Blog No. 217. After Mueller, What Now?

The Mueller Report has been the object of lavish attention from the media,  the president, and  his critics. And it has led predictably to renewed calls for impeachment by Democrats on Capitol Hill and numerous observers in the media. There is a plausible case to be made for impeachment, on moral, constitutional and political grounds. Yet I continue to believe that it would be a mistake unless and until evidence appears that would make likely a successful impeachment—that is, conviction by the Senate and removal from office.

That evidence needs to show misconduct sufficiently serious and indisputable to persuade at least a significant portion of the Trump base. Only then would Senate Republicans, who largely share the same base, be emboldened to act. Such evidence is not at hand and is unlikely to be uncovered by House Democrats attempting to “follow the leads” provided by the Mueller Report. Gail Collins put it succinctly in the New York Times in her weekly dialogue with Bret Stephens:

Impeachment would drive the whole country even further apart. The Republicans in the Senate would never go for it anyway. And by the time we staggered to the inevitable stalemate, it’d be well into 2020 anyway. Let’s just vote the sucker out.

Collins went on to suggest as a possible alternative, as others had, a censure of Trump. But that would also fail in the Senate and a vote by the House alone  would accomplish nothing except, perhaps, to strengthen Trump’s claim that he is a victim of a partisan attack

With or without impeachment, attention to the Report is certain to continue. Much of the post-Report debate has centered on whether the Report did or did not establish “collusion” between the Trump campaign and Russia and whether it did or did not establish an obstruction of justice by the president. The latter question also raised the issue of whether Mueller acted correctly in declining to make a “prosecutorial judgment” on the matter.

Although Trump and Attorney General William Barr claimed that the Mueller Report showed “no collusion,” Mueller was explicit and clear that collusion is not a legal term and he did not seek to establish its existence or non-existence. (Many have wondered how “collusion” came into the lexicon and the answer was supplied in a June 19, 2018 article in Lawfare. In the context of Russian interference with the 2016 election, the term was a media creation sparked in the course of coverage of the Wikileaks release of hacked emails.) Rather, Mueller focused on whether there was sufficient evidence to establish violations of federal statutes. While Mueller concluded that there was insufficient evidence to establish criminal violations, the Report did reveal an extraordinary number of connections between the campaign and Russian agents. An April 18, 2019 article in Lawfare presented a detailed analysis and concluded:

[Mueller] described in page after damning page a dramatic pattern of Russian outreach to figures close to the president, including to Trump’s campaign and his business; Mueller described receptivity to this outreach on the part of those figures; he described a positive eagerness on the part of the Trump campaign to benefit from illegal Russian activity and that of its cutouts; he described serial lies about it all. 

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This report shows that the Trump campaign was reasonably aware of the Russian efforts, at least on the hacking side. They were aware the Russians sought to help them win. They welcomed that assistance. Instead of warning the American public, they devised a public relations and campaign strategy that sought to capitalize on Russia’s illicit assistance. In other words, the Russians and the Trump campaign shared a common goal, and each side worked to achieve that goal with basic knowledge of the other side’s intention.

Nevertheless, it is unlikely that the House Democrats will find additional evidence that the talented Mueller team, with the resources it had at its disposal, was unable to uncover. While one need not accept Trump’s slur, “18 Angry Democrats,” there is no reason to doubt that the Mueller team was highly motivated. (There is one curious aspect of the investigation though that Democrats may wish to ask Mueller about when he testifies about his Report: although the Report discusses at some length the notorious June, 2016 Trump Tower meeting, it does not appear that a key architect of that meeting, Donald Trump Jr., was interviewed, let alone called to testify before the Grand Jury.)

As with collusion, it is unlikely that significant new evidence will be adduced with respect to obstruction of justice by Trump. The Mueller Report has already assembled  evidence of an obstruction of justice so compelling that the senior legal analyst of Fox News, Judge Andrew P. Napolitano, found it thoroughly persuasive.  Mueller, however, felt constrained by the long-standing position of the Department of Justice that a president cannot be indicted while in office. Mueller might still have indicated expressly that the evidence warranted indictment, but he suggested that to do so would not have been fair because, lacking an indictment and trial, the president would not have a forum in which to defend himself. That reasoning does not seem particularly persuasive since the president has the benefit of the “bully pulpit” provided by his office, the reliable support of his base and, indeed, that of his Attorney General.

The support of Attorney General Barr was made clear in his letter of March 24, 2019, in which he stated that, even apart from the constraint on indicting a sitting president, he and Deputy Attorney General Rod Rosenstein had “concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.” Barr offered little by way of analysis  in support of his conclusion, and it is worth noting that his observation was entirely gratuitous. There was no basis for his claim that the Report “leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime.” On the contrary, there is nothing in the Report, expressly or by implication, that suggests or contemplates any such determination by the Attorney General. If Mueller had recommended an indictment, Barr would have had the authority to reject the recommendation and to state the reasons for his decision, but since Mueller recommended no action, there was no reason for Barr to do or say anything. Moreover, numerous references in the Report to Congressional authority strongly suggest that if Mueller was leaving the determination of Trump’s criminal responsibility to others, it was not to Barr but to Congress.

In taking a cautious stance, Mueller may have been concerned that if he flatly charged that Trump had committed the crime of obstruction, it would have virtually compelled impeachment by the House, despite little prospect of conviction by the Senate. Among the arguments that Senate Republicans would find persuasive is the absence of proof of an underlying crime. Although it is well established that the prosecution for obstruction of justice does not require proof of an underlying crime, the absence of such proof may, as Barr asserted, bear on a defendant’s motive. In that regard, Senate Republicans are likely to seize on the Trump/Barr argument that Trump was not motivated by any desire to conceal personal wrongdoing, but that he merely viewed the investigation as a needless intrusion into his conduct of foreign affairs. Given the risk of a bitter stalemate, seriously damaging to the country, it is possible that Mueller wished to avoid going too far in forcing the House’s hand.  (As some conservatives, including Jennifer Rubin and Max Boot,  have observed, the tepid response to the Mueller Report by Capitol Hill Republicans is another milestone in the downward spiral of the Republican Party, but that is a  subject for discussion on another day.)

If Congressional inquiry into collusion and obstruction does not appear promising, House Democrats may be better advised to focus on an area left untouched by Mueller’s probe: whether Trump had or has financial ties to Russia that have influenced his attitude toward Russia and spawned his peculiar and embarrassing deference to Vladimir Putin. Mueller may have felt constrained from inquiring into such matters on the ground that they were outside the scope of his specific assignment to investigate Russian interference with the 2016 election.

House Democrats, on the other hand, are not so constrained and have shown a keen interest in obtaining Trump’s passionately concealed tax returns and in other ways exploring his financial background. That exploration will be most significant if its focus is not merely to determine whether Trump’s operations as a real estate developer were unethical or even illegal. (If Trump inflated or deflated his financial statements to suit the convenience of the moment, does it matter now? If, for example, Trump doctored his finances to obtain a loan for a possible purchase of the Buffalo Bills, will anyone care?) Financial dealings with Russians, however, are another matter. One starting point is this statement by Donald Trump Jr. in 2008:

In terms of high-end product influx into the US, Russians make up a pretty disproportionate cross-section of a lot of our assets. Say, in Dubai, and certainly with our project in SoHo, and anywhere in New York. We see a lot of money pouring in from Russia.

Curiously, the media for all their supposed hostility to Trump, have never asked him to explain his son’s statement. We need to know a great deal more about the money “pouring in” from Russia, including the extent to which it involved money-laundering or otherwise left Russian investors with financial leverage over Trump.

Significantly, though apparently unnoticed by the media, is the fact that when Mueller’s written questions to Trump covered contacts with Russia during the transition period, including the delicate issue of sanctions, and General Flynn’s conversations with Ambassador Kislyak, Trump simply ignored the questions and provided no answers. Although the Mueller Report described Trump’s answers to the questions as “incomplete,” it made no specific mention of these omissions. (See Appendix C to the Mueller Report.)

Finally, the most important aspect of the Mueller Report may be one that does not necessarily implicate wrongful actions by Trump or the Trump Campaign: the Report’s detailed account of Russia’s interference with the 2016 elections. With or without complicity of Trump and his campaign, that interference represented a major assault on American institutions and values. As the Report succinctly put it: “The Russian Government interfered in the 2016 election in sweeping and systematic fashion.” That will not come as news to anyone who has been paying attention, but the Report supports that conclusion in detailed and convincing fashion and also makes clear that Russian interference was intended to assist candidate Trump. For his part, Trump has variously attempted to dismiss or minimize Russian interference and he has never acknowledged that it was intended to support him. The media should press Trump as to whether he now accepts those conclusions of the Mueller Report.

Even more important, the question now is what can be done to prevent Russian interference in 2020?  On January 29, Director of National Intelligence, Dan Coats, testified that Russia and other foreign actors will try new techniques to interfere in the 2020 elections, building on the tactics  previously used by Russia. Various agencies of the government, including the Department of Homeland Security, have been attempting to address this crucial problem, but they have been doing so without the benefit of support or leadership from the president. That fact was made dramatically clear in a quite shocking report from the New York Times on Tuesday.  According to the Times, Kirstjen Nielsen, the former Secretary of Homeland Security, was explicitly told not to raise the subject with the president:

[I]n a meeting this year, Mick Mulvaney, the White House chief of staff, made it clear that Mr. Trump still equated any public discussion of malign Russian election activity with questions about the legitimacy of his victory. According to one senior administration official, Mr. Mulvaney said it “wasn’t a great subject and should be kept below his level.”

Even though the Department of Homeland Security has primary responsibility for civilian cyberdefense, Ms. Nielsen eventually gave up on her effort to organize a White House meeting of cabinet secretaries to coordinate a strategy to protect next year’s elections.

As a result, the issue did not gain the urgency or widespread attention that a president can command. And it meant that many Americans remain unaware of the latest versions of Russian interference.

While Democratic candidates have a cornucopia of grounds for attacking Trump, Russian interference with our elections is an issue that deserves prominent and sustained—indeed, relentless—attention. It is not only a matter of vital national security, but one that may directly affect Democrats’ own electoral prospects. It is also an issue that may have more resonance with voters than debating Trump’s collusion with Russia in 2016 and his attempts to obstruct the investigation of that conduct. That was, at least, the observation of Pulitzer Prize winning journalist Connie Schultz, who reported on the PBS NewsHour that the average voters in Ohio are “more worried about what this means for the fairness of elections in 2020.”

To the extent that Trump continues to ignore or downplay Russian interference in our elections, it will create the unavoidable inference that he is hoping that Russia will again weigh in on his behalf in 2020. That cannot be allowed to happen.