There is only one rational explanation for this performance. Mueller wants Congress and the public to presume that if it were not for the OLC guidance, it is very likely that he would have charged the president with obstruction — maybe not an absolute certainty, but nearly so.
And then, just in case we were too dense to understand the nods and winks, Mueller took pains to emphasize that, in our constitutional system, it is up to Congress, not federal prosecutors, to address alleged misconduct by a sitting president.
Simple as 1 + 1 + 1 = 3. Likely felony obstruction, plus inability of prosecutors to indict, plus duty of Congress to deal with presidential criminality, equals: Impeachment is the only remedy, unless congressional Democrats are saying that Donald Trump is above the law. (Good luck, Speaker Pelosi, trying to pipe down your AOC wing, to say nothing of the 2020 primary contestants, after that one.)
This should not be a surprise. We have been saying since shortly after Mueller was appointed that his investigation was not a collusion probe but an obstruction probe, and that this necessarily made it an impeachment probe.
Competing Views of Obstruction
As noted above, the apparent contradiction between Mueller and Barr is clarified by the timeline.
To grasp this, you must first understand that Mueller and his staff are completely result-oriented. If you’ve decided to act as counsel to a congressional impeachment inquiry rather than as a federal prosecutor, the objective is to get your evidence in front of Congress, with the patina of felony obstruction.
In the Nixon and Clinton situations, the rationale for impeachment was obstruction of justice. Significantly, the issue in impeachment cases is abuse of power, not courtroom guilt. Consequently, unlike a prosecutor, a counsel to a congressional impeachment committee does not need evidence strong enough to support a criminal indictment; just something reasonably close to that, enough to enable a president’s congressional opposition to find unfitness for high office.
Once you understand that, it is easy to see what happened here.
Mueller’s staff, chockablock with progressive activists, has conceptions of executive power and obstruction that are saliently different from Barr’s (and from those of conservative legal analysts who subscribe to Justice Scalia’s views on unitary executive power).
Nor does it matter that I believe any public report Mueller files about the president should be succinct. Yes, Mueller is merely a prosecutor; he is not counsel to a congressional committee conducting an impeachment investigation. The Justice Department is not supposed to speak publicly about the evidence against uncharged persons — in fact, Comey’s violation of this principle was Rosenstein’s rationale for recommending his dismissal. To my mind, either there is enough evidence to charge a crime, in which case Mueller should ask the Justice Department for permission to indict (and address the standing DOJ guidance against indicting a sitting president), or there is not, in which case Mueller should state that prosecution should be declined owing to insufficiency of the proof.
But again, what I think is beside the point. This has been a highly irregular investigation from the start. There is every reason to suspect that the same politicians who rebuked Comey for publicizing the Clinton evidence will demand full disclosure of the Trump evidence, even if Mueller recommends no criminal charges. And the new Democratic Congress will have a sound rationale for doing so: High crimes and misdemeanors need not be indictable offenses, so even if Mueller has not found prosecutable crimes, he could conceivably have found impeachable offenses.
This brings us to my 2019 caveat: If Mueller’s highly elastic warrant is to probe Trump “collusion” with the Kremlin, why would he stop if the president keeps giving him reasons to continue?
The first cabinet meeting of the new year found the president making the appalling claim that “the reason Russia was in Afghanistan” — i.e., the reason the Soviet Union invaded Afghanistan in 1979 — “was because terrorists were going into Russia.” Trump astonishingly added, “They were right to be there.”
For a guy under investigation for colluding with the Kremlin, the president’s remarks are also noteworthy because they are exactly what Putin would want Trump to say.
.. ‘Collusion’ — the Evidence
Just sticking with what we know (as if Mueller has no other information): Cronies of Putin told Trump-campaign officials that the Russian government wanted Trump to win the election. Trump recruited into his campaign the likes of Paul Manafort and Rick Gates, who had close ties and multi-million-dollar business dealings with Putin cronies, including leaders of the Kremlin-backed Ukranian political party that was largely responsible for the strife in Ukraine that has led to civil war and Putin’s annexation of Crimea. Manafort, who became Trump’s campaign chairman, offered briefings on the campaign to Oleg Deripaska, an oligarch so close to Putin that the latter has interceded on Deripaska’s behalf to protest U.S. travel restrictions. The Trump campaign also recruited as a foreign-policy adviser Carter Page, an obscure figure best known for being so sympathetic to the Kremlin, and so financially involved in the Russian energy sector, that Russian intelligence attempted to recruit him as an asset in 2013 (apparently unsuccessfully).
Meantime, top Trump-campaign officials elected to take a meeting with a Kremlin-connected lawyer at which they expected to receive incriminating information on Hillary Clinton that came straight from Russian-government files. The meeting was a bust — the lawyer, Natalia Veselnitskaya, appears to have used it as an opportunity to lobby top Trump associates against the Magnitsky Act, a notorious pet peeve of Putin’s. Yet the president’s son, Don Jr., apparently at the president’s urging, attempted to mislead the New York Times about the genesis of the meeting, coming clean only after learning that the Times had, and was about to publish, Trump Jr.’s emails detailing the expected transmission of campaign dirt about Clinton.
Special Counsel Mueller is building a report, not a case.
The real flaw was the assumption that Special Counsel Mueller is lining up witnesses and building a criminal case, as prosecutors do.
.. He is not.
No prosecutor builds a case the way Mueller is going about it. What prosecutor says, “Here’s our witness line-up: Michael Flynn, George Papadopoulos, Alex van der Zwaan, Rick Gates, Paul Manafort, Michael Cohen. And what is it that they have in common, ladies and gentlemen of the jury? Bingo! They’re all convicted liars.”?.. This kind of guilty plea signals to the world, including to all the other suspects, that the accomplice is ready to testify that the criminal scheme existed... The accomplice is ready to describe what he did and what everybody else did. Virtually every appellate opinion reviewing conspiracy convictions notes the principle that once a conspiracy is shown to exist, only slight evidence is needed to tie a conspirator to it... Juries do not convict people because they like or trust the prosecution’s witnesses. They convict because they are persuaded that justice demands redress for a real crime... we have stressed that the probe is a counterintelligence investigation, not a criminal investigation. The idea was not to dizzy you with Justice Department esoterica. The point is that we don’t want prosecutors involved until it has been established that a crime was probably committed.. Mueller does not have a crime he is investigating. He is investigating in hopes of finding a crime, which is a day-and-night different thing... collusion pours off every page of the narrative statements Mueller submitted to the courts in the cases of Papadopoulos and Cohen. They consult with Russian operatives, plan meetings for themselves and Trump with Russian officials, and — in Papadopoulos’s case — discuss the possibility of obtaining campaign dirt against Hillary Clinton from Russians. Yet, though these activities are the laser focus of his investigation, Mueller did not charge them as crimes because they are not crimes. Papadopoulos, Cohen, and the rest got jammed up, not for what they did, but for lying about what they did.
.. We know from our own daily lives that crimes account for only a very small percentage of the things people lie about. Indeed, throughout the 1990s, Democrats insisted that prosecutors should leave Bill Clinton alone because everybody lies about sex. People lie about things that they are embarrassed or ashamed about.
.. Successful politics requires horse-trading and compromise, so pols are forever explaining how they could actually be against something they voted for. A lot of this is embarrassing stuff. Consequently, when people in and around politics get caught practicing politics, they often lie about what they’ve done.
.. Politics is not a crime, of course. Consequently, if you criminalize politics — if you turn a prosecutor loose to investigate political campaign activities — you are apt to find unsavory conduct that is not criminal but that some people will lie about... Second, with the media as his biggest cheerleader (other than Jeff Flake), the false-statements pleas create the illusion of a collusion crime, and thus appear to vindicate Mueller’s sprawling investigation... the media omits that no one has been charged, much less convicted, of any crime involving collusion between Trump and Russia... Convicted liars never get cross-examined in a report. Nor do they give the bumpy, inconsistent testimony you hear in a courtroom. Instead, their version of events is outlined by a skilled prosecutor, who writes well and knows how to make their stories sing in perfect harmony... prove that many people Trump brought into his campaign were corruptible and of low character. Mueller, the career Justice Department and FBI man, will deftly use this fact to argue that suspicions about these people, and hence the investigation, were fully justified even if — thankfully — there was no prosecutable Trump–Russia conspiracy... Trump’s Republican and conservative critics will cheer, figuring the president and his rogues’ gallery had it coming. Democrats will cheer, knowing this would never happen to Democrats.
if a Democratic takeover of the House is to be avoided, the GOP desperately needs the voters who reluctantly pulled the lever for Trump only because he was not Hillary Clinton.
.. You may notice that Mrs. Clinton is not on the ballot this time. Meanwhile, in just the last few days, the president has attacked his attorney general yet again, this time for prosecuting two allegedly corrupt Republican congressmen and thus refusing to politicize the Justice Department; he has conflated himself with the country in absurdly suggesting that an anonymous derogatory op-ed by an administration official might amount to “TREASON,” such that the New York Times should “turn [the author] over to the government at once” for the sake of “National Security”
.. It’s about the Presidency, Not the President
More to the point, these derelictions — the president’s self-supplied fuel for the media narrative of an unhinged chief executive — make it politically risky for Republicans to defend the presidency by defending the president from what appears to be an unwarranted investigation.
.. To be clear, if there is probable cause to believe that Donald Trump was criminally complicit in Russia’s interference in the 2016 election, he must be investigated, and the nation must resign itself to the compromised administration that entails. But we have never been told, much less shown, that this is the case. It is supposed to be established before the investigation commences.
.. administration officials have had to go into their own pockets, paying millions in legal fees to defend themselves and comply with the special counsel’s demands
.. the signal has gone out to the meritorious people we should want to serve in future administrations: Why leave your prestigious, profitable job to serve in government and risk financial and reputational ruin?
.. 1. Rectitude
Mueller’s personal rectitude would be irrelevant. If he or you don’t think so, go ask Ken Starr. In any event, a prosecutor’s personal integrity is never dispositive when he or she commences an investigation, seeks a warrant, or tries an accused. What matters is whether the laws and rules have been satisfied.
2. Special Counsel Neither Necessary Nor Authorized for Investigation of Russia
If the president were a Democrat, it would be pointed out that to question the special counsel’s criminal investigation of the president is not to question the FBI’s counterintelligence investigation of Russia’s interference in the 2016 election. The latter is vital. No one denies that it should be aggressively pursued to its conclusion.
Moreover, if the counterintelligence investigation were incidentally to turn up concrete evidence that Donald Trump had committed a crime, no one denies that a special counsel appointment would be appropriate at that time. (Get it? Evidence of crime first, then assignment of prosecutor.) But unless and until that were to happen, a counterintelligence investigation does not need a prosecutor at all, much less a special counsel. That is why the aforementioned special-counsel regulations do not authorize an appointment for counterintelligence cases.
.. 3. Conflict of Interest
It is a condition precedent to the appointment of a special counsel that there be a conflict of interest. There is no such conflict preventing the Justice Department from investigating Russian interference in the election. If that were not obvious enough, Mueller himself has elucidated the point by transferring the two indictments he has brought against Russian operatives to Justice Department components — the “Troll Farm” case to the U.S. attorney’s office in the District of Columbia, and the hacking case to Main Justice’s National Security Division. If there were a conflict of interest, it would be inappropriate for the special counsel to make such transfers.
.. But while we’re on the subject of conflicts . . . let’s have a brief look at Mueller’s staff.
.. Of course, for the sake of his own credibility, Mueller is foolish to have stacked his staff with partisans. (Please, spare me the blather about how the Justice Department is not allowed to inquire about party affiliation when hiring. These are not obscure lawyers who applied for a job; they are well-known lawyers whom Mueller recruited into a hyperpolitical case, fully aware that they are activist Democrats.) But there is foolish, and then there is disqualifying. Being a Democrat is not disqualifying.
.. So whom does he turn around and recruit? Well, his chief deputy is Andrew Weissman, and his main legal beagle is Michael Dreeben. They were two of the top officials at the purportedly conflicted DOJ — respectively, chief of the criminal-fraud section and deputy solicitor general. Before her stint as Hillary Clinton’s lawyer, Jeannie Rhee was DOJ’s deputy assistant attorney general. She, like several other members of Mueller’s bloated staff, comes to the task of investigating the president either directly from the purportedly conflicted Justice Department or after a brief stint in private practice.
.. In any proper special-counsel investigation, it would be worth asking why, if the Justice Department is too conflicted to handle the case, its top officials are an ethical fit to staff the case. In this particular investigation, however, the actions of the Justice Department (and the FBI)
.. Weissman’s adulation of former acting attorney general Sally Yates for insubordinately defying the president on an enforcement matter, is it not worth asking why Attorney General Jeff Sessions had to recuse himself but Weissman gets to run the investigation?
.. If a Democrat were in the White House, it wouldn’t happen. Because if a Democrat were in the White House, and Weissman & Co. were Republicans transferred over from the Republican DOJ now under investigation, congressional Democrats would be screaming that there was no conflict of interest warranting the appointment of a special counsel, and that the only apparent conflict involved the prosecutors. And Republicans sages would be meekly agreeing — as would I (less meekly, I hope).
.. There is one thing and one thing alone that would justify the appointment of a special counsel: concrete evidence that Donald Trump committed a crime in connection with Russia’s election interference. So, to repeat: For precisely what federal crime is the president of the United States under investigation?