The saga of Donald Trump’s criminal behavior has played out over years. It’s an infection we haven’t taken care of, and even though it’s grown, we’ve over time adjusted to the pain and made excuses for why it wasn’t so urgent to see a doctor. Today the doctor gave us the bad news all at once. In this way, the Mueller report is essentially a booster shot for the public, a 400-page injection of three years of the most toxic behavior from a political leader in American history. To extend that metaphor, here’s the question we’re left with: Is this a lethal dose, an anti-viral, or a vaccination?
The fairly heavily redacted 400-page Mueller report makes one thing quite clear: It can be hard for even the most talented prosecutors to prove even the most obvious crimes. The report lays out stunning new information about not only Trump’s attempts to obstruct justice—which we expected—but about the conspiracy (“collusion”) to interfere in the election and further Russian contacts. (For instance, Putin apparently tried to call Trump at 3 a.m. on election night, but a government representative only managed to reach 26-year-old Trump communications lead and former lacrosse player Hope Hicks, who didn’t know what to make of it.)
We’ll get to more of this in a second, but we should acknowledge the report’s overall effect: Over the course of what’s essentially a novel, Mueller’s team makes clear in striking and sometimes graphic detail the depth and seriousness of the crisis we’ve lived and breathed so long it feels natural. It’s like an old joke: Two young fish are swimming in the sea, and an old fish passes them. “Morning, boys!” says the old fish. “How’s the water?” The two young fish keep swimming along, then one looks to the other and asks, “What the hell is water?”
So it’s kind of like that, but there’s lead in the water.
Mueller not only reminded us of the dozens and dozens of shameless ethical breaches, abuses of power, near-crimes, actual crimes, and treasonous behavior Trump has gladly performed for us in public, he also brought to bear so much new information and evidence it will take a long time to sort this thing out. But his words, tone, and purpose couldn’t be more clear: Trump did this. All of it. Now do something about it.
Let’s look at that “conclusion” Barr made famous in his initial letter summarizing the report. Here’s the partial sentence Barr quoted: “The investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”
And here’s that sentence in full:
The social media campaign and the GRU hacking operations coincided with a series ofcontacts between Trump Campaign officials and individuals with ties to the Russian government. The Office investigated whether those contacts reflected or resulted in the Campaign conspiring or coordinating with Russia in its election-interference activities. Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in itselection interference activities.
In other words, there is collusion—there’s just not enough evidence to establish a criminal conspiracy between the Trump campaign and the Russian government. No wonder Barr cut the rest of that paragraph. Mueller makes the distinction between collusion and conspiracy clear:
“But 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 criminal law. For those reasons, the Office’s focus in analyzing questions of joint criminal liability was on conspiracy as defined in federal law…. The Office considered in particular whether contacts between Trump Campaign officials and Russia-linked individuals could trigger liability for the crime ofconspiracy-either under statutes that have their own conspiracy language (e.g., 18 U.S.C. §§ 1349, 195l(a)), or under the general conspiracy statute (18 U.S.C. § 371).
And though Mueller says his investigation didn’t establish those crimes, the crimes are actually really narrow (emphasis mine): ”[t]he investigation did not identify evidence that any Campaign official or associate knowingly and intentionally participated in the conspiracy to defraud that the Office charged, namely, the active-measures conspiracy described [in the report].” We’ll get there later. First:
YES CRIMINAL COVER-UP!
On page 10, Mueller shuts down anyone attempting to argue the investigation found Trump innocent of crimes. Instead, Mueller actually suggests—in stark terms—he found evidence of a massive cover-up of a crime:
In other words, Mueller knows he couldn’t get all the evidence, and some of that evidence was intentionally deleted. They got away with it.
Got away with what?
My emphasis earlier was on how Mueller says he couldn’t prosecute Trump associates with specific crimes “that the Office charged.” He’s referencing specifically the computer crimes with which he charged Russian government intelligence agents over a year ago. In other words, Mueller told us the law wasn’t ready for Trump. So even if what Trump did was heinous and anti-Democratic, and even if it should be criminal, Mueller couldn’t find evidence that he or members of his campaign knowingly participated in the only real crime of the interference operation: The actual computer breach and theft. That was the GRU.
The rest of the conspiracy, it seems, was non-criminal because it hinged on Wikileaks and its status as a knowing publisher of stolen information, but not a thief itself. In a heavily redacted section clearly relating to Wikileaks and its connection to the ongoing matter of Roger Stone’s indictment, the report specifically mentions First Amendment considerations as a reason to decline to prosecute.
Further, there’s even previously undisclosed evidence that Trump did in fact know about and participated in conversations regarding the email dumps. Two passages:
Of course, it’s possible the upcoming interrogations of Assange might yield more information. Note that in the Assange indictment, the DOJ charged him with actually participating in computer crimes, not publishing stolen material.
And what if I told you Mueller had reason suspect the pee tape is real?
For real. Mueller says a Russian contacted Michael Cohen on October 30, 2016—two days after Comey announced the renewed investigation into Clinton’s emails, and three days after Trump paid off Stormy Daniels—to inform him they’d “stopped the flow of tapes from Russia.”
The Crocus Group is owned by the Agalarov family, who allegedly offered to set Trump up with prostitutes on that fateful November 2013 night at the Moscow Ritz Carlton. The Russian intermediary here, of course, told Mueller in an interview that he’d heard the tapes were fake. But why call Cohen to tell him not to worry about fake tapes? This also implies the threat of blackmail, of course, as well as the existence of other earlier conversations now possibly lost to the sands of time.
The obstruction section contains the most new information. We learned, for instance, that Trump tried to fire then-Attorney General Jeff Sessions more than once; that Rod Rosenstein initially objected to Trump using his letter to fire Comey, but went along with it anyway; that Trump asked multiple people—and probably everyone he’s ever known—to lie for him; that Michael Cohen based his false congressional testimony on earlier talking points he’d gone over with Trump; that Cohen was in constant contact with Trump’s personal lawyer when he submitted his testimony; and that same lawyer declined to speak with Mueller about it, citing privileged communications.
We also learned Trump asked a senior aide to draft a statement affirming he didn’t know Mike Flynn had spoken to Russian Ambassador Sergei Kislyak about sanctions, a request the aide refused to carry out in part because she wasn’t sure if that was the truth. (We also saw circumstantial evidence that strongly suggests Trump did in fact know.)
Upon Trump’s request, Sessions once offered Trump a letter of resignation, which Trump rejected but then kept, despite protestations from senior staff that it looked like he was using it as leverage over Sessions. After Trump’s subsequent attempts to get Sessions to interfere with the Mueller investigation, Sessions had a resignation letter in his pocket whenever he walked into the White House.
Trump also dictated his son’s statement about the Trump Tower meeting.
Trump also tried to get Mike Flynn to violate the terms of his termination of the joint defense agreement he had with Trump.
Trump also drafted a ridiculous statement for Sessions to read publicly in announcing he’d violate his recusal and regain control of the Mueller investigation: “I know that I recused myself from certain things having to do with specific areas. But our POTUS is being treated very unfairly. He shouldn’t have a Special Prosecutor/Counsel b/c he hasn’t done anything wrong. I was on the campaign w/ him for nine months, there were no Russians involved with him. I know it for a fact b/c I was there. He didn’t do anything wrong except he ran the greatest campaign in American history.”
Trump also tried through multiple channels to fire Mueller and curtail the investigation.
It goes on and on and on. But the conclusion here is the key.
Attorney General William Barr’s initial summary letter is looking more and more disgraceful. He stepped in and declared he didn’t think the President should be charged with obstruction, but read the report’s final paragraph:
Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President’s conduct. The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.
Mueller didn’t want Barr to rule on this. He never asked Barr to rule on it. He wanted this report to go to Congress and to the people, you and me, who in reading it would bristle with resentment, shame, and fear. The question Mueller leaves us with, then, is that considering he had rigid parameters within which to operate, would we be able to do more than him?
In other words, he leaves us with irony: Millions of Americans saw Bob Mueller as the superhero who could redeem them; the reality, though, is he sees us as the heroes who can redeem him. It’s no accident he concluded a 20-page breakdown on whether and how Trump could face punishment for obstruction of justice with this citation:
And the protection of the criminal justice system from corrupt acts by any person—including the President—accords with the fundamental principle of our government that ”[n]o [person] in the country is so high that he is above the law.”
The cases cited? “United States v. Lee, I06 U.S. 196, 220 (1882); see also Clinton v. Jones, 520 U.S. at 697; United States v. Nixon, supra.