The Distorted Mueller Report

News Media, Political Framing Have Obscured the Report’s Legal and Factual Content

I. Background

Richard Nixon resigned the presidency on August 9, 1974 facing certain impeachment in the house and virtually certain conviction in the Senate. Nixon had been engaged in a cover up of a petty burglary of offices of the Democratic Party. The President himself neither directed nor was personally involved with the burglary itself, but was surrounded by officials who had funded and orchestrated the underlying crime. Had Nixon been impeached, it would have been for obstruction of justice, using federal officials to forestall the investigation into the burglary and its connection to the Nixon campaign.

President Clinton was impeached on December 19, 1998 by the House of Representatives for perjury to a grand jury and obstruction of justice relating to an underlying investigation into Clinton’s affair with Monica Lewinsky. Special Counsel Kenneth Starr had been appointed to investigate the Clintons’ involvement in issuing illegal loans and other alleged criminal wrongdoing in the Whitewater land deal. After multiple investigations, insufficient evidence was found linking the Clintons to the criminal activities of others involved in the project.

The Special Counsel’s investigation into President Clinton broadened in scope to encompass his extramarital affair with a White House intern and ultimately his counterfactual denials of the affair formed the basis for impeachment proceedings. The Starr investigation took place over four years and cost approximately $40 million in taxpayer funds. The President was only charged with perjury and obstruction of justice. No underlying crime was discovered by the Special Counsel’s office, and the full unredacted report was made public. In October 1998, the Starr Report was the #1 New York Times best-seller in paperback nonfiction. Clinton was not convicted in the Senate.

In the elections following the impeachment of President Clinton, Republicans retained control of the House, with a net loss of two seats, won the presidency, and tied for control of the Senate, effectively retaining control through the Vice President. This set the stage for six years of uninterrupted Republican control of all political branches of government.

In both of these most recent cases of impeachment, or potential impeachment, no underlying crime was provably linked to the president himself. In both of these cases, the basis for impeachment was a charge of obstruction of justice relating to a cover up.

In Nixon’s case, covering up a burglary orchestrated by his campaign associates, in Clinton’s covering up an illicit, but legal personal affair.

In light of this historical background, the public reaction we are currently seeing to the Mueller Report should give us all pause. Deputy Attorney General Rod Rosenstein appointed Robert S. Mueller III as special counsel to oversee the existing FBI counterintelligence investigation into Russian interference in the 2016 election. It is worth noting here that President Trump appointed Rod Rosenstein in 2017, who was previously the longest-serving U.S. Attorney and a lifelong member of the Republican Party. Robert Mueller is likewise registered Republican and was appointed by George W. Bush as director of the FBI, serving from 2001 to 2013.

Mueller’s appointment followed President Trump’s firing of FBI Director James Comey and public declaration that his rationale for the firing was related to concerns about the Russia investigation. Trump seemed to imply that he wanted the investigation into Russian involvement and potential connections to the Trump campaign stopped. Two days after firing the FBI Director, Trump told NBC News, “In fact, when I decided to just do it, I said to myself, I said, ‘You know, this Russia thing with Trump and Russia is a made up story.’”

Given the scope of the existing counterintelligence investigation, and the concerns raised by both Republican and Democratic lawmakers concerning Trump’s motivation for firing James Comey, the Special Counsel was also tasked with investigating Russian links to, and potential coordination with the Trump Campaign. Within this ambit, Mueller was given authority to investigate potential presidential obstruction of justice relating to the investigation.

Originally met with bipartisan support, the Mueller investigation was subject to escalating Republican attacks as the investigators secured evidence and issued indictments against members of the Trump campaign. The President himself relentlessly called into question the credibility of the investigation and the personal credibility of the Special Counsel. The President attempted to portray the investigation as a “partisan witch hunt,” despite none of the supervising officials at the Justice Department having any links to the Democratic Party. Other prominent Republicans and right-leaning media outlets took up these talking points, building a case to discredit the Report before its eventual release.

The Special Counsel’s office concluded its investigation on March 22, 2019, and submitted the final report to Attorney General William Barr. Barr in turn submitted a four-page summary of the Report to Congress, purportedly outlining the investigation’s primary conclusions. According to Barr, the Special Counsel’s office (1) found no evidence of coordination between the Russian government and the Trump campaign to influence the results of the 2016 election (2) did not make a traditional prosecutorial judgment in the matter of presidential obstruction of justice, leaving such a judgment to the Attorney General’s office. The Attorney General asserted that his office did not find sufficient evidence of obstruction.

Since the conclusion of the investigation, Republicans have repeatedly emphasized the lack of “collusion” found by the Special Counsel, and have taken the Attorney General’s assessment as to the obstruction issue to mean no evidence of obstruction was found. The Republicans view the conclusion of the Report as a “total exoneration of the President.”

II. The Distorted Report

The text of the Mueller Report does not represent anything approximating a “total exoneration of the President.” In fact, the Report makes a convincing case for impeachment proceedings in light of both recent impeachment precedents. The presidential conduct unearthed by the Special Counsel’s office far exceeds the wrongdoing President Clinton, and arguably reflects a comparable level of culpability to Nixon. The media coverage and the partisan messaging surrounding the investigation have distorted the factual findings and legal ramifications of the Report.

There are four major reasons why the framing of the Report has damagingly distorted its implications.

First, the sheer volume of the Report and the necessary familiarity with legal and constitutional principles required to understand the meaning of Mueller’s findings. It is difficult to report in journalistic form a nuanced and contextual case against the President.

If something requires too much explication, it is dismissed as contortionist.

It is difficult to explain to an unsophisticated news consumer that Justice Department guidelines preclude criminal charges brought against the President, and that the Special Counsel interpreted his mandate according to these guidelines. I.e., even if sufficient evidence of obstruction were found, the Special Counsel interpreted his constitutional responsibility to leave a determination of how to proceed to Congress.

It is easier to accept a simple narrative than a complex one. The public expects “yes” or “no” answers, and given Justice Department policy and the unique problems presented constitutionally for criminal cases against the Executive, that was never something the Special Counsel was going to be able to supply. Due to the assessment of the Report by the Attorney General a month prior to its release, which seemingly supplied a “no” answer to both questions of criminality, much of the public had a prefigured set of expectations before the Report was issued. It is easy to take no further simple, explosive, undiscovered information as confirmation of the established, albeit compromised interpretation.

Second, distortion has arisen from the obsessive coverage of the investigation while it was being undertaken and the filling of airspace with speculation. Much of what was in the Mueller Report was confirmation of previously reported, and quite damning pieces of slow burning evidence against the administration. Members of the media, and some in the political establishment untrained in law or legal procedure were willing to project conclusions on the Report that were simply not within the reasonable framework of a counterintelligence and criminal investigation conducted by the Justice Department. Those people expected that the Report would reach conclusions based on those pieces of information that were not within its jurisdiction to reach. Beginning with the meaningless concept of “collusion,” with which the President made a cudgel against Mueller for failing to find something that legally speaking, does not exist. Expectations were set that the Special Counsel’s office would make a pronouncement, rather than lay out a factual basis for further oversight.

Third, the heuristics of party membership led to skepticism and overemphasis on the investigation and its projected conclusion. It goes without saying that because of the allegiances and proximity to power between Trump, the Republican Party, and Republican-identified voters, the Report was always going to be subject to post hoc rationalization. Even if the Report had drawn a direct connection between bad Russian actors and the President himself, Republicans would have dismissed it as a fabrication (which they had been preparing to do for months). Alternatively, the Republicans would unfailingly view anything short of that as a “total exoneration.”

But distorting heuristics were at play in the Democratic interpretation of the Report as well, and this will lead into the fourth basis for distortion. Democrats have incorporated the unsophisticated interpretations of the public into their assessment of the need for, and possibility of successfully mounting impeachment proceedings. Rather than a situated historical event, or a means of preserving constitutional integrity in the presidential office, Democrats have interpreted the Mueller Report along lines of political strategy. They have made poor political strategy choices in this regard.

Fourth, the sliding scale of criminality between the two groupings of wrongdoing Mueller investigated diminished the importance of the obstruction inquiry. As I mentioned in the first section of this article, both the previous cases of historically recent impeachment proceedings were predicated on an obstruction of justice charge without an underlying crime to which the president was personally connected. In the case of Watergate it was a burglary. In this case, the potential underlying crime was conspiracy to defraud the United States, or computer intrusion-conspiracy (not “collusion,” or “coordination”).

In the public imagination, the “collusion” or “coordination” crime meant a partnership between President Trump and the Russian government to deliberately steal an election. With this framing, the “collusion” issue looks like the “real” crime, while the obstruction issue looks like a footnote of little importance. If the first is not found, the second can easily be falsely framed as politicized or partisan since the underlying “crime” (which is not actually a crime in the United States code) would be the thing on which obstruction was predicated. As we can clearly see with the Nixon and Clinton examples, this assumption is patently incorrect. Trump could be seen in the same light as Nixon on these facts, unconnected personally to an underlying crime, but still personally invested, with corrupt intent, in forestalling an investigation into him and his campaign.

III. The Case for Impeachment

Understanding how the Report was anchored to certain inappropriate expectations and fit within a framework of rationalization leading to inevitable distortion, we should take a clean look at what the Special Counsel’s office actually found, and what it did not find.

Mueller was tasked with investigating “‘the Russian government’s efforts to interfere in the 2016 presidential election,’ including any links or coordination between the Russian government and individuals associated with the Trump Campaign.” (Vol. 1, p. 1) The Special Counsel was asked to investigate not only the popularized questions of “collusion” and “obstruction,” but also relevant connections between the Trump campaign and Russia. The primary purpose was to ascertain Russian involvement in the election and relatedly, potentially compromising influence subsequent to the election.

As an overview, as to the subjects of Russian interference, coordination, and linkages to the Trump campaign the Special Counsel’s office found:

(1) “Sweeping and systematic” Russian interference in the 2016 election;

(2) Significant ties between the Trump campaign, Trump himself, and the Russian government;

(3) Invitations by the Trump campaign, and Trump himself, to Russia to interfere in the election through illegal hacking and theft of political information;

(4) Attempts by members of the Trump campaign, including Donald Trump Jr., to secure illegally obtained materials by Russian operatives;

(5) Behaviors by Trump and the Trump campaign that rewarded the interference of Russian state actors in the election;

(6) Potentially, though much of the material evidence is redacted in the current version of the Report, coordination between the Trump campaign and WikiLeaks to disseminate politically damaging information illegally obtained by Russian operatives.

(7) Deliberate failure to report known instances of illegal foreign interference to law enforcement officials.

As to the subjects of obstruction of justice:

(1) The Special Counsel’s office proceeded under guidance from the OLC and the Justice Department precluding a criminal indictment of the President, and the Office made its prosecutorial decision on this basis, “we determined not to apply an approach that could potentially result in a judgment that the President committed crimes.” (Vol. 2, p. 2 my italics)

(2) The Special Counsel’s office determined that concerns for fairness and the integrity of the office of the president precluded even an accusation of a crime, even in an internal report by the Justice Department.

(3) The Special Counsel’s office laid out factual evidence under eleven headings that could indicate presidential obstruction of justice.

(4) The Special Counsel’s office explicitly did not issue a finding of exoneration.

With respect to the first volume of the Special Counsel’s Report, it is important to clarify that the finding of no underlying crime is misleading without context. The Special Counsel’s office interpreted its mandate to investigate “collusion” or “coordination” beneath the rubric of federal conspiracy law. Conspiracy requires “more than the two parties taking actions that were informed by or responsive to the other’s actions or interests.” (Vol. 1, p. 2) The legal bar for conspiracy is relatively high, and would require explicit agreement (a “meeting of the minds”) between the two principal parties, the Trump campaign and Russian state actors, to engage in some form of illegal activity.

In other words, the Special Counsel could not make a criminal determination with respect to corrupt presidential actions to encourage, benefit, or shape messaging and behavior on the basis of illegal Russian activity that fell short of explicit agreement. The decision not to make a determination does not mean there was no evidence for conspiracy.

The Special Counsel also could not make a criminal determination with respect to Russian influence and quid pro quo so long as those interests, exchanges, and benefits remained indirect or unspoken. And the evidence for all of these things, falling just short of a cognizable finding of conspiracy, is abundant in the report. “No collusion,” is technically correct both insofar as collusion is not actually a crime, and that conspiracy requires direct contact, assent, and actions in furtherance of a crime. Even attempted conspiracy, which appears to have occurred in multiple cases throughout the Report, is not enough to establish criminality. The decision not to prosecute represents a lacuna in the evidence sufficient enough to create uncertainty as to whether a conviction could be obtained based on a high standard of “beyond a reasonable doubt.” It does not indicate that extraordinary evidence against the President and his associates was not found. It clearly was.

The second volume of the Report deals with the obstruction of justice portion of the investigation. The misleading nature of Barr and Trump’s assertions of exoneration is even more egregious here. The Special Counsel takes pains to point out that from the outset, no matter the evidence gathered, no matter how blatant, due to Justice Department guidance, Mueller would not under any circumstances reach a finding of criminal obstruction. The Special Counsel begins the inquiry by plainly stating that the second volume will lay out a factual account without a prosecutorial determination. The obstruction inquiry was directed with an eye only toward establishing a factual record, and reaching a determination of innocence if the factual record supported it. The only determination the Special Counsel would have reached, had the evidence suggested it, would have been a finding of exoneration, and three times the Report explicitly says the investigation did not result in exoneration.

Under no possible torturing of the facts would anyone who read the Report be able to credibly say that the Special Counsel found “no obstruction.”

Despite Barr’s assertions, the Report nowhere leaves a determination of obstruction to the Attorney General. Mueller did not lay out the factual record for the Attorney General to apply his own legal judgment to make a prosecutorial decision. Under Justice Department guidance, the Attorney General would also be precluded from making such a determination with respect to the President’s criminality. Barr led the public to believe that in his consideration of the evidence, a case for obstruction could not be made. This is not even marginally supported by the Report. Laying out the factual record for potential obstruction, explicitly declining to make an exculpatory statement concerning the President’s conduct, and pointing to Justice Departmental guidance to preclude making an accusation of criminal conduct against the President means that the obstruction evidence would be useful in only one scenario while Trump remains in office: Congressional impeachment proceedings.

In footnote 1091, Vol. 2, p. 178 of the Report, the Special Counsel discusses impeachment as a remedy and its distinction from criminal prosecution of a president once out of office. Though the hands of the Justice Department are tied with respect to criminal proceedings against the president, it is the duty of Congress to remove a president from office when he has demonstrated his unfitness for the position. Once removed, the President will no longer be shielded from indictment for the criminal activity widely demonstrated in the Report. The Special Counsel does not directly call for impeachment, as this is not within his ambit as a federal prosecutor, but the evidence clearly demonstrates the need for a public accounting for the President’s likely criminal conduct.

Impeachment is a political process meant to preserve the office of the President from denigration by corrupt individuals occupying it. “High Crimes and Misdemeanors” is a term of art our Constitution inherited from British common law meant to indicate serious dereliction of official duty. Impeachment does not require an underlying crime, it is a discretionary process left to Congress to hold presidential authority in check. Given historical precedent, the content of the Mueller Report exceeds the gravity of any corrupt or criminal activity of President Clinton, and is arguably on par with President Nixon.

This case represents sweeping and intentional abuses of presidential power, corrupt means of obtaining presidential power, and a willingness to engage in, even if never explicitly having the opportunity, illegal activity with the aid of a hostile foreign power. The ongoing interest in the investigation and the repetition of misperceptions and faulty expectations of the investigation’s purpose have left the impact of its findings muted. In even a marginally less polarized era in American politics, a Report this damning would engender bipartisan calls for impeachment — the only process the constitution explicitly leaves to curtail presidential corruption and abuses. Each member of Congress should be called upon to answer whether they believe the actions demonstrated in the Report are disqualifying for the office of President of the United States. That is one of their essential constitutional functions.

The Democratic Party was handed an electoral victory in 2018 in part to constrain President Trump’s corrupt use of the office to advance his own interests. Robert Mueller has handed them a roadmap to remove the President on the basis of a demonstrated willingness to disrupt the integrity of democracy for his own purposes and a systematic use of presidential power to shield himself from scrutiny by law enforcement. Contrary to an oft repeated claim, history does not bear out that impeachment will necessarily damage the party instituting the proceedings. Failing to honor a constitutional responsibility to ensure each branch of government is as free as possible from misuse and misrepresentation should not be a matter of strategic consideration.

Even entertaining political strategy, there is little reason to believe avoiding impeachment for potential electoral cost is anything more than a rationalization provided by Trump-allied members of the Republican Party to protect themselves from further scrutiny. The most obvious harm of a public hearing process, revealing to the public the extent of the President and his campaign’s wrongdoing will be to the party the President represents. Many voters will likely not read the Mueller Report, but they may watch as its contents are extracted from the investigators and the implicated, under oath, in front of congressional committees.

The evidence is clear, it is overwhelming, and much of it is public. The Mueller Report was an impeachment referral to Congress, despite the distorted public perception of its findings and its mischaracterization by faulty media analysis. It is time for the Democrats to act on the evidence it supplies.