The Pregnant Together With Implications Of The Mueller Report

I possess got finally finished reading the Mueller Report, slow too with care. In 1 sense, the Report is to a greater extent than accessible than its intimidating four-hundred-plus pages may at kickoff appear. The executive summaries of Volumes I too II are short, clear, too illuminating. Before voting inwards the 2020 primaries or full general election, every literate American mightiness consider reading them.

On the other hand, it may last challenging for readers who are non sophisticated lawyers to figure out what is going on inwards damage of the Report’s bottom lines. The Report repeatedly finds inwards Volume I that agents of the Russian authorities interfered inwards the 2016 election to assist elect Donald Trump too farther finds that high-level Trump displace officials applauded too sought to have Russian help, including inwards secret, yet the Report concludes that the facts were non sufficient to constitute a criminal conspiracy betwixt Russian agents too Trump displace officials. In addition, Volume II of the Report appears to conclude that, on several occasions, President Trump’s conduct satisfied the 3 elements of an obstacle of justice offense inwards violation of federal criminal law—that is, an obstructive act, a nexus to an official proceeding, too corrupt intent—yet the Report declines to expressly conclude that the President obstructed justice.  

With those interpretive difficulties inwards mind, this Post aims to clarify the pregnant too potential implications of the Mueller Report, including whether impeachment is warranted. What follows is long for a spider web log post, but at to the lowest degree this study on the Mueller Report—this meta-report—is substantially shorter than the Mueller Report itself!

1. The Mueller Report is, kickoff too foremost, a will to truthfulness. In the tradition of the real best trial lawyers, the Report is at its best inwards slow too methodically confirming—and, inwards or so cases, finding for the kickoff time—the facts of the matter. The Report systematically refutes the many imitation or misleading statements made past times the President too his surrogates on the subjects of (1) Russian interference inwards the 2016 election to assist the President win, too (2) the numerous statements too actions that the President made or took inwards lodge to impede the federal criminal investigation into Russian interference.

2. Volume I of the Report confirms that in that location tin last no reasonable disagreement almost whether the Russians intervened inwards the 2016 presidential election inwards important ways—specifically, through social media influence campaigns, cyber-hacking, too personal contacts with Trump officials—to assist the President win the election. It is unfortunate that the President soundless refuses to acknowledge the truth of that unanimous finding of the American tidings too police pull enforcement communities, allow lonely usage the neat pulpit of the presidency to condemn Russian interference too warn that in that location volition last serious consequences if it happens again. Judging from the Report, the President plainly fears that calling attending to the fact of Russian interference would telephone telephone the legitimacy of his election into question. Whether or non Russian interference does telephone telephone the legitimacy of his election into question, the facts are what they are. 

More importantly, the President has a constitutional responsibleness to protect our Blue Planet from such unusual intrusions, too that responsibleness extends good beyond his personal interests. That signal is relevant to questions of impeachment for failing inwards his constitutional responsibilities nether Article II, every bit discussed below.

3. Volume I did non uncovering sufficient evidence to constitute a criminal conspiracy between the Trump displace too agents of the Russian authorities (“collusion,” which the President has continuously denied, is non a crime). Volume I found no conspiracy mostly because Trump officials too Russian agents did non come inwards into an limited understanding ahead of fourth dimension to do something clearly illegal. But to repeat, the Report documented well to a greater extent than than 1 hundred interactions betwixt Trump displace officials or advisors too Russians tied to the Russian government, which is real probable unprecedented for a U.S. presidential campaign. In or so of those instances, Russians were offering ways to assist the Trump displace win the election too they were seeking to curry favor with Donald Trump too his advisors. In or so of those instances, the President or his son, Donald Trump Jr., expressed enthusiasm almost receiving Russian help, whether publicly or privately. Accordingly, the thought that the Special Counsel’s investigation of Russian interference was a “witch hunt” against the President too his displace should non last taken seriously. The Russians wanted Trump to win too they wanted to wield influence inwards a time to come Trump administration. What is more, the President too his surrogates sought to cover those facts.

Ironically, what Volume I does clearly constitute is . . . collusion as that term is usually understood exterior the law. Collusion is defined every bit “secret or illegal cooperation or conspiracy, specially inwards lodge to cheat or deceive others.” Volume I demonstrates, repeatedly, “secret . . . cooperation.”  

4. Volume II of the Report, on the President’s actions that potentially qualify every bit obstacle of justice, paints a devastating painting of a serially mendacious President who is partially saved from the consequences of his hapless judgment alone past times his incompetence—specifically, his inability to compel his subordinates to obey his commands to obstruct justice.

5. In or so other illustration of great lawyering, the Report is scrupulous too fair-minded inwards laying out all of the facts too legal analysis with honour to each potential episode of obstacle of justice too inwards making of import distinctions almost the strength of the obstacle instance inwards each episode. Regarding several episodes, the Report set out choice interpretations of the facts, or so of which were helpful to the President. Examples of such episodes include (1) the President’s conduct toward his erstwhile personal lawyer too “fixer” Michael Cohen, too (2) the President’s efforts to preclude world disclosure of a Trump Tower coming together on June 9, 2016 involving Donald Trump Jr., the President’s son-in-law Jared Kushner, displace chairman Paul Manafort, too at to the lowest degree 5 other people, including a lawyer connected to the Russian authorities who promised “dirt” on Hillary Clinton. 

But the Report did non seat substantial arguments on both sides with honour to all of the relevant episodes. Regarding several of them, the Report concluded that all 3 elements of an obstacle of justice offense—an obstructive act, nexus to a proceeding, too corrupt intent— were satisfied. Examples of such episodes include the President’s efforts to (1) burn Special Counsel Robert Mueller, (2) curtail Mueller’s investigation, too (3) lodge White House Counsel Don McGahn to deny that the President had previously ordered McGahn to burn Mueller. In examining those episodes, the Report did everything but denote the conclusion that the President obstructed justice. 

The Report’s reasoning with honour to obstacle of justice appears persuasive. For example, McGahn offered highly credible testimony that the President ordered him to burn Mueller, which qualifies every bit an obstructive act. When the President gave the order, “substantial evidence” (to quote the Report) existed that the President was aware that he was nether investigation past times a federal prosecutor who could acquaint evidence of the President’s criminality to a grand jury, which satisfies the nexus requirement. And “substantial evidence” also existed that the President’s efforts to withdraw the Special Counsel were linked to the Special Counsel’s investigation of the President’s ain conduct, which is indicative of the President’s corrupt intent.

6. The Special Counsel is a great lawyer too a genuine patriot, but he unfortunately savage small inwards several respects. First, he should possess got demanded early on inwards the investigation that the President submit to a personal interview nether oath, every bit Presidents George W. Bush too Bill Clinton did. The Special Counsel waited to a greater extent than than a year-and-a-half to asking such an interview, too when the President declined, the Special Counsel expressed work concern almost delaying completion of the Report due to anticipated litigation with the President over the matter, which seems similar a problematic ground non to demand an interview. As a result, nosotros do non know every bit much almost what the President knew too when he knew it every bit nosotros mightiness otherwise. (Even Sarah Huckabee Sanders, the White House Press Secretary, admitted to the Special Counsel's squad of lawyers that she had been publicly untruthful.) Instead, all nosotros possess got are the President’s answers to written questions, which were presumably prepared past times his lawyers, too which repeatedly decline to direct respond the questions asked past times expressing the President’s lack of recollection.

Second, the Report plainly determined that the President obstructed justice several times, but it refused ever to denote that conclusion. The Report explained that regulations of the U.S. Department of Justice prohibit the Special Counsel from indicting a sitting President too that it would last unfair to the President for the Special Counsel to denote such a conclusion without bringing a criminal instance against him, because the President would too then lack the peril to clear his cite inwards court. But the President is no ordinary dependent acre of an investigation; he is the most powerful individual inwards the country, if non the world. He has choice way at his disposal to defend himself too to endeavour to prove his innocence, every bit he, his surrogates, too his Attorney General, William Barr, possess got been illustrating with their defenses of the President’s conduct.

Third, the Special Counsel did non require the President’s son, Donald Trump Jr., to evidence earlier a grand jury. Nor did the Special Counsel convey displace finance charges against him for conspiring with WikiLeaks or for soliciting Russian assist inwards obtaining data damaging to the Clinton campaign. The Special Counsel’s explanations (for example, that he could non prove the monetary value of the Russian assistance) do non seem specially persuasive, although I confess that I am no practiced on federal displace finance law. Professor Rick Hasen is such an expert, however, too he has strongly criticized the Special Counsel’s conclusion non to pursue displace finance violations against Trump Jr.

Those problems with the Special Counsel’s performance brand me fearfulness that the President’s bullying, intimidation, too obstacle were partially effective inwards persuading the Special Counsel non to fully execute his responsibilities inwards lodge to avoid existence fired, inwards lodge to avoid the perception of a “witch hunt,” or inwards lodge to growth the chances that the Report would reckon the low-cal of day. In other words, the President’s bad behavior may possess got caused the Special Counsel to partially lose his objectivity.

7. So what should hand off now? Is impeachment constitutionally appropriate? Professor Laurence Tribe makes a persuasive instance that the Report “invites Congress to choose action, either through impeachment or past times exposing a disgraced but politically acquitted Trump to criminal prosecution when he is no longer president.” Among other pivotal passages, the Report concludes that “the protection of the criminal justice organisation from corrupt acts past times whatever person—including the President—accords with the primal principal of our authorities that ‘[n]o [person] inwards this Blue Planet is so high that he is inwards a higher house the law.’” (Vol. II, pp. 180-81, quoting U.S. v. Lee, 106 U.S. 196, 220 (1882)).

I do non think that congressional Democrats should lash out inwards anger too rush to impeach the President; in that location is to a greater extent than factfinding, legal analysis, too other normative analysis to do, which the House Judiciary Committee, the House Intelligence Committee, too the House Oversight too Reform Committee volition presumably perform inwards the months ahead. But I am confident that impeachment should last on the table, for at to the lowest degree 4 reasons. 

First, every bit a affair of statutory interpretation, in that location is no ground to think that the broadly worded federal obstacle statute, xviii U.S.C. §1512(c)(2), does non apply to the President. (There are other provisions of federal criminal police pull that are potentially applicable, but that is the main 1 discussed inwards the Report.) Section 1512(c)(2) provides that "[w]hoever corruptly . . . obstructs, influences, or impedes whatever official proceeding, or attempts to do so, shall last fined nether this championship or imprisoned non to a greater extent than than twenty years, or both." It is non clear how to read that provision every bit excluding the President.

Second, applying that statute to the President enhances, rather than undermines, the constitutional separation of powers. Not alone does Article II of the U.S. Constitution non license the President to deed with the corrupt intent of obstructing justice, but the Take Care Clause of Article II, which obliges the President to “take aid that the laws be faithfully executed” (my emphasis), prohibits the President from doing so, every bit I have argued and every bit the Report agrees (see Vol. II, p. 170). Attorney General Barr is exactly incorrect inwards having previously concluded that the President is incapable of obstructing justice when he acts facially inside the reach of his Article II powers to, say, withdraw executive branch officials.

Third, every bit discussed above, in that location were several episodes regarding which the Report persuasively determined that the 3 elements of an obstacle offense were satisfied past times the President. 

Fourth, those obstacle offenses were non mere technical legal violations, nor were they efforts to avoid embarrassment or civil liability with honour to a affair that is primarily personal, such every bit an extramarital affair. President Clinton, who was the minute President inwards American history to possess got been impeached (the kickoff was Andrew Johnson during Reconstruction; President Richard Nixon resigned earlier he could last impeached), had an affair with a White House intern decades younger than him who may possess got been vulnerable to the vast powerfulness differential betwixt them. In my judgment, President Clinton’s underlying conduct (that is, the affair) was legal but immoral—indeed, despicable. His lying almost the affair nether oath, however, was illegal.

Even so, I do non think that President Clinton’s lying nether oath was impeachable because in that location was no obvious damage to the nation. Illegality is relevant to an analysis of the propriety of impeachment, but it is neither necessary nor sufficient for impeachment to last warranted. The Constitution gives the House of Representatives the powerfulness to impeach the President, too it gives the Senate the powerfulness to assay the President too withdraw him from office, because the ultimate inquiry is whether the President engaged inwards political misconduct—not necessarily illegality—so grave every bit to constitute “high Crimes too Misdemeanors.” 

In contrast to President Clinton’s misconduct, President Trump’s misconduct implicates obvious too profound damage to the nation—namely, failing inwards his constitutional responsibilities to protect the land from unusual interference (as covered inwards Volume I of the Report), too attempting to frustrate the Special Counsel’s investigation into Russian interference inwards the 2016 election (as covered inwards Volume II). We cannot claim to last a republic if the President too the residue of us are prepared to permit unusual adversaries to significantly influence the outcomes of our elections. And it is spectacularly shortsighted to believe that such interference volition ever do goodness 1 political party.

Indeed, fifty-fifty if 1 disagrees with the Special Counsel’s legal analyses of criminal conspiracy too obstacle of justice, it is hard to defend the President’s consistent refusals to acknowledge Russian interference too decry it, exactly every bit it is hard to defend the President’s obstructive conduct every bit other than egregious. Nothing is to a greater extent than unsafe to American republic than the President’s influence over federal criminal police pull enforcement, too this President has repeatedly abused that influence.

8. Is impeachment politically wise for the Democrats to pursue? I do non know. It may non be, both because of how divisive an impeachment proceeding would last too because of the potential backlash that may termination if Democrats locomote on without whatever Republican support. I sympathise too partly handgrip with the work concern that, given the threat he poses to the American constitutional system, zero is to a greater extent than of import inwards 2020 than preventing the President’s re-election, either because he loses inwards the Republican primary or because he loses inwards the full general election.

But those fears almost political consequences may last all wrong. And in that location are times when matters of basic constitutional regulation affair to a greater extent than than a political calculus. Just every bit Republicans should possess got considered President Barack Obama’s nomination of Chief Judge Merrick Garland to the U.S. Supreme Court inwards goodness faith fifty-fifty if it was non politically expedient for them to possess got done so, so in that location is a strong declaration that Democrats should non shy away from impeaching the President hither fifty-fifty if doing so mightiness jeopardize the extent of their electoral success inwards 2020. 

To set it bluntly, if impeachment is non an appropriate response to the President’s consistent untruthfulness too abuses of power, which—to repeat—were aimed inwards component at frustrating a federal criminal investigation of vital national importance, too then mayhap fiddling or no Presidential misconduct is impeachable. There is no prophylactic or neutral course of teaching of activeness here. Assuming confirmation of the Report’s findings inwards the House investigations to come, non impeaching this President for the misconduct detailed inwards the Report would set an awful precedent for time to come toleration of gross presidential misconduct, whether during President Trump’s minute term or during the tenure of a time to come untrustworthy President of either party. 

In short, if Democrats desire Americans to choose the Mueller Report seriously, too then Democrats demand to deed similar it deserves to last taken seriously rather than validate the fiction that the President did zero potentially impeachable. And Americans may demand to a greater extent than than exactly the Report to sympathise what is at stake; they may demand to reckon the movie—that is, world hearings.

9. Is conviction too removal appropriate? I do non know at this signal too I do non desire to prejudge the issues. The role of a trial is to homecoming a verdict subsequently considering all of the evidence. If in that location ends upwards existence an impeachment trial, Senators really, genuinely should assay to set partisanship aside too choose seriously their oaths of fidelity to the Constitution. They should review closely the law, the facts, too the application of the police pull to the facts. They should also inquire themselves whether the President engaged inwards political misconduct so serious that it qualifies every bit “high Crimes too Misdemeanors.” 

Senators, similar their colleagues in the House, should also consider the Nixon precedent. President Nixon engaged inwards conduct to a greater extent than oft than non similar, although arguably less serious, than the Presidential misconduct documented in the Mueller Report, too no 1 today seriously argues that the impeachment of President Nixon would non possess got been warranted he he refused to resign. In those less partisan times, in that location was substantial bipartisan back upwards for impeachment every bit the appropriate response to obstructive conduct past times a President aimed at derailing an investigation into displace misconduct.

Having worked inwards the Senate on 4 Supreme Court nominations (including the recent Kavanaugh nomination), I am acutely mindful of the electrical flow limits of constitutional leadership inwards the Senate. But in that location are at to the lowest degree or so Senators who choose their constitutional responsibilities seriously, too history volition guess each Senator on how he or she executes those responsibilities inwards this case. There is virtue inwards requiring each Senator to cast a vote—to publicly choose a seat on whether the President’s conduct is sufficiently acceptable to him or her that the President should rest inwards office.

10. Whatever happens with honour to impeachment, Attorney General Barr should publicly defend his conclusion that the President did non 1 time commit the offense of obstacle of Justice, notwithstanding what the Mueller Report determines inwards Volume II. He should also defend his misrepresentations of the contents of the Mueller Report both inwards his March 24 letter, which he issued inwards the weeks subsequently the study was handed to him, too during his subsequent press conference, which took house an hr earlier the partially redacted version of the Report was publicly released. If he cannot plausibly defend his conclusions too actions, he should resign. The Attorney General is the nation’s principal police pull enforcement officer; he or she is non supposed to last the President’s personal lawyer too “fixer.”

11. Not alone the Attorney General, but Special Counsel Robert Mueller, Deputy Attorney General Rod Rosenstein, too erstwhile White House Counsel Donald McGahn should also last with those called to evidence earlier the relevant congressional committees. Among other things, Americans should listen from them whether they believe that the President adequately resisted Russian interference too obstructed justice—and why.

12. One in conclusion thought, too on a somewhat unlike subject: I genuinely hope the Justices of the U.S. Supreme Court read the Mueller Report. It offers a brilliant illustration of what it way to choose seriously what the President of the USA genuinely says too does. Compare Trump v. Hawaii, 138 S. Ct. 2392 (2018) (purporting to overrule Korematsu v. United States, 323 U.S. 214 (1944), but embracing Korematsu’s deferential scrutiny of Presidential conduct, thereby disabling courts from distinguishing genuine national safety concerns from unconstitutional animus against a minority group).