Mueller Report – The Road to Impeachment?

ARTICLES - 26 April 2019

By Soli Özel

The "Report on the Investigation into Russian Interference in the 2016 Presidential Election" prepared by Special Counsel Robert Mueller III and his team is a meticulously crafted legal document that chose to ground its findings and recommendations in a very conservative reading of the law. The narrative of the Report exposes an administration in disarray that has already been depicted in a number of sensational books. The general public has worried about the relationship between Trump administration’s (and campaign) officials and unsavory Russians, as well as their involvement in suspicious Russian business deals. The response of these officials has had, at best, only a very licentious relation to truth.

The President, who answered Mueller’s questions in writing and refused to be interviewed in person, asserts more than 30 times that he does not remember or recollect a specific event. The Report also shows that the President sought to take unlawful action to oppose Mueller’s inquest, but that he was prevented from doing so because his subordinates chose not to follow his orders for fear of breaking the law or potential self-incrimination. Yet some of the most outrageous assertions of the Steele Report, prepared by a former MI6 agent, have either been disproved or were unsubstantiated.

10% of the published text was drafted by Attorney General William Barr, to whom Mueller submitted his report. Both in his initial four-page letter addressed to the Congressional leaders and, more importantly, in his press conference interpreting the Report’s findings before anyone had had a chance to read the document, Barr presented a partisan perspective that defended the President’s record and argued that the Report absolved him fully from both "collusion" and "obstruction of justice" charges. Barr’s partisanship was somewhat balanced by the writing of the report, which maintained its integrity, although congressional Democrats continue to demande seeing the full text.

The Report must also be evaluated in the political context of the United States. It is as much a political document as it is a legal one. It comes out in a violently contentious political environment, and Mueller, a former Deputy Attorney General and FBI Director, displays his consciousness of this fact throughout. The report self-consciously proclaims a commitment to the letter of the law, interpreted in a way that protects the Executive despite the authors’ misgivings, based on manifest evidence of malfeasance.

The roots of the Report lay in the discovery that the Russian Government was interfering in the 2016 Presidential elections. It led to an FBI investigation, which, through a complicated concatenation of events, led to the commissioning of the Mueller investigation, which has now produced two volumes and 448-pages.

Collusion

The first Volume deals with the scope and mechanisms of the Russian intervention that favored a Donald Trump win. It investigates whether or not there was "collusion" between the Russian agencies and the Trump Campaign. The Report establishes that a private Russian company, Internet Research Agency (IRA), and the Russian Federation’s Intelligence Directorate of the General Staff (GRU) actively interfered with and exploited the vulnerabilities of the electoral process. These two organizations also benefited from the greed of social media companies such as Facebook, which turned a blind eye to the stark evidence of manipulation accumulating before their eyes.

The Russian goal was to block the victory of Hillary Clinton at all costs during the primaries and the General election, and to secure a victory for Donald Trump. IRA manipulated social media through fake accounts and reached millions of American citizens. Senate investigations concluded that IRA posts on Instagram received 187 million engagements and its posts on Facebook 77 million. GRU’s task was to hack the accounts of the Democratic National Committee (DNC) and the Democratic Congressional Campaign Committee (DCCC) as well as "individuals and entities involved in the administration of these elections" according to the Report. By mid-June GRU started posting the stolen documents. It also made use of the declared antipathy of Wikileaks founder Julian Assange for Hillary Clinton by passing on stolen material to the organization. Wikileaks published what it received from GRU: Clinton’s mails in March and stolen DNC material in July. This was the period when candidate Trump was declaring on every occasion his love for Wikileaks and asking them to bring in more material.

The Report does establish that the Trump campaign was aware of what the Russians were doing and was perfectly willing to benefit from their hacking and disseminating activities.

The Report does establish that the Trump campaign was aware of what the Russians were doing and was perfectly willing to benefit from their hacking and disseminating activities. Yet, the Campaign denied any relations or contacts with official or private Russians. Instead of warning the public about the Russians’ insidious activities, the campaign devised a strategy that capitalized on the opportunities provided by the Russian "assistance".

The Report also exposes Trump campaign’s members who lied to Special Counsel’s office and those who violated the law in numerous different ways. Yet, using a very strict and narrow reading of the law, the Report does not definitively establish a cooperation agreement between the Russians and the Trump campaign to reach their common goal. Because collusion is not a legal term, the Counsel looked for coordination and sought to find out if there was an agreement between the parties. In the absence of such an agreement, and with the proviso that the available evidence and the hitherto undiscovered ones can still shed a new light on the case and therefore may enable prosecution after the Presidential term is over, it concludes:

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 its election interference activities.

Obstruction of Justice

The second volume addresses the comportment of the Trump administration and particularly the President himself. It investigates whether there were instances of "obstruction of justice." If one were to take the developments related to this investigation at face value, there is more than enough evidence to conclude that the President and members of his administration did obstruct justice.

Yet Mueller chose to obey the official guidance of the Office of Legal Counsel (OLC) of the Department of Justice that a sitting President could not be indicted while in office. This constitutional interpretation is influenced by the theory of the "unitary executive," which attributes extensive inherent powers to the President that include the direction of DOJ officials about who they can and cannot indict. In fact, the Report does put on record that "we were not persuaded by the argument that the President has blanket constitutional immunity to engage in acts that would corruptly obstruct justice through the exercise of otherwise-valid Article II powers". But Mueller expresses reticence because "we recognized that a federal criminal accusation against a sitting President would place burdens on the President’s capacity to govern."

The Report enumerates efforts by Trump, who values personal loyalty to himself over and above all rules, customs or conducts befitting the office he holds, to stop investigations about his close associates, to avoid defections in his camp and to derail the Mueller investigation. In his efforts to defend himself against official investigation, the President fired FBI Director James Comey; he ordered his subordinates to lie and to carry out dubious and unethical acts. His subordinates obliged on many occasions, but sometimes refused to obey the orders of the President because they feared getting involved in illegal activities.

The Report enumerates efforts by Trump, who values personal loyalty to himself over and above all rules, customs or conducts befitting the office he holds.

With so much evidence strongly suggesting at least strenuous efforts to obstruct the investigations, Mueller concludes the second volume’s findings with a somewhat enigmatic statement: "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. … Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him."

In short, Mueller decides not to prosecute but leaves the door open for a political process that would, based on available evidence, pursue the matter of obstruction of justice. That process is called impeachment. As the authors of Lawfare, a blog mainly dealing with legal issues, put it "the Office of Legal Counsel found that ruling out presidential liability for criminal conduct was not a threat to the rule of law because of the availability of impeachment as a remedy".

For the Republican Party the matter is probably closed. Very few Republican Congressmen or Senators would be willing to or dare take a position against Trump for fear of reprisals from Trump’s radical base. For the Democrats, the Report presents detailed evidence of the crime of obstruction of justice; it shows an entente between the Russians and the Trump campaign. But the Democrats are politically reluctant to open impeachment proceedings, because they fear that this might backfire in the 2020 election. Yet the unchallenged evidence presented in the Report sharply pose the essential question: "Did Donald Trump violate his constitutional obligations to the American people?"

The path open to the Democrats is to start impeachment proceedings and use these as a sword of Damocles hanging threateningly over the President’s future actions.

The path open to the Democrats is to start impeachment proceedings and use these as a sword of Damocles hanging threateningly over the President’s future actions. It is quite clear that Trump will not co-operate with congressional requests for documents and information. Under such circumstances, the Mueller Report, though it will not displace politics, will remain a standing point of reference.

A politically disturbing fact in this story though, is that hidden behind this carefully worded and legalistic document which holds its punches and does not go ahead with what the investigators must have concluded, is a campaign that was politically dishonest. It benefited from Russian meddling in elections; used the material generated by the Russians to taint the opposition and undermine the opposing candidate’s credibility; sought business deals in that country looking for points of contact at the higher echelons of Russia’s power structure and consistently and relentlessly lied about many of these activities. And all this has taken place while Russian meddling in American elections became a matter of counterintelligence and possibly national security given the institutions, procedures and election hardware that had become compromised.

The reaction among the public to the findings of the Report was mainly a shrug. Ironically the reporting by Trump’s bête noir, the much-maligned mainstream media whose coverage of the case proved accurate probably dampened the shock effect of Mueller’s findings. If anything, the general public sees the entire exercise as nothing but a political power game, is not concerned with the constitutional issues at play and continues to be alienated from a political system that looks corrupt and insensitive.

Ultimately then, the resolution of the fundamental constitutional and legal issues will be left to the rough and tumble of the political process in a highly polarized country that has a President who does not care much for legalities, norms, comity or established rules. But the legacy of the Mueller investigation and Report lies within the possibility of proceeding with a legal case and prosecuting the crimes that were insinuated, when the times and circumstances are finally propitious for such an eventuality.

Mueller Report – The Road to Impeachment?

By Soli Özel

Collusion

Obstruction of Justice

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