The Wild Winds of Fortune

I feel compelled to start this post with my usual disclaimer: I am not currently licensed to practice law, and have never practiced criminal law. The analysis of the report is just that, my analysis.

Before I start, I need to say two things:

• This is my reading of the Report. I have not even read the Washington Post materials that they included in their edition.
• It’s been a long time since law school, and I was never a criminal lawyer. Take my analysis with, in the words of the emcee at Woodstock, “as many grains of salt as you want.”

Today’s post centers on the first volume of the Mueller Report, the investigations of the Russian impacts on the 2016 election and possible coordination between the Russians and the Trump Campaign.

One of the questions that first arises for me is: what sort of investigation was this, anyway?

There has been some confusion in the media (looking at you, Fox News) and with both President and his conservative supporters. “No collusion!” became their rallying cry, except when for a while it was “Collusion is not a crime.”

They’re right about that: collusion is not a term with any criminal legal meaning; it’s not in the federal criminal statute and it’s not a legal term of art.  (Mueller Report, “Introduction to Volume 1,” p.2 (Report)) However, the President and his supporters did not pull the word out of the thin air. Although not used in the appointment document, in one of the subsequent memos by Rosenstein he did use the word “colluding.” (Report, p. 11 (Not to mention that “collusion” as a concept is generally understood by the public, as a result of antitrust actions in the sports world and in business.)

This may seem to be a minor point, but the whole issue has been thoroughly politicized on both sides.

The Acting Atty General’s appointment charged Mueller and team to investigate “links” and “coordination” between the Trump Campaign and Russian interests. “Like collusion, ‘coordination’ does not have a settled definition in federal criminal law.” According to the Special Counsel, coordination required tacit or express agreement between the  Russian government and the Trump campaign.  (Report, “Introduction to Volume I,” p.2. Mueller and his team were looking to see if any joint criminal activity would constitue conspiracy under federal law. And as the Report points out, simply because two entities are working towards the same end, and have conversations about it does not in and of itself mean they are engaged in a conspiracy.

This is imporant to remember: this was a criminal investigation. The rules of any criminal investigation apply. This does not mean that there was not coordination. It means that the Office of the Special Counsel did not find enough admissible evidence to warrant charging the Trump campaign with conspiracy.

In reaching the charging decisions about the interactions, the Office determined whether  someone had committed a crime that should be prosecuted under the Principles of Federal Prosecution, found in DOJ’s Justice Manual. (Report, p. 8-9, Executive Summary.) The standards found in the Justice Manual are: does the conduct constitute a federal crime; is there admissible evidence that would allow a prosecutor to obtain and sustain a conviction; and would the prosecution would serve substantial federal interest not served by other means. Justice Manual, 9-27.000 et seq.

[W]hile the investigation identified numerous links between individuals with ties to the Russian government and individuals associated with the Trump Campaign, the evidence was not sufficient to support criminal charges. 

Report, Executive Summary, p.9

This is not to say that no criminal activities occurred. The investigation did not always yield admissible evidence, or a complete picture of activities undertaken by subjects of investigation. Report, “Executive Summary,” p.10. Some individuals took the Fifth, and the team did not feel they were appropriate candidates for  immunity. ibid. Some evidence was subject to legal privilege or were held by members of the media. Some materials were deleted from electronic devices. The Office couldn’t corroborate witness statements with contemporaneous  communications. ibid.

The Office of the Special Counsel recognized the limits of their investigation:

Accordingly, while this report embodies factual and legal determinations that the Office believes to be accurate and complete to the greatest extent possible, given these identified gaps, the Office cannot rule out the possibility that the unavailable information would shed additionallight on (or cast in a new light) the events described in the report.

Report, Executive Summary, p. 10

It should also be noted that Mueller was charged with investigating matters arising from the investigation, hence the prosecutions of Michael Cohen, Paul Manafort, et al. As I go along, I will be touching on these issues more, but I thought it useful to have a framework for understanding.

I would encourage everyone interested in this pivotal issue to read the Mueller Report’s Introduction and Executive Summaries. They are only about ten pages in length, and do a good of outlining the results of the inquiry.

I am reading the Mueller Report, so you don’t have to. Not that it’s boring or difficult, but it is nearly 400 pages, not including introductions and appendices. I will be taking this in chunks — consider this my introductory post.

My first thought is that there is no way in hell that Barr read the whole report in a weekend. Even if he assigned the material to assistants, reading the report and reviewing the underlying evidence would take longer than that. Given the length of time between his press conference claiming that the report exonerated Trump and when the report was released to the public, I believe that he had not actually read the report, especially as he made a great deal of Mueller not recommending indicting the President when Mueller clearly indicates why he did not.

I am working on three assumptions:

1. Robert Mueller is an honorable man who investigated with an open mind and as responsibly as was possible.
2. Robert Mueller and his team are much better lawyers than I am — certainly very much more experienced.
3. Just because I detest someone and their behavior does not mean that they have committed a crime.

From what I have read so far, one thought keeps recurring: it is a blessing that Trump is an egomaniacal idiot who refuses advice. Yes, it has been a disaster in a great many ways, and the damage done will last for a generation. It could have been worse.

I have heard it said that we have become a Russian puppet state. I don’t believe it, even though Putin and friends have certainly disrupted not only our elections but the fabric of our social discourse. But had we had a candidate, or God forbid, a President, willing to do whatever it took and make whatever promises they needed to win, and who was more intelligent, more politically sophisticated, and more accepting of advice, we might actually be on our way to becoming a Russian puppet state.

A more politically savvy “statesman” would have welcomed — nay, insisted upon — Jeff Sessions’s recusal. A more nuanced politician would have not fired James Comey, but would have done everything to hamstring him as much as possible behind the scenes. (They certainly would have not gone on national television and given incriminating statements after the fact.) Because the White House acted guilty as all hell, seventy per cent of the general public (minus Congressional Republicans and their “base”) wanted an investigation.

A more careful politician would have exercised restraint in their dealings with the Russians. They would have not met alone in the Oval Office with the Russian ambassador. They would not have praised Vladimir Putin so effusively, or met with him or called him secretly.

All the nefarious activities would be undertaken at a remove, by middlemen who could be fired if they were found to be engaging in activities damaging to U.S. national interests. (With suitable sadness and regret, naturally.) The President would be above reproach. Let the intelligence agencies investigate; there would be nothing to tie the President to the Russians, until we were entwined arm in arm.

Any information the public got would be thrown above the transom of newspapers and other media outlets. A thoroughly scurrilous operation would blunt the effect of the leaks, by creating “leaks” of their own, seeded with just enough information while enveloping them in a cloud of falsity so as to discredit the mainstream media. (As an aside, it still impresses me how leak-free the Mueller investigation was.)

I think I need to stop for now; I’m scaring myself. There’s clearly a novel there waiting to be written (if Tom Clancy or James Patterson have not already written one).

At any rate, as Rachel Maddow is fond of saying, “Watch this space.” Although be warned, it may take a little while. As I said, it is a nearly 400 page report.