July 17, 2019 –
To all those who have wondered–What does the Mueller Report “really” say? Here it is!
After countless hours of reading and analyzing the full “redacted” form of the “Mueller Report” as released by Attorney General Barr to the public–it is clear that Special Counsel Robert Mueller could not find “tangible” evidence of an organized conspiracy “aka collusion” between the Trump Campaign and the Russian Government. So what’s all the hype and spin about President Trump’s involvement in some sort of Russia conspiracy–dubbed as “collusion” by the media? The answer lies in the fact that much of the evidence that Mueller and his team sought to examine, simply no longer existed when they went to search for it. So what happened to either the “incriminating or exculpatory” evidence that Mueller sought from the White House computers? It appear that Mueller and the American people may never know–as many in the president’s circle refused to answer questions posed by Mueller on the issue. It is also known that some of Trump’s aides deleted what Mueller referred to as unrecoverable social media entries. It also appears that there were several reasons why the documentary evidence Mueller sought was no longer in existence on the White House computers or anywhere else. To better understand the chronology of events and the dynamics of his investigation, it is vitally important that Robert Mueller testify before Congress.
So what are the facts as we know them?
The bottom line is: whether the documentary evidence Mueller sought was incriminating or exculpatory–it had been destroyed. In his “Report” we were told that “routine” protocols were in place at the White House to wipe information from the databases–which could potentially be seen as either a means to cover up a crime–or alternatively, could be seen as a routine part of general “housekeeping.” But whatever the reason for the “missing” documentary evidence–Mueller must testify and explain what he did, what he found, and why he did not, or could not find the data, or “forensically” examine the White House computers. He must also elaborate on the foundation for the search, and what weight he attributed to the fact that many of the president’s aides refused to provide him with the information he sought. It seems surreal that one can refuse to answer a Special Counsel’s inquiry, and not wind-up in jail for withholding information pertinent to an investigation–or not be deemed a non-cooperating witness, or not be charged as an accessory/co-conspirator after the fact.
When a potential witness is able to obfuscate questioning and impede an investigation, it not only interferes with the discovery of evidence, it also impedes the fact finder from uncovering the truth. Even more troubling, this scenario of obfuscation occurred more than once, as several White House aides and potential “witnesses” invoked their Fifth Amendment Right Against Self-Incrimination.” In fact, as late as June 19, 2019, Hope Hicks, former communications director for the White House declined to answer questions when questioned in a closed-door session by Congress over her time in the Trump administration. This right was seemingly invoked by several aides not only to justify their own refusal to cooperate with the Special Counsel–it also appears to be invoked to protect themselves from Congressional inquiry, in addition to Donald Trump. The irony of all this is that during Donald and Ivana’s contentious divorce in 1990, Donald himself invoked his Fifth amendment right 97 times on deposition questions related to adultery. Yet years later, President Donald is also on the record for stating: “If you’re innocent, why are you taking the Fifth?”
So why did Mueller not charge any of the Trump White House Aides and Campaign Staff (aside from Manafort, Cohen, Papadopolous & Gates) of wrongdoing, as a result of their invoking their Fifth Amendment right? Mueller must testify so the American people can find out.
Yet, despite the blatant lack of cooperation by Trump and his closest associates, Mueller clearly stated in his “Conclusion” in Volume II, page 182 of his 448-page “Report” — and again restated in his televised press conference on May 29, 2019: that because he did not bring an indictment against the president, this did not mean there was no evidence of a crime. As he famously stated in his report and on TV: “[W]hile this report does not conclude that the President committed a crime, it also does not exonerate him.”
Mueller Statement, Volume II, page 448 of the “Special Counsel Report,” states:
Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President’s conduct. The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, 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. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”
What this means, is in Mueller’s view, for reasons not fully elaborated upon in the “redacted” report at to why he did not make a “traditional prosecutorial judgment” about the President’s conduct–there are a number of reasons. We can speculate that it may be that Trump’s unprecedented conduct of flouting the rule of law with his “unorthodox” conduct, combined with his outrageous and “unprecedented” statements presented novel and difficult issues of law and fact; and challenged the traditional norms in place to charge the highest chief executive officer–the President–with a crime. Another reason is the Department of Justice Rule that a sitting president cannot be indicted–which no doubt weighed heavily in Mueller’s analysis of the facts and the law (see below).
Other issues that relate to the “suppression of evidence” also shed light on why an additional evidence was not found to either clear or incriminate the president. That reason is the existence of a “taint team.” That is, a team of lawyers that had initial access to sensitive presidential documents whose job was to scour them before Mueller and his investigatory team obtained access to them. Their job was to sift through the documents for what could be withheld as “undiscoverable information” that contained private attorney/client conversations between Trump and his attorneys. Because attorney client privilege is inviolable, any statements Trump made to his lawyers, with regard to any crime or coverup to which he sought legal counsel, is privileged and thereby protected from discovery. Moreover, because he is the president, he can also claim “executive privilege” in addition to “attorney/client” privilege before turning over documents for discovery.
In essence, the “taint team” lawyers would act as screeners for all Trump related documents–reviewing them to determine if the “Attorney/Client Privilege” or “Executive Privilege” would apply. And, if the “taint team” deemed that these privileges “did” in fact apply–they would keep all such information from reaching the Special Counsel and his investigatory team. Even beyond the multiple assertions of “Privilege” by Trump to keep his affairs “secret,” Mueller also indicated in his Report that some potential witnesses were outside the United States, and beyond the reach of the US legal system, and therefore were “unavailable” for questioning.
As noted, the “taint team” was tasked with reviewing presidential communications and legal documents that were sensitive enough for the president to invoke attorney/client privilege or executive privilege. This would tamp down” any attempt to release statements Trump made to his lawyers or them to him under under a panoply of privileges he asserted to support non-disclosure.
What this all means it that many documents could not be reviewed by Mueller and his investigatory team. Of course this information could be related to the “alleged” Russia collusion/conspiracy and potential coverup.
The bottom line is, not only was Mueller prevented from learning the truth–the American people were prevented as well.
Trump’s History of Litigious Behavior
Because President Trump has a long and well-publicized history of litigious behavior, it is also known that he regularly seeks the consult of his attorneys before committing to a deal, or a statement that he would put out in the media. Because of his regular consult with attorneys, he was able to “preemptively” cloak much of his internal conversations with those close to him–including statements with his attorneys and those on his staff under the full panoply of “privileges.” These privileges function as an umbrella–to shield “protected” comments and statements to prevent their disclosure–even to Mueller. In essence, by always seeking legal advice, Trump prospectively insulated himself from inquiry, and disclosure of sensitive, and potentially incriminating and embarrassing information. In this manner, he was able to “successfully” thwart disclosure, and dispel any indicia of wrongdoing on his or his staff’s part, as far as the privileges that were invoked. Yet, despite all the assertions of privilege–he could have effectively waived any of them if he sought to be truly transparent, or had nothing to hide. Yet, he did neither.
Guilty Mind or Just Bad Manners?
As stated above, if anyone–including Trump committed no wrongdoing as he routinely stated, he could have easily allowed Mueller and his team to see the “protected” documents by “waiving” privilege. But he chose not to do so, which in turn allows one to make inferences to infer wrongdoing, or a guilty mind. Even beyond invoking privileges, Trump refused to provide written answers to questions on Obstruction of Justice which by definition includes Witness Tampering, and also includes Solicitation to Suborn Perjury. As seen in his many appearances on camera, there are multiple and quite obvious public examples of this conduct reported: from publicly urging and cajoling witnesses such as Manafort and Cohen not to cooperate with the government or testify–while simultaneously ongoing grand juries were being empaneled and hearing evidence. All of this occurred while President Trump’s public discussion of “possible” “pardons” became front and center. The timing of this brings the “nexus”element needed to sustain criminal conduct charges into play–while showcasing the argument that the President did so with nefarious intent–to dissuade cooperation by then government witnesses–and potentially sow bias among empaneled jurors during ongoing grand jury proceedings.
Under the law, all statements made–whether in public or private that are meant to “influence” the intended recipient during a criminal investigation are treated the same. Here there were numerous”solicitous” statements made publicly by President Trump–urging witnesses such as Manafort and Cohen not to cooperate with the government. This can be seen under the law as an attempt to “influence” witness testimony and dissuade cooperation with government investigators–by working to bolster personal allegiance to Trump. It can also be seen as an attempt to undermine a witness’s allegiance to government and ultimately “people” and country. On its own merit, such solicitous behavior itself can cause one to be charged under the Obstruction of Justice statutes, as Solicitation to Suborn Perjury. It is clear, when one is in a position to “influence”: here a sitting President has the actual ability to extend pardons, while concurrently making statements urging noncooperation with investigators, while openly flaunting the “power of the pardon”–made during sensitive parts of the “criminal investigation” and grand jury hearings–this person makes his own case for Obstruction of Justice, Witness Tampering, and Solicitation to Suborn Perjury.
Under the law, a person who solicits perjury can be found guilty as an Accessory After the Fact to the underlying crime that he/she is trying to cover up. Conversely, a person can be charged and found guilty of Solicitation and Obstruction of Justice even if the under-lying crime cannot be proved beyond a reasonable doubt. This may be the point Mueller is making in his Report and punting to Congress.
In the present instance, we have that “person of interest” to be the President of the United States, who is by no means a stranger to the litigation and the legal system, who from personal appearances and statements: willingly, knowingly, and intentionally tried to influence witness cooperation or alter public opinion during sensitive grand jury hearings that can effect their outcome. At minimum, such statements had the added benefit of simultaneously fostering confusion and bias in the court of public opinion–and especially, perhaps their intended target–those already empaneled on a grand jury. Surely under the law, such a person can be seen to have the requisite intent, ability and perhaps even the motive to Obstruct Justice.
Why Did Mueller Not Subpoena Trump to Testify?
Mueller did disclose in the “Special Counsel Report” the reason he did not subpoena Trump in his “Report.” The stated reason: he knew that subpoenaing a “sitting” president, and one as litigious as Trump would be tied up in the courts for years. It was also clear that Mueller knew what had been reported in public by a number of sources: that he needed to start to “wrap-up the investigation,” while being cognizant of the well-documented problem of getting truthful answers from President Trump. Mueller also stated in his “Report” that he believed that he could obtain more reliable information regarding Trump and his activities from other sources.
Yet we need to ask ourselves, Is this how a true democracy should work? Should a sitting president routinely uses his own personal team of lawyers to insulate himself from potential criminal or treasonous conduct and be allowed to solicit allegiance among those who might turn state’s evidence? And is it “proper” for a president to do so in a way to prevent a Special Counsel, tasked with uncovering any impropriety related to presidential or governmental conduct from effectively doing his job? Isn’t the president an elected official who is supposed to bring transparency and accountability to the people of the United States? In looking at all that happened during the Special Counsel’s investigation: refusal to answer questions by staffers, failed attempts to acquire White House information from computers, and inability to personally elicit testimony from the president–the answer appears to be a resounding NO.
Sitting Presidents Should Have No More Rights Than an Average American
The old adage that No One is Above the Law should ring true here. It is almost unfathomable that a sitting President, could not only “refuse” to sit down with a Special Counsel to answer questions pertaining to potential crimes against a nation which the President represents–but simultaneously mock the investigators, allow evidence to be destroyed, and not order his staff to cooperate by answering questions posed by investigators. It is axiomatic that many intelligence officers have worked and died to uncover the truth–yet it appears we have a president who works with his aides and staff of lawyers to hide it.
~It is axiomatic that no one in elected or appointed office should be beyond reproach.~
DOJ Rules Against Indicting a Sitting President
Yet, numerous times within the “Special Counsel” Mueller’s Report he refers to the Department of Justice (DOJ) rule against indicting a sitting president.
The DOJ rule states in part:
“In 1973, the Department of Justice concluded that the indictment and criminal prosecution of a sitting President would unduly interfere with the ability of the executive branch to perform its constitutionally assigned duties, and would thus violate the constitutional separation of powers. No court has addressed this question directly, but the judicial precedents that bear on the continuing validity of our constitutional analysis are consistent with both the analytic approach taken and the conclusions reached. Our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution.”
For more on this topic.
Non-Constitutionally Assigned Duties Can Move a President Closer to Impeachment
This is where the Mueller report makes some important distinctions that can be viewed as an argument to move the impeachment process forward–calling for “Articles of Impeachment” against the president. Such a process would require only a simple majority vote in the US House of Representative in favor of articles of impeachment. Such would certainly circumscribe certain aspects of the president’s conduct, actions and statements he made.
In the Process of Impeachment:
“The House brings impeachment charges against federal officials as part of its oversight and investigatory responsibilities. Individual Members of the House can introduce impeachment resolutions like ordinary bills, or the House could initiate proceedings by passing a resolution authorizing an inquiry. The Committee on the Judiciary ordinarily has jurisdiction over impeachments, but special committees investigated charges before the Judiciary Committee was created in 1813. The committee then chooses whether to pursue articles of impeachment against the accused official and report them to the full House. If the articles are adopted (by simple majority vote), the House appoints Members by resolution to manage the ensuing Senate trial on its behalf. These managers act as prosecutors in the Senate and are usually members of the Judiciary Committee. The number of managers has varied across impeachment trials but has traditionally been an odd number. The partisan composition of managers has also varied depending on the nature of the impeachment, but the managers, by definition, always support the House’s impeachment action.” HistoryHouse.gov
If the House of Representatives would vote to impeach, a trial would then be held in the Senate if the Senate agreed to hold hearings.
However, in light of the absence of documentary computer evidence from the White House, and the fact that neither Mueller nor his team ever able to question the president, and did not subpoena him, and the fact that the president would not answer written questions on Obstruction of Justice presented by the Special Counsel–nor testify on issues relative to the Russia interference and Obstruction of Justice claims–despite all this noncooperation by Trump and his team, and all the pointed assertions by all of the US Intelligence Agencies that verified a concerted effort by Russia to meddle in the US election in 2016—Mueller could neither clear the president of any wrongdoing nor indict him.
In fact, as documented in his report Mueller believed he could not sustain an indictment against the President–or those associated with his campaign regarding the Russia election meddling. But have no doubt–Mueller certainly found Russian meddling as he documented in Volume I of this two volume report–and he also found several instances that can be construed as Obstruction of Justice by President Trump. Moreover, there is no doubt: all the US intelligence agencies found Russian interference as well. As Mueller stated there was an orchestrated and deliberate effort by the Russians to meddle in our 2016 election–with their goal being to assist their favored candidate Donald Trump to win the election. Mueller also made a dire warning like so many in US Intelligence–that the Russian hackers will do it again if left undeterred. Yet it is still uncertain whether the government sponsored Russian hackers were actually able to tamper with the 2016 US Presidential election tally. But it is certain they were able to sow discord among the American people using false social media postings and Facebook to mislead the American people. Mueller–in agreement with ALL US Intelligence Agencies found that the Russian hackers worked for the Russian government–whether Trump or Putin admits it or not.
Regarding the issue of “indicting a sitting president,” there is a widely publicized US Justice Department rule that prohibits a sitting president from being indicted during his tenure in office. Because of the interpretation of this rule, the only Congressional remedy for any egregious behavior by a sitting president or a government official is to launch an impeachment inquiry. Yet that inquiry and impeachment trial is not sacrosanct as some Americans may think, ans it appears that even though the House could move for impeachment–the Senate could decline to hear the case. Theoretically and practically the Senate could flex its muscles and entertain a motion to dismiss which would dispense with the trial before it even began. This could be done with only a majority of the Senate voting down party lines. Constitutionally this could be viewed as a dereliction of duty by the Senate–but we all know now that all things are possible and can come to pass.
This “Impeachment Inquiry” is itself is a multi-step process.
First, as unsettling as the Justice Department rule that there can be no indictment of a sitting president–it aptly coincides with the framers of the US Constitution’s remedy for perceived presidential wrongdoing, found in Article I, outlining the process of presidential impeachment–i.e., inquiry into alleged wrongdoing. Yet, despite all the deliberation and discussion by the framers–it is highly likely they did not envision a Trump-like character who would bend the bounds of legal propriety beyond the norms that the nation and its people have become accustomed.
In fact, the Constitution outlines impeachment with much particularity:
Article I, Sec 2, Clause 5: The House of Representatives shall have the sole power of impeachment.
Article I, Sec 3, Clauses 6-7: The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside. And no person shall be convicted without the concurrence of two-thirds of the members present.
Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law.
Article II, Sec 4: The President, Vice President, and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.
~It important to note, that high crimes and misdemeanors has been interpreted to import a context of impropriety and not a legal standard that many have propounded.~
The Evidence:
Special Counsel Mueller made it clear in his epic Two Volume Report that our American democracy was, and still is imperiled by the Russian government’s ability to interfere in our elections. This should give every American great pause and concern as to the direction that our once “inviolable” nation is taking. Special Counsel Mueller cited the Trump statements that beckoned the Russian government to “find” Hillary Clinton’s lost emails–encouraging them to hack into secure servers that is at the “core” of the US political processes of our sovereign nation. Mueller also cites that within the same hour of Trump’s directive–the Russian government hacked into the DNC (Democratic National Committee) servers in a way that would benefit Trump and act to the detriment of his opposing candidate, Hillary Clinton, and affect the outcome of the election.
Mueller pointed these Russian state-sponsored hackers: boldly attacked our election process, and warned that they would continue to do so again if left unfettered. He also referenced the President’s cavalier attitude toward the Russians and how his cajoled statements could be seen by enemy actors as a not so subtle directive to commit criminal acts favorable to him which others in the intelligence community would see as state-sponsored espionage and intergovernmental theft of protected US election data. Now we must ask ourselves this question:
Would the average person, who is not the president, be likely to be found guilty of treason or criminal conduct for urging crimes against the United States: included directing foreign adversaries to steal American election data? If the answer is “yes” then we have a double-standard in our justice system that bends toward power and privilege.
In any true democracy, a presidential candidate who urges criminal enterprise on an international scale, should swiftly be held accountable for encouraging a criminal act against the United States, a rival presidential caucus, and private individuals. Yet that was not the case.
Mueller found the statements of incitement, calling for the Russians “if they are listening” to “find Hillary Clinton’s emails” as a not so subtle directive to foreign actors to subvert the sanctity of our democratic system and undermine the US electoral process. No doubt such callous acts by a presidential candidate–who then becomes president–and who was the “favored” candidate of the Russian government as cited in the Mueller Report,–who benefitted from the actions of the Russian cyber interference and social media disinformation campaigns on Facebook–is certainly not something the Founding Father’s would embrace as patriotic, or could have even envisioned as a means to commit treason.
Even the most mildly patriotic Americans should see that such cajoling with the Russians is on the precipice of treason–and would no doubt invoke the ire of those who formed our beloved democracy and wrote our Constitution.
Obstruction of Justice & Attempted Coverup: White House Counsel Don McGahn–Pressured to Fire Mueller & Then Pressured to Lie
It is also clear that there were several “attempts” by the president to engage in obstructive acts, including: asking White House Counsel McGahn to get rid of Mueller, then later telling him to deny that he was to fire Mueller–when in fact Don McGahn reported the president’s plan to Mueller himself as documented in his “Report.” Moreover, Mueller corroborated McGahn’s testimony by interviewing others in the administration including but not limited to Rob Porter, the former White House staff secretary and lawyer working for President Trump. As stated earlier, other problematic obstruction issues for Trump include his dangling of pardons for those he would praise, including Manafort and Cohen–which was retracted when Cohen cooperated with the government, and to which Trump promptly referred ti gun as a “rat” because he “flipped” his allegiance to testify for the government.
All the Elements a Perfect Storm Except for Department of Justice (DOJ) Sitting President Rule
It should be clearly apparent to the casual observer that it was the intent of the President to influence indicted individuals: Manafort, Cohen, and influence a grand jury that was meeting to review the evidence brought by Mueller. It is also clear that Mueller found evidence that indicated Trump was engaging in conduct to influence the grand jury deliberations and the”court of public opinion” by his statements praising Manafort and calling him a good guy while flaunting references to pardons aimed at Manafort, while touting his perceived injustices by the government against his former Campaign Manager. Nevertheless, the legal Nexus–or connection to all of Trump’s public statements occurred during critical times when grand juries were convened and reviewing evidence. It can also be seen as a Presidential “attempt to suborn perjury” by having the indicted individuals lie so they could either be exonerated by a grand jury or know that they would be in line for a presidential pardon if they kept quiet and didn’t “flip.” When the President’s longtime attorney, Michael Cohen agreed to cooperate, the president accused Michael Cohen’s family of corruption and criminal activity in what appears to be an attempt to deflect media scrutiny from himself, to his former lawyer. And of course, this all bears on the issue of “Intent”–what was the president’s “intent” in all these situations when he attempts to intermeddle in the Mueller investigation, cause witnesses not to cooperate or to take the Fifth, and not protect evidence that may have been slated for destruction. And let’s not forget the episodes surrounding White House Counsel, Don McGahn. All these instances of “malfeasance” by the President are quite transparent, and can be seen as willful acts of interference with an ongoing investigation. However, the departure from the norm as here, is where the one doing the intermeddling is also the target of the investigation–the President of the United States.
As Mueller clearly stated in his report, to be guilty of Obstruction of Justice, all elements are necessary and all appeared to be met by the President. That three pronged inquiry is comprised off three elements:
1. an Obstructive Act
2. a Nexus to an Impending Proceeding
3. and Intent
Now the Court of Public Opinion can decide for themselves if all the elements of the Crime of Obstruction and/or Witness Tampering were met. Whether the president’s actions, statements, and the evidence presented are worthy of further inquiry by our lawmakers. It should also worry most Americans when a President can put himself beyond the reach of the law and refuse to answer questions by Special Prosecutors who are investigators for it. Even more troubling are issues relative to Obstruction of Justice and Witness Tampering, and Solicitation to Suborn Perjury. We must also learn why White House Computers were missing key information sought by Special Counsel Mueller and his team. Hopefully, Congressional testimony by Robert Mueller will shed more light on the missing data, and the questionable conduct by this president and by those who enabled him to obfuscate the legal process. This includes newly appointed Attorney General Barr who put out to the public his own four page report “sanitizing” the president’s conduct, instead of initially releasing the “executive summary” as prepared by Mueller and his team. The summary outlined the evidence and the reasons leading to his conclusions. In the end, Mueller believed that the DOJ Rules prevented him from prosecuting a sitting president–yet, at the same time he could not exonerate him for many reasons outlined above. In the end, Mueller clearly punted the ball to Congress–now the ball is squarely in their court.
What will Congress do now that Mueller is about to testify? Will have to wait and see–but partisanship is certainly going to pervade the hearings and the American democracy for at least the foreseeable future.
Copyright 2019, Mary Kay Elloian, MBA, JD, Esq. All Rights Reserved.
All original work contained herein requires prior permission from the author before any republication. Any approved publications must link to this article and credit the author.