What Mueller got Wrong

The Mueller Report and Mueller’s investigation were deeply flawed in three ways.

In a few days, Congress will question Robert Mueller about his investigation into Russian interference in the 2016 presidential election. The Mueller Report clearly shows how Russia interfered in the election, and how Donald Trump and his campaign encouraged that interference, and later obstructed the investigation into that interference.

Fundamentally, though, the Mueller Report is flawed in three ways, and failed to adequately address it’s main purposes of drawing conclusions about coordination between Russia and the Trump administration, and President’s Trump’s possible criminal misconduct.

The purpose of the investigation

First, Mueller did not abide by the original purpose of the investigation, (to investigate “links and coordination”) between Russians and the Trump campaign, but instead, took a prosecutor’s viewpoint and focused on the many crimes of Trump associates. In doing so, he avoided his responsibility to clearly highlight coordination (or “collusion”) between Russia and the Trump campaign — which was the original purpose of the investigation.

The Trump campaign actively encouraged Russian interference, and there are several events that suggest that coordination, or “collusion” occurred. Instead of focusing on these, Mueller hid behind the much more complex legal idea of “criminal conspiracy,” saying there wasn’t enough evidence of this.

Mueller failed to adequately draw conclusions about coordination between Russia and the Trump administration, and President’s Trump’s possible criminal misconduct.

This was a flawed approach simply because establishing criminal conspiracy requires proof of the intent and actions of the co-conspirators. And since Mueller had no power to investigate Russians’ intent and actions in relation to efforts by Trump’s team to “coordinate,” he never had any chance to prove it, and set himself up for failure here from the start. In the end, to borrow a popular metaphor, Mueller was sent to map a forest (in this case, collusion by the Trump campaign), and came back with lots of pictures of trees (the many individuals in the campaign who committed crimes).

Mueller wasn’t clear about his conclusions

Second, Mueller did not clearly state his conclusions regarding obstruction, but hid behind legal semantics. He offered the opaque and confusing statement: “we considered whether to evaluate the conduct we investigated under the Justice Manual standards governing prosecution and declination decisions, but we determined not to apply an approach that could potentially result in a judgement that the President committed crimes.” (Mueller Report, Volume 2, p.2)

What he found, but didn’t explicitly say, is: there is sufficient evidence to prosecute President Trump for obstruction, but bureaucratic guidelines prohibit the prosecution of a president while still in office. This allowed the Attorney General and the president himself to alter the narrative to the factually incorrect, “There wasn’t sufficient evidence of obstruction” (Attorney General William Barr) and “No Collusion, no obstruction,” (Trump).

Mueller failed to investigate the main subject of his investigation

Third, Mueller failed to adequately investigate the main subject of his investigation, President Trump. Obviously, it is the job of an investigator (and a prosecutor) to question the subject of his investigation, and subpoena him if he fails to cooperate. Mueller didn’t do this. Though Trump was the main subject of the investigation, Mueller did not interview or question him directly, and did not issue a subpoena to do so. Instead, he sent some written questions to Trump.

Trump’s written answers to these questions clearly warrant further investigation. Trump ignored or responded, “I don’t recall/remember,” to over 80% of the questions from Mueller. This itself demands further investigation. But again, Mueller failed to do so.

Below, I’ll take a look at all three of these issues that show why the Mueller investigation was badly flawed.

I. Coordination vs. “criminal conspiracy”

There are several events that occurred during the 2016 presidential campaign that indicate that coordinated effort occurred between the Trump campaign and the Russians to interfere in the election. Trump himself begged Russia to interfere on his behalf, and the Russians quickly obliged. His campaign staff welcomed Russia’s help, and his Campaign Manager Paul Manafort provided Republican polling information that would have enabled Russia’s social media interference. Trump’s opposition researcher, Roger Stone, also reportedly was in contact with WikiLeaks, to coordinate the release of stolen (by Russia) Democratic emails. And Trump’s own answers to Mueller’s written questions, are also suggestive of a coordinated effort — or “collusion.”

On a basic level, coordination can be as simple as two people or groups working together toward a common goal. And “collusion” can be a similar kind of cooperation where the two are cooperating on a criminal activity (in this case, interfering in the election, which is a federal crime). “Criminal conspiracy,” however, is much more narrow. As Mueller describes in Volume 1, page 2 of his report, criminal conspiracy requires that the two parties cooperate on a specific criminal act, with agreement between the two, and each taking at least one action in committing the crime.

Mueller set himself up for failure here from the start.

This is a much stricter requirement than merely cooperating on something. In fact, in this situation, it makes the standard practically impossible. With no ability to investigate in Russia, and with enough intermediaries in between (which is almost inevitable between two rival countries without close ties), Mueller set an impossible standard for his investigation. Effectively, one group of the co-conspirators might as well have been on the moon.

Below is a closer examination of some of the events which are clearly — or highly suggestive of — coordination or the intent to collude in a broad sense, but which did not meet Mueller’s impossibly narrow standards of criminal conspiracy. First, a brief examination of how Mueller arrived at his purported mandate of investigating “criminal conspiracy.”

Mueller vs. Comey

In 2017, FBI Director James Comey was authorized to investigate, “the Russian government’s efforts to interfere in the 2016 presidential election, and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts…” and, Comey said, “As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.”

The Trump campaign actively encouraged Russian interference, and there are several events that suggest that coordination, or “collusion” occurred.

President Trump fired Comey in order to stop his investigation, and subsequently the Department of Justice appointed the Special Counsel with the same mandate. Mueller’s emphasis was different, however, as he writes in his report ( Volume 1, p. 11). The Special Counsel’s purpose was to conduct “the investigation confirmed by then-FBI director James B. Comey,” including links and/or coordination between the Russian government and individuals associated with the Trump campaign, any other matters that arise from the investigation, and any other matters within the scope of 28 C.F.R. 600.4(a), which describes the Special Counsel’s authority to prosecute federal crimes committed in the course of the investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.

Notice that the detail in last part wasn’t in Comey’s original statement (although it was implied). Notice also, that this became the purpose of Mueller’s investigation. 34 indictments and guilty pleas have been issued as a result of Mueller’s investigation, and Mueller describes (on page 2 of Volume 1) how he adopted the prosecutor’s role of finding “criminal conspiracy” (a term not listed in either Comey’s original statement, nor his own) instead of the original mandate of “links and/or coordination.” Mueller writes:

“We applied the framework of conspiracy law, not the concept of ‘collusion’… collusion is not a specific offense or theory of liability found in the United States Code, nor is it a term of art in federal law.”

Effectively, one group of the co-conspirators might as well have been on the moon.

Thus, since “collusion” is not in the criminal code, nor a “term of art” that he was comfortable with, Mueller made the choice to focus on the much more difficult (in fact, virtually impossible in this case) concept of ‘criminal conspiracy’ with which he was more comfortable and accustomed.

Below are five events from 2016 which strongly indicate that coordination occurred, but do not meet Mueller’s standard of “Criminal conspiracy.”

Coordination but not Conspiracy

Russian agents began targeting email accounts connected to Hillary Clinton’s office five hours after Trump pleaded for their help. (Mueller Report, V. 1, p. 49)

Trump begged for Russia to interfere in the election

Trailing Hillary Clinton badly in polls, on July 27, 2016, Trump desperately pleaded with Russia to interfere in the election on his behalf. At a press conference, referring to personal emails which were supposedly deleted by Hillary Clinton, he said: “”Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.” Page 49 of Volume 1 of the Mueller Report notes that Russian agents began targeting email accounts connected to Hillary Clinton’s office five hours after Trump pleaded for their help.

In the end, Trump received almost exactly the type of help he requested. Russia hacked in to the Democratic National Committee’s email server and stole tens of thousands of emails. These emails were strategically released to help Trump — most notably on October 7, 2016, a few hours after the Access Hollywood tape was released in which Trump bragged about sexually assaulting women.

Mueller asked Trump (in writing) what he meant by (asking Russia to get Hillary Clinton’s emails), and why he asked Russia specifically. Trump answered (in writing): “I was joking… I don’t recall… I don’t recall.”

It should be noted that Mueller points out that Russia hacked in to the DNC’s server before Trump had begged for them to “find” Hillary Clinton’s emails. This suggests that Trump already knew that Russia had done this hacking, and that his campaign was aware of it — and possibly colluded in this effort. Otherwise, why would he specifically ask Russia, and not someone else, to hack Hillary Clinton’s email?

Mueller failed here by not pursuing this. Though it appears that Roger Stone, and also Trump, knew about the hacking, and that Stone may have coordinated the email release (see below), Mueller failed to press Trump himself on this. Instead of questioning Trump directly, he allowed Trump to respond to written questions about this and all other matters. Mueller asked Trump (in writing) what he meant by the question, and why he asked Russia specifically to do this, and if he had been told that Russia was trying to hack Clinton’s server. Trump answered (in writing): “I was joking… I don’t recall… I don’t recall.”

A good investigator would have pressed for more information here. Remember, the whole point of the investigation was to uncover “links and coordination.” This incident strongly suggests “links and coordination,” possibly conspiracy even. Outside of Russia, Trump was the main subject of the investigation; the investigator should have demanded information from that subject. Mueller didn’t pursue this further, and let Trump go.

Conspiracy or Collusion? Overall, this incident is highly indicative of coordination at a very basic level between the Trump campaign and Russia — i.e., two groups working together for the same outcome. This is what Mueller was supposed to investigate, but as his report states (Volume 1, p. 2), Mueller limited himself to the very narrow, and in this case impossible standard of criminal conspiracy, which requires the two parties to work together, on the same specific criminal act. (See the section below on Roger Stone for further explanation of how this might have met the standard of cooperation, but not criminal conspiracy.)

The Trump Tower Meeting

Here, Russians met at Trump’s residence with Donald Trump Jr., Campaign Manager Paul Manafort, and Trump’s Son-in-law and Senior Advisor Jared Kushner. The premise of the meeting was that the Russians had “dirt” on Hillary Clinton, in the form of evidence of money funneled to her from illegal Russian activities.

No such evidence was produced, according to Mueller, and therefore there was no criminal act or conspiracy here. And this wouldn’t even meet the broader definitions of “cooperation” or “collusion,” since there was only the intent to commit an illegal act (obtain foreign help to interfere in the election) but no act took place.

But the incident establishes that the Trump Campaign, even at the highest level (campaign manager, son, and son-in-law), intended to collude with Russia in interfering in the election. They just weren’t successful here.

Conspiracy or Collusion? Thus far, there is no criminal conspiracy, but clearly there is an intent to do so, both by Trump (above), and senior members of his campaign.

Paul Manafort, Republican Polling data and Social Media Interference

Mueller devotes a large section of his report to describing and investigating social media interference in the 2016 election. Essentially, Russian agents set up fake social media accounts and “botnets” (an automated social media account — although the description of botnet activity is redacted from Mueller’s report — see page 28 of Volume 1) to disparage Hillary Clinton and promote Donald Trump in order to interfere in the election. They spread false stories about Clinton, and even organized rallies on Trump’s behalf, particularly in swing states like Florida and Pennsylvania.

Was this “coordination?” Yes, unless you want to believe that the Russians, who were at the time engaged in active election interference, wanted the polling data for its entertainment value.

Knowing where to focus their efforts was crucial, and that’s where Paul Manafort came in. The Mueller Report describes how Manafort provided Republican polling data to Konstantin Kilimnik, who Mueller says, “the FBI assesses to have ties to Russian Intelligence.” (Volume 1, p.129)

The polling data would have helped the Russians to target their efforts, like where to plan rallies for the best outcome. The Mueller Report notes that polling data was provided on multiple occasions, but since Mueller can’t prove what the Russians did with this data (and therefore he can’t establish that it was used for a “criminal act”). He can’t prove criminal conspiracy here.

It is bizarre that Mueller didn’t make this connection, or thought that election polling data might be used for something other than election activity.

Was this “coordination?” Yes, unless there is some other feasible explanation why Russians would have wanted early U.S. election polling data, other than to use it in their efforts with regard to the election. Put differently, the only reason to obtain election polling data is to guide your election efforts. The Republican party paid consultants to conduct the polls and get the data to aid their election strategy. The Russians, likewise, needed it to aid their election interference strategy.

It is bizarre that Mueller didn’t make this connection, or thought that election polling data might be used for something other than election activity. On Russia’s end, their “activity” was interference in the election. While Mueller couldn’t prove that they used it, to conclude that there was not a coordinated effort seems almost fantastical.

Conspiracy or Collusion? Still no “criminal conspiracy.” But coordination and collusion? Yes, unless you want to believe that the Russians, who were at the time engaged in active election interference, wanted the polling data for its entertainment value.

Roger Stone and the release of Russian-hacked emails

Roger Stone, a political consultant who specializes in finding dirt on opponents (“opposition research”) was reportedly in contact with both WikiLeaks and Donald Trump multiple times from June 2016 until the election. WikiLeaks released some of the emails that the Russians stole, again, most notably on October 7, 2016, shortly after it was revealed that Trump bragged about sexual assault on the Access Hollywood tape released that day.

The Mueller Report discusses this matter from pages 52–59 of Volume 1, but this section is almost entirely redacted. The reason for the redactions are that it may cause “harm to an ongoing matter,” and the “matter” is most likely the trial of Roger Stone, which is still pending.

Since most of this section is redacted, we can’t tell what Mueller concluded here. We can, however, look at Mueller’s overall conclusion that he wasn’t able to find that there was criminal conspiracy between Russia and the Trump Campaign.

We can also look at published information on Stone, which reports that he was in contact with WikiLeaks multiple times during this time, and with Trump as well. Since Stone’s specialty is exactly what WikiLeaks did (releasing damaging information on a political opponent) it is a pretty fair assumption that this is what they were discussing. (What else would they have discussed?)

The difficulty is in all the intermediaries. If Russia stole Democratic emails with the intent of interfering in the election, and gave them to Roger Stone who released them that would clearly be conspiracy to commit the act of election interference. But here, Russians stole the emails, and transferred them to WikiLeaks. And Stone’s exact role has yet to be determined, since it is entirely redacted from the Mueller Report and his trial is still pending.

But if Stone coordinated the release of emails, then certainly he colluded/cooperated with WikiLeaks. And by extension, if Russia stole the emails, and WikiLeaks and Stone coordinated the release, then the three parties all cooperated/colluded to interfere in the election by releasing stolen emails. If this was the case, Mueller’s Report should say so. (Again, we can’t tell because the entire section is redacted.)

The lesson here, for future politicians hoping, like Trump, to benefit from foreign election interference: put enough intermediaries between yourself and the bad guys to give yourself plausible deniability, and make sure most of the criminal acts occur outside the U.S.

But does it meet the definition of “criminal conspiracy.” Mueller, says that this would require “an agreement, either expressed or tacit.” And because of the intermediaries this can’t be proven. It might be proven that Russia conspired with WikiLeaks (in supplying the stolen emails), and then Stone conspired with WikiLeaks (in releasing the stolen emails). But with WikiLeaks as a go-between, its unlikely that it can be proven that the Trump campaign coordinated with Russia on one single “criminal act.”

This may seem like an unimportant semantic difference, but that’s the box that Mueller built around his investigation. Clearly it appears that the groups coordinated/colluded, but criminal conspiracy? It can’t be proven.

The lesson here, for future politicians hoping, like Trump, to benefit from foreign election interference: put enough intermediaries between yourself and the bad guys to give yourself plausible deniability, and make sure most of the criminal acts occur in countries which the U.S. Department of Justice can’t investigate.

Conspiracy or Collusion? We can’t tell from the Mueller Report, and Stone’s trial hasn’t happened yet, so the important details are still unknown. If Stone coordinated the release of emails, then that would be cooperation/collusion. But criminal conspiracy was too high a bar for Mueller to clear.

Trump’s written answers to Mueller’s questions suggest collusion

I’ve written at length about this here, but the summary is this: despite his frequent assertions that there was “no obstruction, no collusion,” under oath, Trump would not say there was no collusion.

Mueller asked him in writing about the events above, and the majority of his answers were: “I don’t remember.” Mueller asked about some of the most important and memorable events of the campaign, like conversations with Stone and Manafort, and if/when Trump heard/knew about Russian email hacking. And also the events of October 7, 2016 — the day the Access Hollywood tape was released, in which Trump casually talked about committing sexual assault. Trump’s answer, remarkably, to all of these questions, was “I don’t recall/remember.”

There is ample evidence and clear suggestion of coordination and collusion between Russia and the Trump campaign. But by limiting his investigation to criminal conspiracy, Mueller failed to draw the obvious conclusions, and failed to fulfill the purpose of his investigation — which was to uncover “links and coordination” between the Trump campaign and Russia.

One could argue that Trump is merely following his lawyers’ advice, to avoid being contradicted by many associates that have flipped and might lie against him to try to get a better deal. That might be true to some extent, but Trump evaded over 80% of the questions that Mueller asked him. (Appendix C of the report lists 75 questions to Trump. Trump ignored 19 of them and answered “I don’t recall/remember” to 42 others.)

The mere fact that he has to be concerned that everyone around him might give evidence against him is highly suggestive. This includes his lawyer Michael Cohen; his Campaign Manager, Paul Manafort; His Political Consultant/Opposition Researcher, Roger Stone; his National Security Advisor, Michael Flynn, and several other members of his campaign.

Also, there is the fact that he has to deny recollection of almost everything — that he is at risk of contradiction in nearly everything he might say. All of this suggests, at the least, that something bad happened. At the very least, as noted below, Mueller should have pursued these questions further.

Conspiracy or Collusion? Nothing can be proven here because Trump avoided 80% of Mueller’s questions, and Mueller let it go. But if Trump and his team felt they had to avoid answering 80% of Mueller’s questions, there is probably something bad in there.

Conspiracy or Collusion?

In summary, there is ample evidence and clear suggestion of coordination and collusion between Russia and the Trump campaign. But by limiting his investigation to criminal conspiracy, Mueller failed to draw the obvious conclusions, and failed to fulfill the purpose of his investigation — which was to uncover “links and coordination.”

II. Obstruction

Much has been written about Trump’s obstructive acts, as described by Mueller. Mueller investigated 10 events which could possibly lead to charges of obstruction against the president. But Mueller noted that the Office of the Special Counsel has a policy against bringing charges against a president while in office. Therefore, though obstruction is apparent in several of these cases, Trump has not been charged. Mueller’s mistake here was in failing to clearly state his conclusions. Not doing so allowed Attorney General William Barr, Trump’s supporters, and Trump himself to fill this vacuum with their own erroneous assertions that there was no evidence of obstruction.

Mueller decided ahead of time, it wouldn’t be “fair” to Trump to make any judgement about criminal conduct. But this was precisely Mueller’s job. Congress and the American public expected him to draw clear conclusions about what happened. This was the whole point of his investigation.

As background, three things have to be true in order to conclude that criminal obstruction has occurred. There has to be:

1. An obstructive act,
2. A connection (or “nexus”) to a legal proceeding, and
3. The intent to obstruct.

All three of these appear to be present in the president’s actions in relation to six events, with some stronger than others. Note that among those who have analyzed this issue, there is not a clear consensus about which events should be prosecuted. For example, see Quinta Jurecic’s excellent analysis (with a very clear heatmap of the three criteria for each). Ms. Jurecic finds “substantial”evidence of all three criteria in four of the ten events, and that the “evidence could support” obstruction in three others.

The important matter here is that we don’t know Mueller’s ultimate conclusions on this because he didn’t make any in his report.

Mueller’s job was to uncover and expose wrongdoing, but in an exaggerated sense of “fairness,” Mueller abandoned his responsibility, and in so doing, effectively helped cover up the wrongdoing he had uncovered.

Without providing extensive analysis here, I include my list of six likely obstructive events below, and invite the reader to read the relevant details in the first 150 pages of Volume 2 of the Mueller Report, and/or the analysis by others.

Trump appears to have obstructed justice in the following events.

• Firing James Comey to stop the investigation into himself (Volume 2, pp. 62–77). Note that Mueller is less than clear in his conclusions on this matter. Yet on the surface, it appears evident that Trump fired Comey mainly to impede the investigation into Russian interference in the election and his own actions.
• Trump’s order to Donald McGahn to have the Special Counsel removed (V. 2, pp 77–90) which would have stopped or impeded the investigation into his actions.
• Trump’s orders to Jeff Sessions — to curtail the Special Counsel’s investigation, and to request that the Special Counsel only look at future election interference, and not Trump’s actions. (V. 2, pp.90–98)
• Ordering Jeff Sessions to unrecuse himself from the Russia investigation (V. 1, pp. 107 -112) This one is less strong than the others, but also seems clear in its intent to impede the Russia investigation.
• Trump’s efforts to influence Paul Manafort, to keep him from cooperating with prosecutors during his trial for financial crimes. (Volume 2, pp. 120–133)
• Michael Cohen and campaign finance violations (paying off people who had sexual affairs with Trump, in order to keep them quiet before the election.) (Volume 2, pp. 134–155)

Here, a related error by Mueller should be noted. Mueller states that often a conclusion of obstruction involves the cover-up of an underlying criminal act by the obstructor (Trump ). Mueller goes on to say (Volume 2, p. 157) that since he did not establish collusion between the Trump campaign and Russia in election interference crimes, this is not the case here.

Mueller is in error here. Trump has been implicated in an underlying crime, just not the one that was central to Mueller’s investigation. Michael Cohen was convicted of campaign finance violations for paying off two people who had sex with Trump, in order to keep them quiet before the election. Cohen has implicated Trump in directing this campaign finance violation, and provided evidence to support this.

Here, there appears to be a clear attempt at a cover-up by Trump.

Mueller’s rationale on obstruction

Mueller failure here is that he didn’t clearly state that Trump committed obstruction and would be charged — if not for the policy against prosecuting a sitting president.

Instead, his reasoning is obfuscated by two pages of dense legal verbiage in the introduction to Volume 2 (pages 1–2) of the report. Mueller first explains that under his Office’s rules, he can’t bring charges against a sitting president. Then, he explains the rationale for not drawing a conclusion, and his unclear reasoning:

“Thirdly, we considered whether to evaluate the conduct we investigated under the Justice Manual standards governing prosecution and declination decisions, but we determined not to apply an approach that could potentially result in a judgement that the President committed crimes. The threshold step under the Justice Manual standards is to assess whether a person’s conduct ‘constitutes a federal offense’ … Fairness concerns counseled against potentially reaching that judgement when no charges can be brought… An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor’s judgement (emphasis added) that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.”

Go ahead and read that again three or four times and try to unpack it. Essentially, what Mueller appears to be saying is that there are rules about making this kind of judgement, and it involves assessing whether that person committed a federal offense. But in this case, it would be unfair to make that assessment/judgement when they had already determined that they couldn’t bring charges against the president, because it wouldn’t give Trump the opportunity to “clear his name.” And so, they decided ahead of time, it wouldn’t be “fair” to Trump to make any judgement about criminal conduct.

Here, Mueller makes a very unclear justification for making a very unclear conclusion about obstruction.

But making conclusions was precisely Mueller’s job. Congress and the American public expected him to draw clear conclusions about what happened and what should be done. This was the whole point of his investigation. His job was to uncover and expose wrongdoing, but in an exaggerated sense of “fairness,” Mueller abandoned his responsibility. In so doing, Mueller effectively helped cover up the wrongdoing he had uncovered.

By concealing his non-conclusions in 800 mind-numbing words of dense legalese, Mueller has ironically covered up the crimes he was tasked with uncovering.

Allowing for Mueller’s “fairness” argument, there are certainly ways that Mueller could have stated his conclusions without making the “judgement” that he disliked. Simply by saying — very boldly, prominently, and without the clutter of hundreds of words of obfuscation — “In these specific six (or seven) instances, there is sufficient evidence to refer the matter for a trial for obstruction of justice. However, as we have noted, the Office of the Special Counsel prohibits us from doing so, and so we submit this report and leave the next steps to Congress.”

Something similar to this — if stated prominently, and not beneath a pile of legalese — would have communicated his conclusions (which was his job) without making a declaratory “ judgement.”

Instead, by concealing his non-conclusions in 800 mind-numbing words of dense legalese, Mueller has ironically covered up the crimes he was tasked with uncovering.

After spending nearly two years gathering evidence that shows criminal conduct, Mueller uses vague and indirect language to weakly conclude: the evidence makes it difficult for him to say that criminal conduct didn’t occur.

By not stating that Trump had committed obstructive acts, Mueller has thus far enabled Trump to get away with obstruction of justice. Though obstruction is apparent in several circumstances, Mueller had predetermined to not make the judgement that the president committed obstruction.

We are left with this very unclear conclusion from Mueller about obstruction:

“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.”

Instead of clearly stating that the evidence indicates that criminal conduct occurred, Mueller states that the evidence “presents difficult issues” that “prevent us from conclusively determining that no criminal conduct occurred.”

After spending nearly two years gathering evidence that shows criminal conduct, Mueller uses vague and indirect language to state, weakly: the evidence makes it difficult for him to say that criminal conduct didn’t occur.

This conclusion (its difficult to say that there weren’t crimes) is very different from what the evidence suggests (there were crimes).

Mueller says that, according to the Constitution, there is another process in place for prosecuting a president (impeachment). Yet by falling short of making clear conclusions, or at least indicating that these matters can and should be prosecuted through the impeachment process, Mueller gave a very unclear and ambiguous message about obstruction.

Mueller’s conclusion (its difficult to say that there weren’t crimes) is very different from what the evidence suggests (there were crimes).

In the end, this allowed the Attorney General to fill the void and do what Mueller was afraid to do, making a firm (though inaccurate) conclusory statement that “the evidence developed by the Special Counsel is not sufficient to establish that the President committed an obstruction of justice offense.” And of course, it allowed the president to continue to state his self-serving conclusions: “No collusion, no obstruction.”

By failing to state clear conclusions, Mueller not only failed to fulfill his duty, but also allowed the narrative to be hijacked and replaced by Barr’s and Trump’s inaccurate narrative.

III. Questioning the president

Here Mueller failed again. Mueller had the power to, but didn’t get a face-to-face interview with Trump. Mueller submitted written answers to Trump, but Trump avoided answering over 80% of them. Thus, Mueller failed to investigate the main subject of his investigation.

Trump ignored or responded, “I don’t recall/remember,” to over 80% of the questions from Mueller. This itself demands further investigation. But again, Mueller failed to do so.

Since U.S. intelligence agencies had already unanimously concluded that Russia had interfered in the 2016 election, that wasn’t really the main purpose of Mueller’s investigation. He was to look at the details of Russian interference, and any links between Russia and the Trump campaign. It is fair to say, then, that along with Russia, the main subject of his investigation was Trump himself.

Mueller settled for what could be remembered as the worst investigative questioning ever.

Mueller had no power to subpoena Russians, so that leaves one main focus of his investigation that he had the power to compel. Trump himself. And if Mueller’s primary job was to investigate Trump, then the one person that he shouldn’t fail to interview was Trump. Mueller clearly failed in this regard. He had the power to subpoena him, and compel Trump to answer questions, but he didn’t.

Instead, Mueller settled for what could be remembered as the worst investigative questioning ever.

An investigator who has the power to, but doesn’t question the subject of his investigation has failed.

Mueller asked Trump 75 questions in writing. Trump ignored 19 of them, and answered, “I don’t recall/remember” to 42 more. (Appendix C of Mueller Report) Trump avoided over 80% of Mueller’s questions. Trump ignored an entire section of 12 questions. This alone should have been sufficient reason to question Trump further.

An investigator who has the power to, but doesn’t question the subject of his investigation has failed. Moreover, if that subject avoids 80% of the investigator’s questions and the investigator leaves it at that — without pursuing those issues further — he hasn’t done his job. Similarly, if an investigator requests written answers to 75 questions, and the subject ignores an entire section of 12 of those questions, it is the investigators job to get answers to that set of questions. Mueller didn’t.

Questioning the investigator

Mueller is scheduled to testify Wednesday, July 24th before two Congressional committees.

Congress should ask him 1) If all the individual coordinated events (described above) suggest that coordination occurred between Russia and the Trump campaign; 2) If Trump were not President, would he have prosecuted him? And 3) why he did not adequately question/investigate the main subject of his investigation.

If Mueller had done his job well, he would have effectively addressed these three questions in his investigation and report.