Finally, the famously quiet man, Special Counsel Robert Mueller, has spoken. At 11 a.m. Wednesday, before reporters at the Justice Department, he spoke tersely about his report, and walked away from questions. End of Act I.
The recently released 448 pages, plus hundreds more of related supporting materials, that make up the Mueller Report are a first cut at the official record of these historic events. Partisan observers will take from the report what they brought to it—proof of Donald Trump’s high crimes and misdemeanors to his detractors, and no collusions, no obstructions in the eyes of his supporters. But there are facts, careful ones, not fake ones, that the report carefully lays out and documents, and they are important and worth considering by the public as follow-up investigations proceed Mueller’s careful comments at his press conference.
Mueller stated that there was Russian interference with the election and there was obstruction of his investigation. But regarding President Trump, he was bound by his sense of essential fairness and Justice Department guidelines not to draw prosecutable conclusions about him. His report went to Congress, and it alone must decide if formal action is warranted.
Part I: Conspiring with russia
Despite “multiple links between Trump Campaign officials and individuals tied to the Russian government… the investigation did not establish that the Campaign coordinated or conspired with the Russian government in its election interference activities.”
The report concluded that “Russia interfered in the 2016 presidential election through the active measures social media campaign carried out by their Internet Research Agency.” This profoundly wicked treachery was spelled out in the report’s heavily redacted pages, and 25 Russians have been indicted for this misconduct but so far have escaped U.S. jurisdiction. Yet, the report’s conclusion did not connect the President with that treachery. I would add one notion in this regard, Justice Department policy notwithstanding.
When I was an organized crime prosecutor in the RFK Justice Department, I tried and retried a criminal case that ultimately went to the Supreme Court, and its ruling sheds light on the current debate. The case was U.S. v. Lester & Buccieri, (1967), and the ruling dealt with the second section of the federal criminal code—not some exotic or vaguely defined crime. I am reminded now of that notorious case for depriving citizens of their civil rights when acting under color of law 18 (USC 242). The ultimate conviction was confirmed by the Sixth Circuit in 1966 and upheld by the U.S. Supreme Court in 1967. It is relevant now.
The case involved a conspiracy to falsely arrest and disgrace George Ratterman, a former football star running a political campaign to clean up Newport, KY, then described as a corrupt “sin city.” Our first trial ended in a hung jury. I retried it, and we convicted the lawyer and one of the gambling casino characters. The jury acquitted the other casino operator (later convicted of another crime) and dismissed the case against the three policemen. The case was appealed on the theory that the two who were convicted weren’t and couldn’t be acting under color of law, that offense could only be charged against the three acquitted policemen. Interesting theory.
In 1966, the federal appellate court upheld the conviction, noting in passing that the evidence was sufficient to convict all six. The Sixth Circuit ruled that the two appellants were guilty of aiding and abetting the three acquitted police officers. The two convicted defendants were guilty of aiding and abetting a conspiracy, even if they could not commit the substantive criminal offense which was the object of the conspiracy.
The appellate court ruled that under 18 USC 2 (still the law), whoever “aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal.” If he “causes an act to be done by him or another,” that would be an offense against the U.S., and he could be punishable as a principal. Ignorance of the law, all know, is no defense. Nor is the incompletion of any planned conspiracy.
“…even though a defendant was incompetent to commit the offense as principal by reason of not being of a particular age, sex, condition, or class, he may, nevertheless, be punished as a procurer or abettor.”
A Politico survey of law professors offered a list of crimes that might result from facts already made public about Russia’s involvement in the 2016 election. They include violations of election and campaign financing laws, foreign intelligence activities or cybersecurity prevention laws, wire fraud, misprison of a felony, false filings and false statements to government officials, the Computer Fraud and Abuse Act, and perjury.
Might the Lester precedent apply to the acts of Trump, and Trump, Jr., Manafort, Kushner, and any others—in the private sector, the campaign, or the government? Since we now know that Russians violated some of the laws Politico noted, might any of these Americans—possibly the President—have aided and abetted them? The law is venerable, going back to the 14th century, and it cited modern applications of it. Might the current controversy be the latest and most profound application of the Lester case ruling? The Mueller Report did not exclude that possibility.
Part II — Obstruction of Justice
“Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President’s conduct…while this Report does not conclude that the President committed a crime, it also does not exonerate him.”
Former Watergate and the Southern District of New York prosecutor and MSNBC legal commentator Nick Akerman has stated“ if you have one cooperating witness, you need strong corroborating evidence such as a tape. If you just have two corroborating witnesses, the weight of the corroborating evidence can be less than a tape, e.g. documents. But if you have three corroborating witnesses, it is pretty much a slam dunk.” Mueller offered a slam dunk.
Didn’t Trump attempt to obstruct justice in his dealings with James Comey, Jeff Sessions, Rod Rosenstein, national security and White House officials? When they didn't do as he asked, he raged about it, repeatedly. If all we know about the Russian criminal hacking wasn't aided and abetted by Trump’s family and aides—among about 1000 other experienced former prosecutors, I would have thought so—for sure the evidence we do know demonstrates that if Trump didn't actually “collude,” to use his word, or obstruct, he tried to.
Attempt (18 U.S.C. § 1349) is defined as a crime when there is an attempt to commit a crime. According to the Model Code Criminal, attempt is “taking action that commences its execution by means of a substantial step, but where the offense does not occur because of circumstances independent of the intentions of the person.”
Aiding and abetting is defined in 18 U.S.C. 2, “Whoever commits an offense against the U.S. or aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal.”
Mueller limited his conclusion on conspiring with Russia regarding the last election because he felt bound by the departmental opinion that a sitting President cannot be indicted. He honored a questionable Justice Department policy but did not exonerate the president, as Attorney General Barr claimed. The Mueller Report states “we determined not to apply an approach that could potentially result in a judgment that the President committed crimes.”
With the Mueller findings now turned over to Congress, surely his report provides evidence of an impeachable offense? Given current political partisanship, the Vegas odds would say “yes: about the House vote, and “no” about the Senate. But that can change as evidence develops in impeachment hearings that persuades Republican senators to do as their predecessors did in the Nixon impeachment process.
Using Akerman’s guideline, Part Two of the report lists numerous examples of obstructions of justice. Most will be familiar to the public from news accounts, but Mueller’s documentations are overwhelming. Together they combine to outline a fulsome and awful course of conduct by the president and his cohorts.
Mueller was handcuffed by the Justice Department policy that a sitting president can't be indicted, a policy that makes no sense. If he shot Attorney General Sessions for recusing himself, is it conceivable he could not be arrested and convicted? Haven’t Kings been “removed” for less malicious behavior? Nonetheless, Mueller accepted that premise, but noted that there was an alternative: to impeach a president or indict and try him after he leaves office, providing the president a weird unconscionable reason for seeking a second term.
Mueller’s list of criminal obstructions is daunting. It includes the campaign’s lying about its business connections to Russia regarding building a Trump Tower in Moscow; National Security Advisor Michael Flynn lying about relations with Russia; the President meeting with then FBI Director James Comey to seek loyalty; and “letting Flynn go.” New embarrassing Flynn disclosures just were released.
The President tried to interfere with the Mueller investigation through White House Counsel Donald McGahn, trying to get Sessions to unrecuse himself, and trying to convince National Security agencies to give him false cover by stating publicly that he had no role in disturbing the Russian interference investigation of the election. None would do so. They knew otherwise. Comey would not “lift the cloud” and was eventually fired from the FBI for this, as the President admitted on television.
The President attempted through staff to curtail the special counsel’s investigation, and to prevent disclosure of evidence, kept pressuring McGahn and Sessions to intervene in the investigation. Deputy National Security Adviser K.T. McFarland was told by Steve Bannon and Reince Priebus that the president wanted her to resign, possibly be named ambassador to Singapore if she would draft an internal email memorializing that the president did not direct Flynn to talk to Russian Ambassador Sergei Kislyak about sanctions against Russia. Priebus later told her to forget about it.
The President continuously praised Manafort, suggesting via speculation that a pardon might be awarded if he hung tough. Manafort did, and suffered more than anyone for his loyalty. The President praised his New York City lawyer Michael Cohen while he cooperated with him, then turned on him in cruel ways when Cohen became a government witness. Cohen went to prison for doing what the President asked him to do to hush a witness to his marital misbehavior.
When it became clear that the President himself was a subject of the investigation, the report continued, he “engaged in a second phase of conduct involving public attacks on the investigation, non-public efforts to control it, and attempts to influence witnesses.” Mueller wrote, “no principle of law excludes public acts from the reach of the obstruction laws,” suggesting his words were written for Congress.
Congress’ role of impeachment given by the Constitution is the “authority to prohibit a President’s corrupt use of his authority in order to protect the integrity of the administration of Justice.” Congressional investigations have just begun, and the President is not cooperating and Mueller says he won’t go beyond the words of the report.
Our government works—slowly, surely, fairly, usually right. The House of Representatives was about to vote impeachment of President Nixon for obstruction of justice, abuse of power, and contempt of Congress (sound familiar? relevant again?), but Nixon resigned before that happened and he was later pardoned by his replacement.
Secrets don’t remain secrets forever in Washington, DC, as recent reports prove. Meantime, the report offers a good start, however diffident Mueller was in expressing his conclusions. He decided to let the public do with it as it wills. As New York Times columnist Maureen Dowd saw it, Mueller “took a torturous route to decide not to decide on obstruction.” And I would add that Attorney General Barr, his former Justice Department colleague, dishonorably played him for his rigorous self-control.
One of the current options now might mirror the Watergate result, but other courses could continue to play out, (indictments for state and local non-pardonable offenses?, a voluntary if angry forced retirement?). Mueller added that “…a President does not have immunity after he leaves office.” As the nation watches, Congress and the media will fulfill their proper roles in going forward with the final judgment.
As that happens, extraordinary constitutional and public policy issues will arise. Defining the bounds of legitimate executive power and claims of privilege? And of Congress’ constitutional powers of oversight? But the Courts have powers over both the Congress and the President? And what about the rule of recusal that governs the U.S. Supreme Court? On the question of presidential responsibility, for example, must Justices Gorsuch or Kavanaugh recuse themselves? Under the Court’s recusal law, a challenged Justice alone decides with no later independent review of his decision, a bizarre and injudicious rule
As Act I of this historic and consequential drama is now concluded, Speaker Pelosi has the nod to proceed with impeachment hearings. As we all stay tuned for Act II, one thing is clear: President Trump is a lucky man. Comey’s improper, excessive, politically loaded statements got Trump elected; and Special Counsel Mueller’s honorable, careful, rigorously apolitical position about his assignment, saved Trump from prosecution, at least for now. Comey said too much. Mueller said as little as possible, but what he did say between his lines Wednesday said much.
Act II now begins.
Ronald Goldfarb is a Washington DC attorney and author who served in the RFK Department of Justice as a prosecutor of organized crime. His book, Perfect Villains, Imperfect Heroes, was published by Random House. He has written and contributed to 15 books and authored approximately 600 articles, op-eds and book reviews.