MUELLER FINISHED THE INVESTIGATION A FEW WEEKS after Barr’s confirmation. Mueller submitted his four-hundred-page report to the attorney general. He had already indicted Trump associate Roger Stone and over a dozen Russian agents (who remained in Russia and refused to show up for trial). Mueller had obtained criminal convictions against Trump’s campaign manager Paul Manafort, his deputy campaign manager Rick Gates, Trump campaign operative George Papadopoulos, and Trump’s former top national security advisor in the White House, Michael Flynn.
Mueller did not indict President Trump, any members of his family, or anyone in the Trump campaign for criminal conspiracy with the Russians. Mueller’s report, divided into two parts, explained the facts that the investigation had uncovered in two key areas: First, collaboration between the Trump campaign and the Russians and whether or not such collaboration was criminal, and, second, Trump’s efforts to stop the investigation and whether Trump had criminally obstructed justice.
Upon receiving Mueller’s report, Attorney General Barr could have released the full text or at least the summary portions of the report that had already been prepared by Mueller’s team. The report did not need another summary.
Instead Barr prepared his own four-page summary letter to Congress. This letter was inaccurate at best. Barr concluded that Mueller could not prove collusion with the Russians. (Wrong—Mueller had not said there was no collusion; rather, Mueller said that whatever happened there was not sufficient evidence to prove a criminal conspiracy between the Trump campaign and the Russians.) As for the charge of obstruction of justice, Barr said that “while the report does not conclude that the President committed a crime, it also doesn’t exonerate him.” An understatement to say the least.
Barr said he would make the Mueller Report public after “determining what can be released in light of applicable law, regulations, and departmental polices.”
Trump gloated.
Before getting on Air Force One on March 24, 2019, Trump reacted to Barr’s finding.
“It was just announced,” he said. “There was no collusion with Russia, the most ridiculous thing I’ve ever heard. There was no collusion with Russia. There was no obstruction and none whatsoever. And it was a complete and total exoneration.
“It’s a shame our country had to go through this. To be honest, it’s a shame your president had to go through this. Before I ever got elected it began. And it began illegally. And hopefully someone is going to look at the other side. This was an illegal takedown that failed. And hopefully someone is going to be looking at the other side. It’s complete exoneration. No collusion. No obstruction.
“Thank you very much.”
Two days later in the Oval Office, Trump said about the Mueller investigation, “A lot of people out there that have done some very, very evil things, very bad things. I would say treasonous things about our country.”
Lindsey Graham, who had spent the afternoon playing golf with Trump at Mar-a-Largo, held a news conference to announce that the Senate Judiciary Committee, which he chaired, would launch an investigation into what he called “all of the abuse by the Department of Justice and the FBI” during the 2016 election.
“Time to investigate the Obama officials who concocted and spread the Russian conspiracy hoax,” wrote Kentucky senator Rand Paul, another who golfed with Trump.
Commented Sean Hannity on Fox News, “We will hold every deep-state official who abused power accountable. We will hold every fake news media liar accountable. We will hold every liar in Congress accountable.”
White House counselor Kellyanne Conway called on House Intelligence Committee chairman Adam Schiff to resign. House minority leader Kevin McCarthy also called for Schiff to resign.
Barr’s wildly inaccurate summary of the Mueller Report allowed the Trump media machine inside and outside the White House to swing into action and call the entire investigation a hoax.
Barr’s title was attorney general of the United States, but he had actually joined the Department of Alternative Facts.
Barr stalled for four more weeks before releasing a redacted portion of the Mueller Report. All the public got was his four-page “summary.” These four weeks gave the Trump spin machine more than enough time to tilt the story—and gave the public a chance to forget about the Mueller investigation. Finally, in late April 2019, the Mueller Report was released to Congress and the public. Actually, it wasn’t. A heavily redacted version of the Mueller Report was released.
Several excuses were given for these redactions. Some information was classified. This information could be shared with members of Congress who have security clearances, but that hasn’t happened. Some of the redacted information relates to pending grand jury investigations, suggesting that there are more criminal cases related to the Mueller Report. This information, however, can be shared confidentially with members of Congress, with permission from the federal judge overseeing the grand jury. This hasn’t happened because Barr’s Justice Department hasn’t bothered to ask the judge. Yet other information is redacted because of “privacy” concerns for unindicted persons. A lot of Trump family and perhaps Kushner family financial information, as well as information about personal connections in Russia, may very well fall into this category. We don’t know—it’s all redacted.
Most of the redactions are in the first half of the Mueller Report concerning collusion with the Russians. All we know is that Mueller found that the collusion did not amount to a provable criminal conspiracy under federal law.
Because much of the report is redacted, we cannot discern:
1. The extent of the collusion;
2. The extent of Russia ties; or
3. Whether President Trump, high-ranking members of his administration, or his family are vulnerable to blackmail by the Russians, or could even be working for the Russians.
Congress—which has not been allowed to see the redacted portions of the report—can’t discern these facts either.
What do we know from the unredacted portions of the Mueller Report?
We will not provide a comprehensive summary of the report. The report is easily available online, and Americans should read the entire report—all of it. Americans should also demand that the redacted portions be revealed.
But a few highlights follow.
The first part of the report addresses collusion with the Russians. It is obvious that there was plenty of collusion, much of which we knew about before the report was released. This includes the Trump Tower meeting with a Russian agent about “dirt” on Hillary Clinton, as well as a Trump campaign “coffee boy” meeting with his Russian handler in the UK.
Discussed also are the various Trump campaign contacts with WikiLeaks, which, about the same time, was being contacted by Russian spies with information hacked from Democratic National Committee email and other email accounts associated with Clinton.
There was plenty of collusion—and that’s only what we know about from the unredacted portion of the Mueller Report. Contacts with the Russians that the public did not already know about most certainly were redacted by Attorney General Barr.
Lots of collusion.
But legally not all collusion is a criminal conspiracy.
Putting the Russians aside for a moment, political campaigns often collude with organizations and persons without engaging in a criminal conspiracy. These include labor unions, corporations, civic groups, and grassroots-issue-oriented organizations. Political campaigns collude with law-abiding Americans—and some lawbreaking Americans—to help candidates get elected.
But they collude with Americans—not Russians. There is scant evidence of any prior American presidential campaign colluding with any foreign government—much less the Russians—to win an election. The closest we have come to improper contacts with foreign governments is when Nixon let the South Vietnamese government know that they would get a better peace deal from him than from LBJ if they stalled on negotiations until Nixon won the election. That was wrong—indeed a violation of the Logan Act—but was nothing like what clearly happened between the Trump campaign and the Russians.
Collusion by presidential campaigns also does not ordinarily include collusion with known criminals. Yes, there were rumors that the mob helped deliver Illinois electoral votes to John F. Kennedy in 1960, but there was no evidence of Kennedy campaign workers being in contact with the mob, and in fact, as attorney general, Bobby Kennedy ruthlessly prosecuted the mob.
The 1972 Nixon reelection campaign did collude with known criminals including the Watergate burglars, and we know exactly where that endeavor led. If campaign officials know that someone else is hacking people’s email, breaking into buildings, or engaging in other criminal activity, those campaign officials should stay away and report what they know about it to the FBI. If they don’t, the entire campaign is very likely to be embroiled in an investigation just like the investigation conducted by Robert Mueller.
Collusion with known criminals is not always criminal conspiracy. But collusion with known criminals is a great way to get investigated for criminal conspiracy. And it’s an obvious way to never be allowed a security clearance by the United States government.
Yes, there are people who benefit from known criminal activity without reporting it to law enforcement. Landlords look the other way and rent rooms to drug dealers and prostitution rings, and some merchants earn huge markups by dealing in stolen merchandise (the separate crime of receipt of stolen merchandise was created in some jurisdictions to close this loophole in criminal conspiracy law). Prosecution of such people for criminal conspiracy in these cases is often unworkable. But these types of people should not be running our government or getting security clearances from our government.
Criminal conspiracy is a much narrower set of circumstances than collusion, even collusion with known criminals. A criminal conviction for conspiracy requires first an agreement (in this case between the Trump campaign and the Russians) to commit a certain underlying crime (such as computer hacking) and second an overt act by the defendant (in this case someone in the Trump campaign) in furtherance of the conspiracy.
These are the elements that Robert Mueller apparently believed could not be proven beyond a reasonable doubt against anyone in the Trump campaign. The Russians did not need someone in the Trump campaign to help them hack DNC email or any other email. Russians, particularly Russian security operatives, are perfectly good at computer hacking on their own. The Russians had probably already hacked the emails by the time they contacted the Trump campaign. They did not need Trump campaign workers to help them contact WikiLeaks. The Russians knew how to do that on their own. The Russians gave the Trump campaign a heads-up about what they were doing (the precise details of this are very likely buried in the redacted portions of the Mueller Report). But getting a heads-up about a crime, and even benefiting from the crime, without calling the FBI, and having private meetings with the people who commit the crime, is not itself criminal conspiracy unless all of the elements of the crime of conspiracy can be proven beyond a reasonable doubt.
Needless to say, when the criminals are not ordinary criminals, but Russian spies, and the persons collaborating with them work for the president of the United States, a lot more is at stake than whether a prosecutor can prove a criminal conspiracy case beyond a reasonable doubt. The fact that nobody in the Trump campaign reported to the FBI the multiple contacts made by the Russians is a concern. The fact that some people, including Michael Flynn, chose to lie about contacts with the Russians is also a concern. Whether the Russians are in a position to blackmail the president or anyone who works for him is also a concern.
As of the printing of this book, the public does not have the information in the redacted portions of the Mueller Report. Neither does Congress. Attorney General Barr has ignored the subpoena from the House of Representatives for the unredacted report. He is in contempt of Congress, but he considers that a joke. When he saw Speaker Nancy Pelosi in the halls of the Capitol, Barr joked, “Did you bring your handcuffs?” Unless the House impeaches Trump, it could be difficult to get courts to enforce this or any other House subpoena in a timely manner (House subpoenas of the Justice Department from the Obama administration took years to resolve in the federal courts).
The second part of the Mueller Report addresses the question of whether Donald Trump himself committed the crime of obstruction of justice in his repeated efforts to derail the Russia investigation, including his firing of James Comey and his attempt to get the Department of Justice to fire Robert Mueller, as well as dangling pardons before witnesses, influencing witnesses, and more.
Mueller’s job was principally to investigate the facts, and then to bring criminal charges if the facts showed that there was a crime that could be proven beyond a reasonable doubt under the law. If there were different interpretations of the law, particularly constitutional law, it was not Mueller’s job definitively to resolve those questions. That would be the job of the federal courts if and when the Justice Department chose to prosecute.
Moreover, that prosecution decision was not Robert Mueller’s to make. Each indictment had to be approved by top Justice Department officials. Before William Barr became attorney general, the approval was from Rod Rosenstein, but now that approval had to be from Barr.
Two constitutional law questions stood between President Trump and a criminal indictment for obstruction of justice. Barr could use these questions to stop a prosecution of Trump dead in its tracks, even if Barr’s interpretation of constitutional law was incorrect.
The first was the question of whether a sitting president can ever be criminally charged for anything while in office, or whether the Constitution requires that the president first be impeached or have his term expire. One would think that the founders, if they had wanted to make the president immune from prosecution while in office, would have explicitly said so. They didn’t. The Constitution is silent on this point.
What the founders did say—and very often—is that no man should be above the law. They did not want another King George III or an American version of the Roman emperor Nero who only faced justice for his crimes when he was finally tried by the Roman senators. The founders wanted an elected president with limited powers.
Nonetheless, arguments have been made that prosecuting a president during his term would be so disruptive that it should be postponed until after he leaves office. Even though the Supreme Court has already decided in the Clinton v. Jones sexual harassment case that a president can be civilly sued while in office, the court has never expressly said that a president can be criminally charged. A few legal scholars, including now Supreme Court justice Brett Kavanaugh in his 2009 article in the Minnesota Law Review, suggest that would likely be unconstitutional. We do not know how the Supreme Court would decide this question, but we aren’t going to find out.
The reason has nothing to do with Mueller, but rather the fact that the Justice Department under William Barr sticks to the position (admittedly a position that the Justice Department has adhered to in the past) that criminal prosecution of a sitting president is unconstitutional. Because of this, the Justice Department will refuse to bring charges.
Yes, the president could shoot someone dead in the middle of Fifth Avenue in New York City (Trump once boasted he could do just that with impunity), or commit any other crime, and the president wouldn’t be prosecuted. The position of the Department of Justice is that the president cannot be criminally charged until he is impeached by the House and removed by two-thirds of the Senate. If the president shoots another person in the middle of Fifth Avenue, same answer. Unless a majority of the House and two-thirds of the Senate are willing to remove him from office, he can just keep on going until his term expires. Only then can he be prosecuted.
That’s the Constitution according to William Barr.
In his May 2019 news conference, Robert Mueller made it very clear that an important reason—if not the reason—why he did not indict President Trump was that it is the position of the Department of Justice that a sitting president cannot be indicted for anything. It does not matter what the president did. It is up to the House to impeach him and the Senate to remove him. That is the only remedy. Mueller is not the attorney general and there is nothing he could do to change it. A recommendation to prosecute Trump sent to the attorney general’s desk would have been dead on arrival.
Mueller thus could not criminally prosecute Trump for anything. He was told that by Attorney General Barr; Barr was his superior, and he had no choice but to adhere to that order—or to resign.
The second constitutional question is whether a president can ever, even after leaving office, be criminally charged for obstructing a criminal investigation by his own Justice Department when the president, as head of the executive branch, has power to direct the policy of the Justice Department and to hire and fire presidential appointees in the Justice Department. Does a president have the power to use Donald Trump’s two favorite words—“You’re fired!”—to kill a Department of Justice investigation of himself, his family members, and his campaign?
In a country committed to the rule of law, the answer to this question should be an unequivocal “no.” A president can control Justice Department policy, and he can hire and fire senior officials, but he cannot use these powers to obstruct a criminal investigation, particularly an investigation of himself. A president has broad powers as head of the executive branch, but there are limits. He cannot take bribes (for example, he could not have taken $100,000 in return for firing James Comey as head of the FBI). He also cannot obstruct justice.
The reason: no man, even the president, is above the law.
But there is another alternative theory—the unitary executive theory. The idea is that the president as head of the Justice Department, or any other part of the executive branch, can decide what gets investigated and what doesn’t. If investigating his political opponents—for example, Hillary Clinton—is a priority, and investigating Russian interference with the election is “bad policy,” the president can decide that. Anyone who doesn’t go along with the president’s “policy” decisions—whether Sally Yates, James Comey, or Robert Mueller—can simply be told “You’re fired.”
In sum, under this unitary executive theory, the president is not exactly the same as a king because he does not have a lifetime appointment and does not pass the office to his heirs, but the president has much the same power as a king for four years. Not only may the president grant pardons (a prerogative expressly bestowed by the Constitution), but he can decide who doesn’t get prosecuted or even investigated (a prerogative not expressly bestowed by the Constitution but implied under the unitary executive theory). And he can do so for any reason he wants.
According to this constitutional theory, things didn’t change that much after the American Revolution against King George III except that our king-president is elected and serves for four years. Then we decide whether to keep him or elect a new one. If he cheats in the election, or even colludes with a foreign power, that is a matter that doesn’t even get investigated by the Justice Department unless he, as head of the unitary executive branch, decides it should be investigated. Anyone in the executive branch who disobeys his orders gets fired.
Sounds ridiculous. Yes. But this unitary executive theory is popular among some conservative legal scholars, with strong traces of it appearing, among other places, in the writings of Justice Kavanaugh. This theory was also much talked about in the early 2000s when then White House associate counsel Brett Kavanaugh served under President Bush.
This theory has not been tested in the courts in a criminal case against a president or a former president for obstruction of justice during his presidency. We probably would have had a criminal obstruction of justice trial against former president Nixon in the 1970s but for his pardon by President Ford. One cost of the Nixon pardon—one underappreciated at the time—was that federal courts never ruled on whether a president has not only the constitutional power, but also the legal right, to obstruct a federal investigation while in office. President Ford genuinely wanted to put an end to the “long national nightmare” of Watergate, but the Nixon pardon made it more likely that we would have another nightmare in the future.
Was Nixon’s obstruction of justice, including his Saturday Night Massacre firing of special prosecutor Archibald Cox in 1973, actually obstruction of justice or within his powers as president under the unitary executive theory? We never got a definitive answer to that question. Forty-five years later, we still don’t have a definitive answer.
We have no definitive answer from the courts to this part of the bigger question of whether the president for practical purposes is above the law.
All we have is William Barr’s answer.
And Barr knows what the answer is. That’s why he is attorney general. He buys the unitary executive theory 100 percent, particularly as it applies to Donald Trump.
Barr was very quick to decide this constitutional law question. Never mind that Mueller’s report discussed extensively reasons why such constitutional theories could not be used to justify Trump’s actions, and reasons why Donald Trump’s actions did amount to criminal obstruction of justice. Never mind that the Mueller Report specifically noted both the impeachment remedy and the possibility that a president could be criminally charged after leaving office. And that the report specifically said that President Trump, in the view of Mueller and his staff, was not exonerated.
Barr decided otherwise. In his March 24, 2019, four-page summary of Mueller’s report, Barr 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.” That’s not what the Mueller Report said, but it’s what Barr said, and he was the attorney general, appointed by the president, so that was that. Or so it seemed.
This was the same conclusion that Barr had already reached in memos he circulated in 2018 to defense lawyers representing targets in the Mueller investigation including Trump, and the same conclusion that Barr had reached as a private lawyer in his own lengthy memorandum of June 8, 2018, to Deputy Attorney General Rod Rosenstein and Assistant Attorney General Steven Engel with the heading “Mueller’s ‘Obstruction’ Theory.” Before he became Trump’s attorney general, Barr had denigrated Mueller’s investigation of Trump for obstruction of justice, and now Barr was doing exactly what Trump had hired him to do—shoot down the “obstruction theory” from his perch atop the Department of Justice.
The fact that Barr was now doing this not as a defense lawyer but in his new capacity as Mueller’s boss, purporting to “summarize” the conclusions that Mueller had reached, was ludicrous if not absurd. Mueller was disturbed by this “summary” of his conclusions, and wrote Barr a March 27, 2019, letter citing “public confusion about critical aspects of the results of our investigation.” Mueller continued, “This threatens to undermine a central purpose for which the Department appointed the Special Counsel: to assure full public confidence in the outcome of the investigations.”
But that letter apparently was ignored. Barr also “forgot” about it when he testified at an April 9, 2019, House hearing when Representative Charlie Crist (D-FL) asked him if he knew why members of Mueller’s team were frustrated with his March 24 letter.
“No. I don’t,” Barr said.
In sum, Barr had relied upon two legal theories not supported by controlling case law—the theory that a sitting president could not be charged for any crime while in office, and an extreme version of the unitary executive theory under which it was virtually impossible for a president to obstruct justice—to sink an otherwise very strong obstruction of justice case against President Trump. Barr did what he was hired to do.
But what about the facts? Those were bad—very bad.
For a defendant who is not president—a mere mortal who is not somehow constitutionally above the law because William Barr says so—an obstruction of justice charge requires three things: 1) that the person commit an obstructive act, 2) a nexus of that act with an official proceeding, and 3) a corrupt intent of that person in committing the act. The person must do something to obstruct; there must be a connection between that act of obstruction and an official proceeding such as the Russia investigation; and the person must have a corrupt intent in committing the act of obstruction.
The facts already discussed at length show that Donald Trump’s conduct satisfies all three elements of the crime of obstruction of justice in multiple instances:
• Trump’s conduct to obstruct the investigation into Michael Flynn
• Trump’s firing of Comey
• Trump’s efforts to fire Mueller and to curtail Mueller’s investigation
• Trump’s efforts to have Sessions “un-recuse” and take control of the investigation
• Trump’s order to White House counsel Don McGahn to lie about Trump’s earlier attempt to fire Mueller and Trump’s order to McGahn to create a false record “for our files”
Trump’s conduct in other instances also may have satisfied the elements of a criminal case for obstruction of justice.
In sum, we have a president whose campaign collaborated with Russian agents, and even though that collaboration did not amount to a provable criminal conspiracy, several of his highest associates lied about their contacts with the Russians and have been criminally convicted for lying. Furthermore, the president has clearly engaged in conduct that would be obstruction of justice for any ordinary citizen.
President Trump has not been criminally charged because his own attorney general believes the president is above the law. Attorney General Barr’s constitutional law theories—both of them—would apply only in a criminal case and would not be binding on the House and Senate in an impeachment trial where representatives and senators can define for themselves the meaning of “high crimes and misdemeanors.”
The Mueller Report is a clear road map for impeachment.