Blog No. 213. The Mueller Report and Seeds of a New Witch Hunt

Many Democrats and #NeverTrump Republicans may have been sorely disappointed by the Mueller report as it was summarized in the letter to Congress from Attorney General William Barr. If they are told that the report may be a blessing in disguise, they are apt to feel as Winston Churchill did when confronted with such calming advice:

By noon it was clear that the Socialists would have a majority. At luncheon my wife said to me, ‘It may well be a blessing in disguise.’ I replied, ‘At the moment it seems quite effectively disguised.’

In this case, the Mueller report may be a blessing in disguise for Democrats in that it will dampen (though doubtless not extinguish), demands within the Party for impeachment of the President. If the report had been more damning, with findings of “collusion” or obstruction of justice, it would have doubtless propelled the Party, and the nation, down the impeachment track. Yet, given the composition of the Senate, a successful impeachment—removal from office—would remain out of reach without a showing of misconduct unquestionable in its seriousness and striking in its clarity. A failed impeachment might or might not have been damaging to Trump, but it would certainly have been damaging to Democrats and the nation.

On the other hand, if the impeachment fever has abated, Democrats will be able to focus on the issues of importance to voters that were responsible for their victories in the most recent Congressional elections. Chief among them is healthcare, where Trump has celebrated a court decision invalidating all of Obamacare, including its protection of insurance for patients with pre-existing conditions. Although Republicans have no healthcare replacement in sight, the President, in a dazzling display of Trumpspeak, made the audacious claim that “The Republican Party will become “The Party of Healthcare.” Uh-huh. And Trump will ride a unicorn down Pennsylvania Avenue to mark the occasion.

Nevertheless, while focusing on healthcare and other issues, Democrats cannot be expected to ignore the fact that the Barr letter raises a great many questions, some but not all of which, will be answered when the underlying Mueller report is released. Democrats are entirely justified in pressing for the release of the report sooner rather than later. And while some redaction of the report released to the public will be justified, the full report should be made available to a limited number of Congressional leaders. (To the extent that Grand Jury testimony is involved, a court order permitting its disclosure might be obtained as it was in the Watergate matter.) Beyond the report itself, it may well be necessary for Mr. Mueller to testify about portions of its content.

As for the Barr letter, those of us who long ago found Trump unfit for office, might have hoped for decisive evidence of wrongdoing but, so far as collusion is concerned, there was reason to doubt that it would appear. In a blog earlier this month, I suggested that Ross Douthat might have had it right:

“Cohen’s testimony dovetailed with the always-more-plausible narrative in which Trump and his circle weren’t collaborators but fools and wannabes, who might have been willing to play games with spies and hackers, but who mostly just bumbled around haplessly on the sidelines.” Put another way, Trump may have been saved from breaking the law by his own and his campaign’s incompetence.

The Barr letter quoted the Mueller report as stating that “[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.” Several observers have noted that the failure to “establish” conspiracy or coordination, and to do so with the certainty required for a criminal prosecution does not necessarily imply that there was no evidence at all of illegal activity. Whether such evidence was uncovered, will have to await the unveiling of the report itself. Until that time, it is premature to suggest, as David Brooks has, that Trump is entitled to an apology from those in the media or Congress who made allegations of collusion. If Trump is truly innocent, he may have suffered a self-inflicted wound in the manner of Saddam Hussein, who denied having WMD, but managed to act so guilty that the intelligence services of the United States and our allies were convinced that he did have such weapons.

The most curious aspect of the Mueller report, as summarized by the Attorney General, was Mueller’s handling of Trump’s possible obstruction of justice:

After making a “thorough factual investigation” into these matters, the Special Counsel considered whether to evaluate the conduct under Department standards governing prosecution and declination decisions but ultimately determined not to make a traditional prosecutorial judgment. The Special Counsel therefore did not draw a conclusion – one way or the other – as to whether the examined conduct constituted obstruction. Instead, for each of the relevant actions investigated, the report sets out evidence on both sides of the question and leaves unresolved what the Special Counsel views as “difficult issues” of law and fact concerning whether the President’s actions and intent could be viewed as obstruction. The Special Counsel states that “while this report does not conclude that the President committed a crime, it also does not exonerate him.”

I have had, and continue to have, a high regard for Robert Mueller. It has seemed to me that he represented the gold standard for a Special Counsel or Independent Prosecutor, better qualified by temperament and experience than any of his predecessors. Yet by declining to exercise a “traditional prosecutorial judgment,” he appeared to abrogate the very duty which was the central reason for his appointment. There are various theories as to why Mueller acted as he did, but it is likely that at some point Congress will give him the opportunity, and perhaps the obligation, to explain his decision. In any case, it is clear that, despite Trump’s unwarranted claim to the contrary, Mueller did not “exonerate” him. Nor, for that matter, did Attorney General Barr when he found  that, after applying unspecified “principles of federal prosecution,” the evidence was “not sufficient” to establish a criminal offense,

In considering a possible impeachment, Congress would be entitled to apply its own “principles” which would not necessarily involve proof beyond a reasonable doubt. Still, it is likely that Republicans in the Senate would reach a conclusion similar to Barr’s.

Examining Trump’s relationship with Russia, there is an alternative narrative not alluded to in Barr’s letter that has little or nothing to do with Russia’s interference in the election. That narrative focuses rather on Trump’s comments about Vladimir Putin and Russia during the campaign, but even more his conduct since becoming President. Could Trump’s attitude toward Putin and Russia be attributed to financial relationships with Russian entities or individuals? Trump has flatly denied the existence of such relationships but he has never been asked, for example, to explain the statement by Donald Jr. in 2008 that “In terms of high-end product influx into the US, Russians make up a pretty disproportionate cross-section of a lot of our assets.” Barr’s letter made no reference to that area of inquiry and it is not clear whether, or to what extent Mueller pursued it. Did he, for example, ever obtain Trump’s tax returns? This is doubtless one avenue that Democrats in Congress are likely to explore in coming months.

The most disturbing development since the issuance of Barr’s letter has been the vindictive posture of Trump and some of his enablers on Capitol Hill. The New York Times reported comments by Trump to reporters during an Oval Office meeting with Prime Minister Benjamin Netanyahu of Israel:

“There are a lot of people out there that have done some very, very evil things, some bad things, I would say some treasonous things against our country,” he told reporters “And hopefully people that have done such harm to our country — we’ve gone through a period of really bad things happening — those people will certainly be looked at.

“I’ve been looking at them for a long time, and I’m saying why haven’t they been looked at? They lied to Congress, many of them, you know who they are. They’ve done so many evil things.”

Trump did not specify the persons he thought should be “looked at,” or by whom, but there is reason to believe that a man who thinks he endured a Witch Hunt for two years now has his own version of a Witch Hunt very much in mind.

On Capitol Hill, a leading candidate to be Head Witch Hunter is Senator Lindsey Graham, one-time pungent critic now a Trump golf partner and sycophant (“President Trump has been good to me in the sense that he’s allowed me in his world.”). Graham is now Chairman of the Senate Judiciary Committee and in a position to cause considerable mischief. His focus is the FBI investigation that became the Mueller probe and such topics of endless fascination to Trumpistas as the Steele Dossier and the application to the FISA Court for surveillance of a former low-level Trump campaign aide, Carter Page. Much of this territory was traversed by Devin Nunes and the House Intelligence Committee without result, but it retains a mythic symbolism for Trump and others.

As reported in the New York Times, “Graham announced that he would investigate anti-Trump bias at the F.B.I. and Justice Department and called on Mr. Barr to appoint a second special counsel to study the same issues.” Separately, Graham told Maria Bartiromo that he would “get to the bottom” of why former FBI director James Comey opened a counterintelligence investigation into the Trump campaign in 2016. Trump has already damaged the FBI and the Justice Department with his reckless attacks on those institutions, and it is most important for Attorney General Barr to repel, politely firmly, any further assaults.

In the meantime, Trump used the occasion of a political rally in Michigan to attack Adam Schiff, Chairman of the House Intelligence Committee. Schiif has been an articulate critic of the president and he is now in a position to lead the committee in the kind of investigation it refused to conduct when Republicans were in charge.  Speaking to the rally,Trump indulged in the kind of crude and petty schoolyard insult that he so much enjoys. “Little pencil-necked Adam Schiff,” Trump said of the California Democrat. “He’s got the smallest, thinnest neck I’ve ever seen. He is not a long-ball hitter.” At  the same time, Republicans on the House Intelligence Committee obediently followed their puppet master’s lead and called for Schiff to step down as Committee Chair. Schiff had obviously anticipated their attack and replied with controlled fury in a  statement that outlined in detail the grounds for his deep concern with the conduct of the Trump Campaign. It was a bravura performance, and readers who did not see it on television are invited to view it here.

House Intelligence Committee Chairman Adam Schiff. Brendan McDermid/Reuters