April 29, 2019

IT'S AN IMPEACHMENT REFERRAL:

Guide to the Mueller Report's Findings on "Collusion" (Ryan Goodman, Apr. 29th, 2019, JustSecurity)

Summary of Major Findings

The redacted Mueller Report documents a series of activities that show strong evidence of collusion. Or, more precisely, it provides significant evidence that Trump Campaign associates coordinated with, cooperated with, encouraged, or gave support to the Russia/WikiLeaks election interference activities. The Report documents the following actions (each of which is analyzed in detail in Part II):

1. Trump was receptive to a Campaign national security adviser's (George Papadopoulos) pursuit of a back channel to Putin.

2. Kremlin operatives provided the Campaign a preview of the Russian plan to distribute stolen emails.

3. The Trump Campaign chairman and deputy chairman (Paul Manafort and Rick Gates) knowingly shared internal polling data and information on battleground states with a Russian spy; and the Campaign chairman worked with the Russian spy on a pro-Russia "peace" plan for Ukraine.

4. The Trump Campaign chairman periodically shared internal polling data with the Russian spy with the expectation it would be shared with Putin-linked oligarch, Oleg Deripaska.

5. Trump Campaign chairman Manafort expected Trump's winning the presidency would mean Deripaska would want to use Manafort to advance Deripaska's interests in the United States and elsewhere.

6. Trump Tower meeting: (1) On receiving an email offering derogatory information on Clinton coming from a Russian government official, Donald Trump Jr. "appears to have accepted that offer;" (2) members of the Campaign discussed the Trump Tower meeting beforehand; (3) Donald Trump Jr. told the Russians during the meeting that Trump could revisit the issue of the Magnitsky Act if elected.

7. A Trump Campaign official told the Special Counsel he "felt obliged to object" to a GOP Platform change on Ukraine because it contradicted Trump's wishes; however, the investigation did not establish that Gordon was directed by Trump.

8. Russian military hackers may have followed Trump's July 27, 2016 public statement "Russia if you're listening ..." within hours by targeting Clinton's personal office for the first time.

9. Trump requested campaign affiliates to get Clinton's emails, which resulted in an individual apparently acting in coordination with the Campaign claiming to have successfully contacted Russian hackers.

10. The Trump Campaign--and Trump personally--appeared to have advanced knowledge of future WikiLeaks releases.

11. The Trump Campaign coordinated campaign-related public communications based on future WikiLeaks releases.

12. Michael Cohen, on behalf of the Trump Organization, brokered a secret deal for a Trump Tower Moscow project directly involving Putin's inner circle, at least until June 2016.

13. During the presidential transition, Jared Kushner and Eric Prince engaged in secret back channel communications with Russian agents. (1) Kushner suggested to the Russian Ambassador that they use a secure communication line from within the Russian Embassy to speak with Russian Generals; and (2) Prince and Kushner's friend Rick Gerson conducted secret back channel meetings with a Putin agent to develop a plan for U.S.-Russian relations.

14. During the presidential transition, in coordination with other members of the Transition Team, Michael Flynn spoke with the Russian Ambassador to prevent a tit for tat Russian response to the Obama administration's imposition of sanctions for election interference; the Russians agreed not to retaliate saying they wanted a good relationship with the incoming administration.

During the course of 2016, Trump Campaign associates failed to report any of the Russian/WikiLeaks overtures to federal law enforcement, publicly denied any contacts with Russians/WikiLeaks, and actively encouraged the public to doubt that Russia was behind the hacking and distribution of stolen emails.

One qualification before proceeding to the analysis in Part II: a significant amount of relevant information was unavailable to Mueller due to four factors. First, as the Report states, "several individuals affiliated with the Trump Campaign lied to the Office," and "those lies materially impaired the investigation of Russian election interference." Second, President Trump's interference in the investigation also appears to have stymied the investigation. A key example is Paul Manafort's failure to cooperate with the Special Counsel because he was apparently led to believe that President Trump would pardon him. Third, some individuals used encrypted communications or deleted their communications. Fourth, some of the individuals who "cooperated" with the investigation (e.g., Steve Bannon) appear to have been deceptive or not fully forthcoming in their dealings with the Special Counsel. Several individuals failed to recall the content of important conversations with Trump or other Campaign associates. The Report states, "Even when individuals testified or agreed to be interviewed, they sometimes provided information that was false or incomplete."

Finally, some tips for reading the Mueller Report. It is important to keep in mind that the Report's analysis is about whether or not to prosecute someone for a crime. Furthermore, statements that the investigation "did not establish" something occurred are not the same as saying there was "no evidence" that it occurred. The Report has clear ways of saying when the investigation found no evidence. It conveys the absence of any evidence when, for example, it states the investigation "did not identify evidence" or "did not uncover evidence" that something occurred. Even then, absence of evidence is not evidence of absence. When there is "evidence of absence," the Special Counsel was willing to say the investigation "established" effectively that something did not occur. For example, the Report states that the investigation "established" that interactions between the Russian Ambassador and Campaign officials at certain locations were "brief, public, and non-substantive." That finding excludes the possibility that something more nefarious occurred in those particular interactions.

Conservatives rightly found it disgraceful that Democrats defended Bill Clinton--and the Senate failed to convict him--for perjury, suborning perjury and for obstructing justice in a sexual assault case. Imagine defending Donald for all this?



MORE:
The Five Most Important Takeaways From the Mueller Report: If there wasn't collusion, it sure wasn't for lack of trying. (Benjamin Wittes, 4/29/19, The Atlantic)


Here are five conclusions I drew from the exercise:

The president committed crimes.

There is no way around it. The attorney general's efforts to clear the president, both in his original letter and in his press conference the morning of the report's release, are wholly unpersuasive when you actually spend time with the document itself.

Mueller does not accuse the president of crimes. He doesn't have to. But the facts he recounts describe criminal behavior. They describe criminal behavior even if we allow the president's--and the attorney general's--argument that facially valid exercises of presidential authority cannot be obstructions of justice. They do this because they describe obstructive activity that does not involve facially valid exercises of presidential power at all.

Consider only two examples. The first is the particularly ugly section concerning Trump's efforts to get then-Attorney General Jeff Sessions to "unrecuse."

The alleged facts are simple enough. According to Mueller, the president asked Corey Lewandowski to convey a message to Sessions, a message Trump dictated. It was a request that Sessions reassert control over the special counsel investigation, make a speech in which he would declare that the president didn't do anything wrong and that the special counsel investigation of him was "very unfair," and limit the special counsel investigation to interference infutureelections. Lewandowski asked a White House staffer to deliver the message in his place; the staffer in question never did so.

There are a few important factors to highlight here, all of them aggravating. Lewandowski was not a government employee, so this was not an example of the president exercising his powers to manage the executive branch. Indeed, Trump very specifically did notgo through the hierarchy of the executive branch. He tried to get a private citizen to lobby the attorney general on his behalf for substantive outcomes to an investigation in which he had the deepest of personal interests. What's more, the step he asked Lewandowski to press Sessions to take was frankly unethical. Sessions was recused from the Russia probe because he had an actual conflict of interest in the matter. In other words, the president of the United States recruited a private citizen to procure from the attorney general of the United States behavior the attorney general was ethically barred from undertaking.

But it gets worse, because Trump did not merely seek to get Sessions to involve himself in a matter from which he was recused. He wanted him both to limit the scope of the investigation and to declare its outcome on the merits with respect to Trump himself. This action would have quite literally and directly obstructed justice. Limiting the jurisdiction of the special counsel to future elections would have, after all, precluded the indictments Mueller later issued for the Russian hacking and social-media operations. It would have precluded the prosecutions of Paul Manafort, Michael Cohen, Mike Flynn, George Papadopoulos, and Rick Gates, as well. Nor is there any real complexity here with respect to Trump's intent. As Mueller reports, "Substantial evidence indicates that the President's effort to have Sessions limit the scope of the Special Counsel's investigation to future election interference was intended to prevent further investigative scrutiny of the President's and his campaign's conduct."

As a criminal matter, this fact pattern seems to me uncomplicated: If true and provable beyond a reasonable doubt, it is unlawful obstruction of justice. Full stop.

Another example: Mueller reports that after the news broke that Trump had sought to get White House Counsel Don McGahn to have Mueller fired, Trump sought to get McGahn to deny the story. He also sought to get him to create an internal record denying the story. McGahn refused.

The attempt to get McGahn to write an internal memo disputing the story is the critical fact here. The president's conduct might otherwise be defended as a mere effort to lie to the press, but one doesn't order the creation of false internal documents for purposes of denying a published story. So the question is, first, whether what Mueller described as Trump's "repeated efforts to get McGahn to create a record denying that the President had directed him to remove the Special Counsel" would have "the natural tendency to constrain McGahn from testifying truthfully or to undermine his credibility" if he told the truth. The second question is whether such a corrupt outcome was specifically intended by the president.

Mueller acknowledges that there is "some evidence" that the president simply thought the story was wrong and was proceeding on his memory. But the prosecutor is pretty clear that the weight of evidence "cuts against that understanding," though--as always--he stops short of making that judgment explicit. Not the least reason the evidence does not favor that view is that McGahn's underlying story, as Mueller previously concluded, was amply supported by the evidence, while it's hard to believe the president would simply have forgotten an effort to fire Mueller. As to the president's intent, Mueller is pretty unabashed: "Substantial evidence indicates that in repeatedly urging McGahn to dispute that he was ordered to have the Special Counsel terminated, the President acted for the purpose of influencing McGahn's account in order to deflect or prevent scrutiny of the President's conduct toward the investigation."

Assuming that one believes this could be proved beyond a reasonable doubt, it is not hard to imagine this fact pattern as a count in an indictment. It is hard to imagine a plausible defense based on the idea that pressuring an employee to create false government records by way of influencing his ability to tell the truth is within the president's constitutional authority.

There are a number of other examples. If one accepts, as I do, Mueller's general reading of the obstruction statutes as applied to official presidential action, there are many more. When Trump leaves office, assuming statutes of limitations have not yet run, someone will have to make the binary assessment, which Mueller did not make. of whether they amount to prosecutable cases. As a historical matter, the report leaves me with little doubt that the president engaged in criminal obstruction of justice on a number of occasions.






Posted by at April 29, 2019 4:41 AM

  

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