Friday, March 29, 2019

Mueller And His Investigation

On Friday, March 23, 2019, Robert Mueller finished what he was charged to do, which was a portion – not everything – of a vast, far-reaching series of investigations. He turned over a report recapping what he did, and (perhaps explicitly or implicitly) what he did not do, and what conclusions he formed from that investigation. With the submission of that report, the investigation moved out of his hands.

This report was always destined to be a letdown for its political and mass audiences. Some portion of that audience was hoping to get a secret spy story competing with Hollywood’s best. Others wanted a roll call of lawbreakers – national and international – to be brought to justice at the public docks. Still others were waiting for vindication of their political hero, at long last defeating his antagonists with a vindictive “I told you so.” In the end, none of these scripts worked out as anticipated. So what do we truly know?

1. Only a few DOJ officials have actually seen “The Mueller Report.” The rest of us have seen the “Attorney General Barr” report – Barr’s four-page personal summary of Mueller’s findings. We know what Barr says did/did not happen; we have no substantiated idea what Mueller actually found. Beyond Barr’s four pages, all else is factually unknown. Given that Mueller’s report is reputed to be greater than 300 pages long, it is perhaps a concern that Barr could properly summarize it in just 36 hours after receiving it.

2. The official narrow charge to Robert Mueller was a) to investigate whether Russia operatives interfered with our 2016 election, and if so, b) whether members of the Trump campaign conspired with them to effect that interference. If other areas of wrong-doing were discovered in the course of his investigation, he was free to follow that trail and to refer such matters over to regular DOJ offices for follow-up (as apparently happened with Michael Cohen), but such avenues were not his focus. The exception to this scope was the added question of c) did Donald Trump commit “obstruction of justice” by seeking to undermine, impede, or block Mueller’s pursuit of his investigation.

3. According to the Barr report, Mueller concluded that: a) yes, Russia did interfere. Almost three dozen indictments of Russians confirmed that conclusion; b) no definitive evidence was found that Trump campaign officials criminally conspired with the Russians to commit that interference; c) whether Trump committed “obstruction of justice” was left unanswered – with both yes/no evidence being found, the question was deferred to the Attorney General to decide to answer. Barr  has said no; whether that answer is based on the evidence, or the DOJ’s 1974 internal opinion (now policy, not law) against indicting a sitting president, is not clear. (See previous essay, “Indicting A Sitting President,” March 9, 2019, on this blogsite.)

4. Trump seized upon the Barr report as definitive, and as usual, immediately lied about the findings. Trump correctly noted that Barr’s report exonerated him with about Russian collusion, but he also claimed that it cleared him of obstruction – which it most certainly did not. Barr has said he will not prosecute Trump on that charge, but has not clarified the basis of that decision. (Always playing the victim, Trump went one step further and lied that the entire investigation was illegal, which it most certainly was not.)

5. All of this ambiguity reinforces the need to release Mueller’s full report and supportive evidence, consistent with legitimate concerns of national security and grand jury secrecy. Given Barr’s views of the laws and power applicable to the presidency, as well as his written advance judgement about the investigation, he should have recused himself from its oversight. Coming into the investigation after the fact, appointed by the President being investigated – a President who has consistently demonstrated minimal respect for the law or DOJ/FBI agencies – makes Barr a non-credible interpreter of the Mueller investigation.

6. Congress has requested a copy of the original Muller report and supporting investigative materials, stating that Barr’s summary is inadequate for proper information, assessment, and potential Congressional follow-up. In his confirmation hearing, Barr committed to sharing the full report for “transparency,” consistent with “confidentiality requirements and applicable law.” This release needs to happen. It is reasonable that a review of the extensive background materials will take some time, but “all deliberate speed” should be the priority given the degree of unhelpful speculation that arises out of the silence.

7. The troubling concern from this “conclusion” of the Mueller investigation is the seeming many loose ends and unanswered questions that remain from this process, and therefore what may come next – or need to come next.
- It has been publicly acknowledged that several Trump campaign and/or transition officials (e.g. Flynn, Don Jr., Kushner, Stone) had conversations with Russian officials. If these conversations were so innocuous and non-conspiratorial, then why did so many lie so frequently about them?
- There are several investigations and indictments over Russian interference that are in process or not yet concluded by Mueller (e.g. Flynn, Stone, Butina). What will happen to these, and who will complete these actions? Barr has provided no guidance regarding these outstanding processes.
- Clearly some investigations have been handed off to, or initiated by, various DOJ offices. These cases cover a wide range of issues beyond Mueller’s original narrow charge. It is assumed that these cases will continue, including those with “sitting president” complications. Again, the guidance or decisions will Barr make regarding these legal processes is unknown.
- There are also federal and state investigations and lawsuits regarding the defunct Trump Foundation, Trump Company real estate dealings (tax, insurance and bank fraud), Emolument Clause violations, and campaign finance violations against Trump and others. These also need to run their course. The to-do list remains long.
- What ongoing, or new, investigations are occurring within the various field offices, out of the public view, that we do not even know about?

The most disturbing thing about this end-of-investigation phase, and the assessment thereof, is this: how can a top-level FBI investigation conclude that there was no Trump campaign/Russia collusion, or no obstruction of justice regarding that investigation, yet never have interviewed the key campaign players of Don, Jr., Eric, Ivanka, and Jerod? Or, for that matter, a live interview with Trump himself? Or, since supposedly agents/prosecutors usually interview only witnesses, not the “targets” of an investigation, is a different supposition warranted?

In the meantime, as this follow-up period unfolds, House Democrats should pursue legitimate investigations of potential wrongdoing. However, they need to focus their scope towards truly primary issues, not overreach and scattershot their energies. (The Senate should be doing the same thing, but this will not happen under the blind-eye rule of Mitch McConnell.) In the meantime, Congress should remember that there is a government to run, and a citizenry to serve – all of which has been done very badly the last several years. If Democrats – or much of the country – are looking to remove Trump from being the President, impeachment is not a feasible option (unless some far more damaging and convincing evidence surfaces). It must happen at the 2020 ballot box, and simply running an anti-Trump campaign will not be sufficient to win that election.

We need to deal with facts – both from the past and those still to come – not the speculation. The presidential storm may have paused, but it is far from done. Only one of many investigations has concluded; there are legitimate and necessary other investigations that need to continue. There is still far more to come, and it ain’t over ‘till it’s over. Stay tuned.

©   2019   Randy Bell   

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