a nation of legal experts and analysts began tearing into its 432 pages, skipping past the heavy black ink of redactions, and weighing the special counsel’s findings and conclusions against the president’s claims about his campaign’s behavior with the Russians. What surprises lurked in the two thick volumes released by the Department of Justice? And, given Attorney General William Barr’s decision not to pursue any charges, which of Mueller’s findings will end up mattering the most for the remainder of Donald Trump’s presidency? POLITICO Magazine went to some of the brightest legal minds in America for the answers. We’d already seen plenty of detail through the 199 criminal charges, and 37 criminal indictments and plea deals that emerged from Mueller’s investigations, and in the countless news stories issued in the 100 weeks since Robert Mueller was appointed special counsel. But there were still surprises, depending on what you were looking for—from Robert Mueller’s under-argued case for publishing an obstruction report at all to the sharp contradiction—noted by many of our experts—between Barr’s public statements and what Mueller’s team actually found. Here are their responses: *** ‘The report did not exonerate the president’ Marisa Maleck is a senior associate with King & Spalding, and a former clerk to Supreme Court Justice Clarence Thomas. I found the most surprising part of the report to be two-fold: One, that special counsel Mueller went out of his way multiple times to dispel the notion that there is any concept called “collusion,” and that what he investigated was instead coordination and conspiracy; and two, that the report did not exonerate the president even with respect to conspiracy and coordination. Although the report stated that there was “no evidence” of conspiracy or coordination, it left open the possibility that there may be evidence out there that the president’s associates suppressed. Some individuals invoked their Fifth Amendment right against self-incrimination. Some information was screened even from the special counsel and his team. Several people affiliated with the Trump campaign (including Michael Flynn, George Papadopoulos, Michael Cohen and Paul Manafort) lied or provided incomplete information to the special counsel about their interactions with Russian-affiliated individuals. Still others deleted communications or used encryption that did not provide for the long-term retention of data. And with respect to redactions within the report, the ones concerning the Trump campaign’s interest in WikiLeaks’ releases of hacked material are particularly concerning. The special counsel declined to make a recommendation on obstruction mostly because the Office of Legal Counsel has concluded, most recently in 2000, that a sitting president is immune from indictment. The report made clear that it is up to Congress to decide whether to use impeachment as a remedy. So what will matter most for the remainder of the Trump presidency is whether the House of Representatives will file articles of impeachment based on the substantial allegations that the president may have obstructed justice. *** Mueller whiffed on a crucial legal question Josh Blackman is a constitutional law professor at the South Texas College of Law Houston, and an adjunct scholar at the Cato Institute. The special counsel’s report spans more than 400 pages. However, only 12 pages are dedicated to a critical question: Can the federal obstruction of justice statute apply to the president? Robert Mueller treated this question—which is separate from whether a sitting president can be indicted—in an underwhelming fashion. Attorney General Barr stated in his press conference Thursday that he “disagreed with some of the special counsel’s legal theories.” I can speculate about one such theory: Mueller failed to do the necessary work to show that the precedents of the Supreme Court, and the Justice Department, support the application of the obstruction statute in this context. Mueller could have avoided the entire second volume of his report—which spends 182 pages summarizing his obstruction of justice investigation—if he had simply concluded that the obstruction statute does not apply to the president. There is no reason to detail whether the president violated a federal law, if the federal law does not apply to the president. The Supreme Court has historically been hesitant to resolve disputes between Congress and the president, and its justices have suggested that general statutes should not limit the president’s power unless Congress expressly indicated an intent to do so. Mueller declined to exercise this caution. Why? First, he reasoned, the Office of Legal Counsel has suggested that applying the federal bribery statute to the president “raises no separation of powers questions.” Second, Mueller reasoned that the prohibition on obstruction was indistinguishable from the prohibition on bribery. Therefore the obstruction statute could be applied to the president. This analogy between bribery and obstruction, which supports much of Mueller’s analysis, falters. Accepting a bribe is an impeachable offense that cannot in any situation be considered a lawful exercise of presidential authority. An obstruction charge is very different. For example, Mueller implies that Trump’s removal of James Comey as the FBI director, with a corrupt intent, could constitute obstruction of justice. The president’s lawyers countered that the termination was a lawful exercise of presidential authority. Applying the obstruction statute to the president raises separation of powers questions that the bribery statute does not. Mueller should have taken this more restrained, and correct, approach. *** ‘The campaign certainly tried to collude’ Bradley P. Moss is a national security attorney in Washington It is shocking how misleading and disingenuous the attorney general’s four-page letter, and his subsequent remarks at the press conference, turned out to be. The Mueller report identifies numerous instances of interactions with Russian nationals—by the Trump campaign or Trump associates—in an effort to gain hacked emails and to coordinate their dissemination. That may not be enough to warrant criminal conspiracy charges, but saying there was no collusion—as Barr did—is brazenly dishonest. The campaign certainly tried to collude. Similarly, the attorney general’s description of the president’s lack of corrupt intent regarding obstruction is contradicted by the Mueller report. The president repeatedly tried to shut down or interfere with the investigation. He dangled pardons to try to get people to keep quiet. That he was saved by his aides’ willingness to ignore his rants and instructions is a weak defense. This matter will remain a stain on the Trump presidency going into 2020. Whether the public will care remains to be seen. *** ‘Americans should be proud of what we just witnessed’ Mark Zaid is the executive director of the James Madison Project and a co-founder of Whistleblower Aid. What was most intriguing from the report so far was the revelation that 14 criminal referrals had been made by the Office of Special Counsel to various U.S. Attorney’s Offices and we had only publicly known of two of them. Clearly, Trump and his family are not out of potential hot water. Additionally, looking at the investigation from the 30,000-feet view, Americans should be proud of what we just witnessed. We had the president of the United States investigated by a non-partisan group that fairly and fully explored all the facts it believed needed to be reviewed, and the republic survived intact. The fear the president expressed when he learned of the appointment of Robert Mueller as special counsel, which deserves scrutiny as to why he felt that way, was unfounded, and that is a good thing. *** ‘The facts are muddy’ Miriam Baer is a professor at Brooklyn Law School and a former assistant U.S. attorney in the Southern District of New York. Those who slog through the special counsel’s report may find surprising the sheer amount of time that Trump spent directing his aides to say or do things on his behalf that were either untrue or aimed at undermining the Mueller investigation. Among the vignettes that stand out are the president’s failed attempt to have K.T. McFarland draft a statement, the day after he offered her the ambassadorship to Singapore, denying Trump’s involvement in Michael Flynn’s efforts to discuss American sanctions with Russian officials; the president’s unsuccessful pressure on Don McGahn to fire the special counsel; and the president’s (also unsuccessful) attempts to use Corey Lewandowski to direct Jeff Sessions to truncate the Special Counsel’s investigation. All of these efforts are damning, particularly in the aggregate—but they also demonstrate the challenges inherent in an obstruction case. The facts are muddy. There are a lot of moving parts, and it’s difficult to keep track of all the details. The portrait they paint nevertheless falls far short of an exoneration. *** ‘If the attack were a bombing rather than a hacking, perhaps the magnitude of the problem would be clearer’ Justin Levitt is an associate dean at Loyola Law School and was a deputy assistant U.S. attorney general from 2015 to 2017. The Mueller report makes unmistakably clear that Americans were attacked by foreign military units: specifically Russian “Military Units 26165 and 74455.” And it reminds us that the president and members of his campaign invited and welcomed those attacks, even if it did not arrange them, and that they were eager to profit from the proceeds of those attacks. That should be of immense concern. If the attack were a bombing rather than a hacking, perhaps the magnitude of the problem would be clearer. The hack was no less an attack than something more literally explosive. We should all be disturbed by the lack of clarity regarding our ability—and our will—to deter similar future interference in our election process. And though I don’t know whether that will be the element of the Mueller report that matters most for the remainder of the Trump presidency, it should be. *** ‘Mueller flinched’ Paul Rosenzweig is a former deputy assistant secretary for policy at the Department of Homeland Security from 2005 to 2009 who also served on the staff of the Whitewater investigation of President Bill Clinton. The obstruction of justice portion of the report reads like a prosecution memorandum that is leading up to a conclusion to recommend an indictment. It lays out the facts in painstaking detail, some of which (like the discussions of a Manafort pardon) are classic efforts to influence witness testimony. It then contains a lengthy legal analysis of why these acts are criminal and why the legal counter-arguments are mere hand-waving. And then, at the dénouement, when the conclusion should have read “for these reasons we recommend an indictment,” the report radically changes tack. Any other American in the same circumstances would likely be facing criminal charges. Mueller flinched—and that’s a shame. *** Mueller documented a ‘pattern of conduct that leaves us wondering whether Barr made the right call’ Laurie L. Levenson is professor of law and David W. Burcham chair of ethical advocacy at Loyola Law School. She was formerly an assistant U.S. attorney in Los Angeles. It is actually surprising how much Barr tried to spin this report in favor of the president. Given his prior public service, I had hoped Barr to rise to the occasion and be more forthright with the American public. But, he wasn’t. At minimum, the report details how the Trump campaign took advantage of Russian election interference, and the president himself made many efforts to stymie the investigation into what exactly happened. The report may not make a finding of criminal wrongdoing, but it certainly presents troubling behavior by a person who should be trying to protect our democracy. After this report, I think that the Trump presidency will be forever under a cloud. The details of the report portray a president who is obsessed with his own political power and who was, in the report’s words, willing to engage in “multiple acts … that were capable of exerting undue influence over law enforcement investigations, including the Russian-interference and obstruction investigations.” What is troubling here is that these were not simply individual acts by the president; it is a pattern of conduct that leaves us wondering whether Barr made the right call in not authorizing the obstruction charges. *** ‘Special counsels are supposed to decide, not make debating points for each side’ Alan Dershowitz is a professor emeritus at Harvard Law School. Most surprising is the failure of the report to come to a definitive conclusion as to whether the president obstructed justice. Special counsels are supposed to decide, not make debating points for each side. What’s here that will matter the most for the remainder of the Trump presidency? The dissenting arguments that Trump did obstruct justice. The Democrats will use that in much the same way that the a Republicans used Comey’s statement that Hillary Clinton had been extremely careless in her handling of the email server. *** ‘The report treats the obstruction fact-finding as a first step, not a conclusion’ Jennifer Taub is a professor of law at Vermont Law School. I was surprised by something that was missing from the Mueller report. Nowhere does Mueller invite Barr to shut down the obstruction investigation into Trump. Yet that is exactly what Barr did in the four-page letter he sent to congressional leaders nearly one month ago, in which Barr made it seem like Mueller kind of gave up at the end and deferred on whether to press charges. The report shows that this is clearly not the case. Mueller gathered substantial evidence that while in office, Trump obstructed justice. The report treats the obstruction fact-finding as a first step, not a conclusion. And while Mueller revealed that he felt bound by the Office of Legal Counsel guidelines that consider indicting or prosecuting a sitting president to be impermissible, he asserts that obstruction statutes apply to presidential conduct, and appears to contemplate future legal action. As an alternative to an immediate indictment, the Mueller report suggested two paths: While in office, the “constitutional process” would be impeachment. But, Mueller writes, “while the OLC opinion concludes that a sitting president may not be prosecuted, it recognizes that a president does not have immunity after he leaves office.” Given that “a criminal investigation during a president’s term is permissible,” the report also stated that due to “the strong public interest in safeguarding the integrity of the criminal justice system, we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials available.” That does not sound like an invitation for Barr to take it upon himself “to determine whether the conduct described in the report constitutes a crime.” This report does not exonerate the president. Far from it. This apparently criminal conduct will not suddenly disappear if Trump is not re-elected and the statutes of limitation have not yet run out. *** ‘Mueller improperly seized the power’ to interpret the Constitution and the scope of the president’s authority John Yoo is a professor of law at U.C. Berkeley Law School and was a deputy assistant U.S. attorney general from 2001–2003. I think that one of the most surprising parts of the report was its discussion of why it could not reach definite conclusions on obstruction of justice. Barr concluded on the facts and the law that DOJ could not charge Trump with obstruction. He and Mueller clearly were bound by past DOJ opinion that a sitting president cannot be indicted. But even if a president lost that immunity, Mueller could not indict on obstruction because he a) chose not to seek a live interview under subpoena from Trump, and; b) allowed Trump to provide written answers without addressing obstruction. The investigation could not reach a conclusion on obstruction because it could not decide whether Trump had a “corrupt” state of mind without interviewing him. At the same time, Mueller says that he believed he could have sought a subpoena and forced Trump to testify, but chose not to do so for reasons that did not seem compelling. A second surprising part of the report: At the end, Mueller argues that the president does not have a constitutional defense to a charge of obstruction. Trump’s lawyers argued, I think to good effect, that Congress could not pass laws criminalizing a president’s exercising of his constitutional powers, such as the power to remove federal law enforcement officials. I believe that this is the correct reading of the Constitution’s separation of powers—otherwise, Congress could make it a crime simply to fire an executive branch officer unless Congress approves. Mueller improperly seized the power, which is actually vested in the attorney general, to interpret the Constitution and the scope of the president’s constitutional authority. The most important thing for Trump going forward, is whether the House will initiate an impeachment investigation. Mueller tacitly invites such an investigation in his discussion of why DOJ doesn’t indict presidents (so as to permit other constitutional processes to occur, i.e, impeachment), and why he went ahead and conducting an investigation on obstruction anyway (to preserve evidence and fresh testimony). *** Mueller’s writings on obstruction suggest he believed ‘the final decision should go to Congress’ Mimi Rocah is a distinguished fellow in criminal justice at Pace Law and a legal analyst for MSNBC and NBC News. The most surprising thing I’ve learned so far from the unredacted portions of the Mueller Report is how significant the case of obstruction of justice is against Trump, and just how badly Barr mischaracterized the report, both in his four-page letter to Congress and Thursday morning at his press conference. Barr clearly tried to give the impression that it was an open question on obstruction that Mueller simply didn’t reach. But I don’t read it that way. I read Mueller’s decision on obstruction to be that there was a lot of evidence of obstruction and evidence of criminal intent (which Mueller indicated in his explanation for why he didn’t pursue the interview with Trump), and that the final decision should go to Congress. This seems to be the most potentially consequential part for the presidency, because I think it requires Mueller’s immediate testimony and potentially the beginning of impeachment hearings if we don’t want this behavior repeated in future presidencies. One redaction that looks important starts on volume 1, page 51. The section titled “Trump Campaign and the Dissemination of Hacked Materials” is largely redacted due to the potential bring “harm to ongoing matter.” Which matter is that, and will we see the results of that publicly at some point? *** ‘Mueller’s view of the Constitution is a sharp rebuke of Mr. Barr’s efforts’ Jimmy Gurulé is a law professor at Notre Dame who was an assistant attorney general under President George H.W. Bush and a Treasury undersecretary under President George W. Bush. While there is much to criticize in the Mueller report, it does uphold a fundamental tenet of the rule of law: No one is above the law, including the president. The Mueller report directly refutes Barr’s astonishing claim, in his June 8, 2018, memorandum to Acting Attorney General Rod Rosenstein, that Trump is exempt from prosecution for obstruction of justice. Specifically, Barr maintains that Article II of the Constitution vests Trump with extraordinary powers. He argues that Trump can fire any member of the executive branch for any reason, including for the corrupt purpose of terminating an investigation targeting the president, his family, and close associates. According to Barr, such action does not constitute obstruction of justice. Thus, the president is above the law. Mueller takes exception to that extraordinary claim, stating that “the obstruction statutes … restrict presidential action … by prohibiting the president from acting to obstruct official proceedings for the improper purpose of protecting his own interests.” Furthermore, Mueller states, “The proper supervision of criminal law does not demand freedom for the president to act with the intention of shielding himself from criminal punishment, avoiding financial liability, or preventing personal embarrassment.” Mueller’s view of the Constitution is a sharp rebuke of Barr’s efforts to protect the president from the obstruction laws. *** The Mueller Report is ‘deeply confused and confusing’ about its own purpose Rick Pildes is a professor of constitutional law at NYU Law School and a former clerk for Supreme Court Justice Thurgood Marshall. On the obstruction issue, the Mueller report is, to my surprise, deeply confused and confusing about the fundamental issue of what the report means to be telling us. The obstruction analysis begins with a statement of four principles that governed the analysis. The most consequential of these will come as a stunner to most people: “We determined not to apply an approach that could potentially result in a judgment that the president committed crimes” (emphasis added). In other words, the report was never going to reach a judgment about whether the president had committed a crime. No matter what the facts showed, the special counsel determined at the outset, as a matter of principle, that it would be inappropriate to conclude that the president had committed a crime. I assume most people would have thought the entire point of the special counsel investigation on obstruction was precisely to determine whether the president had committed any crimes. But the report concludes that because the president cannot be indicted while in office, it would be “unfair” in principle to conclude he had committed a crime, because unlike the ordinary criminal defendant, he would not soon have a trial in which he could clear his name. In other words: Since the president cannot be indicted while in office, he also can’t be found by the Justice Department to have committed a crime while in office. So what was the point of the obstruction phase of the investigation? Merely to “preserve the evidence when memories were fresh and documentary materials available.” The report states that if the evidence had left the special counsel convinced the president had not committed a crime, the report would be able to tell us that. Thus, we are told both that the special counsel would not be able to say if he’d concluded the president had committed a crime, and that the special counsel was able to say that he cannot conclude the president did not commit a crime. But if these considerations of “fairness” to the president are correct, they would presumably also prohibit the attorney general from publicly concluding that the president had committed a crime. If the report had at least been clear and explicit throughout about how narrowly Mueller conceived his role, it could have expressly said things like, “We believe only Congress can decide whether a president has committed a crime while in office” or “We will only present you with our factual findings and our view of the general legal principles involved.” That would at least have left clear the limited role the special counsel believed the Department of Justice can play in evaluating potential presidential criminal liability. But instead, the report assessed whether each event it examined could be considered obstructive. This leaves the impression that the special counsel evaluated each event and concluded that one could argue either way about whether it could be part of an obstruction crime. There is a large difference between saying (1) it is not our role, it is only for Congress to decide whether a crime has been committed, and (2) we are indeed evaluating the merits and we conclude the case could go either way. I am afraid Mueller’s report muddies the difference between these two positions. The result is that partisans will have plausible bases for reading the obstruction analysis consistent with their prior partisan preferences. *** ‘An indictment in all but the formalities’ Larry Robbins is trial and appellate litigator at Russell Robbins. He has argued 18 cases in the United States Supreme Court and has served as both a federal prosecutor and defense lawyer. Mueller’s stated rationale for declining to reach a judgment about obstruction rests on an almost absurdly delicate conception about the president’s ability to answer such charges. The evidence of obstruction gathered in Volume II is absolutely devastating (Barr’s claim, in his four-page letter, that the report simply sets out evidence on “both sides of the question” is wildly misleading). Admittedly, Mueller could not actually indict on obstruction—he understandably regarded DOJ policy (however wrongheaded) as precluding that option. But his unwillingness even to reach a judgment—in the face of so much evidence against the president—is predicated on the view that, without an indictment, the president would be disabled from answering such charges. But if we’ve learned nothing else from the last two years, it is that Trump has an array of weapons at his disposal for sticking up for himself (or enlisting his media allies to do so). For Mueller to reach no stated conclusion, and then handing off his report to an attorney general who auditioned for the job with a memo asserting that any obstruction prosecution on facts such as these would be unconstitutional, all but ensured that the ordinary operation of the federal criminal law would fail. Despite Mueller’s stated unwillingness even to reach a formal judgment on obstruction, Volume II of the report is an indictment in all but the formalities. No one can read that volume and fail to imagine what Mueller would have done if he—instead of Barr—were the AG. *** ‘The Department of Justice will not indict a sitting president for anything’ Richard W. Painter, a professor at the University of Minnesota Law School, was the chief White House ethics lawyer from 2005 to 2007. The second part of the report reveals that the lack of an ultimate conclusion on obstruction of justice turns in large part on the fact that the Department of Justice will not indict a sitting president for anything. The report contains substantial—indeed overwhelming—evidence that the president committed acts that would be criminal obstruction of justice if committed by anyone other than the president and may very well be criminal even if committed by the president. There are 10 instances in which the president tried to end or obstruct the investigation. Some of these instances arguably have a defense based on presidential powers, but that constitutional question is not resolved. It is very likely that it would not be resolved in the president’s favor with respect to all 10. The only way to find out is to indict Trump and let the courts decide. 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