‘This is the end of my presidency. I’m fucked.' - A Yellow Wall Nightmare

[Athos_131]

Bill Barr refused to do a lot of his jobs out of cowardice.

Reminds me of something here...

I can't place my finger on it.

#Resist

[Athos_131]

William Barr is helping to cover up Trump’s biggest crime of all

As the political world struggles to digest the enormity of Attorney General William P. Barr’s profound corruption of his role on President Trump’s behalf, it’s worth stepping back and surveying a distilled version of what we know, now that special counsel Robert S. Mueller III’s redacted report has been released:

Russia launched a massive attack on our political system, undermining the integrity of our elections, to elect Donald Trump president.

U.S. law enforcement launched an investigation primarily aimed at getting to the bottom of that attack so that we could fully reckon with what happened and ensure the integrity of future elections.

Trump tried in multiple ways to derail that accounting of this massive attack on our political system — and then tried to bury the truth about that derailment effort — in a manner that was at best corrupt, and at worst criminal.

The simplest way to understand much of what Barr has done — and what Trumpworld will be doing to impede inquiries going forward — is that it’s mainly aimed at obscuring the broad contours of that larger story.

The point here is not that everything they’re doing is deliberately aimed at this end. It’s that this bigger story is at the center of everything — and by “biggest crime of all,” I mean Trump’s most monstrous wrong — and thus efforts to keep smaller truths from coming out will inevitably be about obscuring that larger story.

Here’s how:

The Barr summary. Barr’s summary quoted the Mueller report’s claim that he had not established criminal conspiracy, but Barr omitted the sentence fragment saying the Trump campaign “expected” to “benefit” from Russian help. Barr also took Mueller’s words out of context to omit the conclusion that Trump was motivated to obstruct the investigation because it “would call into question the legitimacy of his election” by spotlighting Russian interference.

This allowed Trump to claim total exoneration on the details, but on that larger story as well: It obscured Trump and his campaign’s embrace of Russian interference and his extensive efforts to prevent an accounting of it. We now know Mueller was deeply concerned that this had profoundly misled the public about the gravity of what he had found, that is, in a big-picture manner.

Barr’s clearance of Trump on obstruction. At the hearing, Barr engaged in extraordinary verbal gymnastics to argue that, when Trump ordered former White House counsel Donald McGahn to get Mueller fired — which he then pressed McGahn to lie about — he didn’t actually quite mean that.

This is deeply questionable, because in this case, Mueller flatly concluded there was “substantial evidence” Trump had acted with corrupt intent, “to deflect or prevent further scrutiny.” But as legal experts tell Carol D. Leonnig, what’s crucial here is that Barr went beyond claiming Trump shouldn’t have been indicted, per Justice Department policy, and strained to argue that the underlying misconduct itself was no big deal.

Similarly, in a big moment, Barr declared Trump could terminate the investigation if he believed he was being “falsely accused,” and it wouldn’t display “corrupt intent.” This basically puts Trump above the law, but, like the above example, it also clears Trump of the underlying misconduct — Trump’s efforts to derail an investigation into a Russian attack on our election were no biggie, because he decreed he’d been unfairly swept up in that investigation.

Barr’s constant efforts to downplay the importance of the original investigation itself are important to keep in mind. Which leads us to...

The replacement narrative. When Barr validates Trump’s conspiracy theories about “spying” on his campaign, he’s propping up the alt-narrative that Trumpworld has been spinning — that the investigation was illegitimately aimed at removing Trump, and that investigators corruptly overlooked the real criminal — Hillary Clinton.

The idea that there was no legitimate basis for the probe is a backdoor way of saying that the Russian assault on our political system, irrespective of any criminal conspiracy with it, was not worth investigating (and by extension, that tacit Trumpworld collusion with it is also no biggie).

Indeed, Barr has basically copped to all those things. At the hearing, Barr validated the idea that Clinton may have been the real colluder, cast doubt on the investigation’s genesis, and even declined to say that the Trump campaign’s embrace of Russian help mattered.

Many Republicans are all in with this narrative, which you saw when GOP senators used the hearing to steer the subject back to Clinton as the real colluder and the deep-state plot against Trump.

What’s stunning about all this is that Barr does not appear to be a conspiracy theorist. He’s playing footsie with this alt-narrative for cynical instrumental purposes, and these other Republicans probably are as well.

The coming obstruction. Imagine Mueller testifying to Congress about the relative merits of the real narrative (Trump corruptly impeded an investigation into an attack on our election and then tried to cover that up) versus the alt-narrative (deep-state coup), and you see why Barr is reluctant to agree to a date for Mueller’s testimony.

Similarly, the White House might try to block McGahn from testifying — since he might vividly inform the public on the true nature of Trump’s efforts to impede that investigation into Russian sabotage.

Meanwhile, Trump’s blockading of Democratic efforts to access his finances — through closeting his tax returns and lawsuits against outside entities — may be about obscuring foreign financial entanglements, an apparent target of Democratic investigations.

Trump continues to refuse to acknowledge the Russian attack ever happened, because so doing would diminish the greatness of his victory. Worse, this has cramped the government’s efforts to combat the next attack. Barr is helping to quasi-validate this, while minimizing Trump’s corrupt and likely criminal efforts to bury a reckoning with all of it.

It’s doubtful that this will all go according to plan. There are too many constraints built into the system. There are too many ongoing investigations for Trump to outrun. But we should be clear about what’s being attempted: The stage is set for an investigation of the investigators, and the supplanting of a real crime with a fictional one.

#Resist

[Athos_131]

The Mueller report, annotated

Click Here For A PDF Version

#Resist

Weird, Yellow Wall is afraid to comment in this thread.  It contains all the information needed to make a conclusion.

#Resist

[Athos_131]

Five Things I Learned From the Mueller Report

I spent the week after the release of Special Counsel Robert Mueller’s report going through it section by section and writing a kind of diary of the endeavor. My goal was less to summarize the report than to force myself to think about each factual, legal, and analytical portion of Mueller’s discussion, which covers a huge amount of ground.

Here are five conclusions I drew from the exercise:

The president committed crimes.

There is no way around it. Attorney General William Barr’s efforts to clear President Donald Trump, both in his original letter and in his press conference the morning of the report’s release, are wholly unconvincing when you actually spend time with the document itself.

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

Consider only two examples. The first is the particularly ugly section concerning Trump’s efforts to get then–Attorney General Jeff Sessions to “unrecuse.”

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

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

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

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

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

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

Mueller acknowledges that there is “some evidence” that the president simply thought the story was wrong and was proceeding on his memory. But Mueller is pretty clear that the weight of evidence “cuts against that understanding,” though—as always—he stops short of making that judgment explicit. Mueller previously concluded that McGahn’s underlying story was amply supported by the evidence, while it’s hard to believe the president would simply have forgotten an effort to fire Mueller. As to the president’s intent, Mueller is pretty unabashed: “Substantial evidence indicates that in repeatedly urging McGahn to dispute that he was ordered to have the Special Counsel terminated, the President acted for the purpose of influencing McGahn’s account in order to deflect or prevent scrutiny of the President’s conduct toward the investigation.”

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

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

The president also committed impeachable offenses.

Crimes and impeachable offenses are not the same thing, though they are overlapping categories. Some of the most obviously impeachable offenses described in the Mueller report are likely criminal as well. Some may not be. If I were a member of Congress, I would be thinking about which portions of the report describe, in my opinion, the most unacceptable abuses of power. A few stand out to me.

The first is the circumstances of, and run-up to, the firing of former FBI Director James Comey. While this fact pattern is complicated for criminal purposes, as a matter of impeachment, it’s very simple indeed. The president of the United States, seven days after taking office, demanded loyalty from his FBI director. Shortly thereafter, he isolated Comey in order to ask that he drop a sensitive FBI investigation in which Trump had a personal interest. The president then leaned on Comey to make public statements about his own status in the investigation. And when he couldn’t get Comey to do so, he recruited the deputy attorney general to create a pretext for Comey’s removal.

While there may be viable technical defenses against a criminal charge here, there simply is no plausible way to understand this fact pattern as a good-faith exercise of presidential power. It describes a frank abuse of power: a sustained demand for a wholly self-interested investigative outcome; a willingness to disrupt a crucial institution to get that outcome, to retaliate against an official who would not deliver it, and to set the entire apparatus of the White House to lying about the reason for the action; and the recruitment of senior Justice Department officials to create a pretextual paper trail to support it. I believed this was impeachable conduct at the time. The Mueller report reinforces that belief.

Ditto the effort to get Sessions to investigate Hillary Clinton. Mueller does not disentangle this effort from the attempt to get Sessions to reassert control of the Russia investigation. Let’s do so here: Even as he was trying to get Sessions to protect him from the FBI, Trump was also trying to induce Sessions to investigate his political opponents.

This is not obstruction of justice in any criminal sense. It’s rather the opposite of obstruction of justice; it’s the initiation of injustice. So I don’t think it’s plausibly sound in terms of criminal law. But it is molten-core impeachment territory. Consider: The president of the United States was trying to induce the attorney general of the United States to initiate a criminal investigation based on no known criminal predicate against a private citizen whom he happened to dislike. This was not rhetorical. It was not a joke. And if it is not unacceptable to Congress, then no member of Congress can say he or she was not warned when some future attorney general complies with a presidential request to launch an investigation against such a member of Congress.

A third example is the president’s public dance with Paul Manafort, in which he dangled the possibility of a pardon and praised Manafort’s bravery for not “flipping,” and in which his private counsel allegedly suggested that Manafort would be taken care of. Notably, Trump got what he wanted in this case. Manafort did not end up cooperating to Mueller’s satisfaction. Indeed, Mueller concluded that Manafort had breached his plea deal by failing to cooperate and by lying to investigators. So the reality here may well be that the president’s obstructive conduct did, in fact, obstruct the investigation. The president hinted that Manafort should not “flip” and that he would take care of him—and Manafort acted in a fashion consistent with his relying on those assurances. I think this activity, assuming it can be proved, is criminal.

It is also a grotesque abuse of power for impeachment purposes. The spectacle of the president of the United States publicly and repeatedly urging witnesses not to cooperate with federal law enforcement and entertaining the notion of using his Article II powers to relieve them of criminal jeopardy or consequences if they do not cooperate is one of the most singular abuses of the entire Trump presidency. Again, one has to ask of Congress what is unacceptable in a president’s interaction with an investigation if this conduct is tolerable?

In short, the question of the prudential wisdom of impeachment politically may be a hard one for members of Congress, but the impeachability of the conduct described by Mueller is not a close call. This is heartland impeachment material—the sort of conduct the impeachment clauses were written to address.

Trump was not complicit in the Russian social-media conspiracy.

Separating the wheat from the chaff is important, so let’s do so. While Trump has a great deal to answer for, Mueller unambiguously clears him—clears in the true sense of the word—of involvement in Russian efforts to interfere in the U.S. election by means of the Internet Research Agency’s social-media campaign.

Yes, the IRA duped some Trump campaign figures into promoting the group’s material, but none of those Trump campaign figures appears to have done so deliberately. Mueller’s statement that the “investigation did not identify evidence that any U.S. persons knowingly and intentionally coordinated with the IRA’s interference operations” is a stronger one than the language he uses elsewhere to indicate that evidence is insufficient to prove something. Here he actually seems to be saying that the investigation did not produce evidence at all of knowing participation in the Russian scheme by U.S. persons. We should take that at face value.

The story the report tells is disturbing on its own terms, however. It is a story of failed immunity on the U.S. side to outside interference—and aggressive Russian exploitation of the absence of democratic antibodies to fight off such manipulation. The IRA was able to reach tens of millions of U.S. persons using its social-media accounts. It was able to trick prominent people into engaging with and promoting its dummy accounts. It was able to exploit social-media companies. And it was able to make a series of contacts with Trump campaign affiliates and to get those figures—plus Trump himself—to engage with and promote social-media content that was part of a hostile power’s covert efforts to influence the American electorate. Though not intentional or criminal on the U.S. side, this pattern shows a troubling degree of vulnerability on the part of the U.S. political system to outside influence campaigns.

The solution to this problem is not obvious. The social-media companies obviously have a role to play in better policing their platforms. But some of the solution has to come from individuals, particularly prominent individuals, who need to take more care about sharing on social media any content of uncertain provenance. That obviously includes the president and his family members and campaign staff. But the problem here is far broader than Trump. And the solution needs to be as well.

Trump’s complicity in the Russian hacking operation and his campaign’s contacts with the Russians present a more complicated picture.

No, Mueller does not appear to have developed evidence that anyone associated with the Trump campaign was involved in the hacking operation itself. And no, the investigation did not find a criminal conspiracy in the veritable blizzard of contacts between Trumpworld and the Russians. But this is an ugly story for Trump.

Here’s the key point: If there wasn’t collusion on the hacking, it sure wasn’t for lack of trying. Indeed, the Mueller report makes clear that Trump personally ordered an attempt to obtain Hillary Clinton’s emails; and people associated with the campaign pursued this believing they were dealing with Russian hackers. Trump also personally engaged in discussions about coordinating public-relations strategy around WikiLeaks releases of hacked emails. At least one person associated with the campaign was in touch directly with the Guccifer 2.0 persona—which is to say with Russian military intelligence. And Donald Trump Jr. was directly in touch with WikiLeaks—from whom he obtained a password to a hacked database. There are reasons none of these incidents amount to crimes—good reasons, in my view, in most cases, viable judgment calls in others. But the picture it all paints of the president’s conduct is anything but exonerating.

Call it Keystone Kollusion.

On July 27, 2016, Trump in a speech publicly called for Russia to release Hillary Clinton’s missing server emails: “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing.” The reference here was not to the hacking the GRU had done over the previous few months but to the hypothesized compromise of Clinton’s private email server some time earlier—an event that there is no particular reason to believe took place at all.

The GRU, like many Trump supporters, took Trump seriously, but not literally. “Within approximately five hours of Trump’s announcement,” Mueller writes, “GRU officers targeted for the first time Clinton’s personal office.” In other words, the GRU appears to have responded to Trump’s call for Russia to release a set of Clinton's emails the Russians likely never hacked by launching a new wave of attacks aimed at other emails.

Trump has since insisted that he was joking in that speech. But the public comments mirrored private orders. After the speech, “Trump asked individuals affiliated with his Campaign to find the deleted Clinton emails,” the report states. “Michael Flynn … recalled that Trump made this request repeatedly, and Flynn subsequently contacted multiple people in an effort to obtain the emails.”

Two of the people contacted by Flynn were Barbara Ledeen and Peter Smith. Ledeen had been working on recovering the emails for a while already, Mueller reports. Smith, only weeks after Trump’s speech, sprang into action himself on the subject. Ledeen ultimately obtained emails that proved to be not authentic. Smith, for his part, “drafted multiple emails stating or intimating that he was in contact with Russian hackers”—though Mueller notes that the investigation “did not establish that Smith was in contact with Russian hackers or that Smith, Ledeen, or other individuals in touch with the Trump Campaign ultimately obtained the deleted Clinton emails.”

In other words, Trump wasn’t above dealing with Russian hackers to get Hillary Clinton’s emails. The reason there’s no foul here, legally speaking, is only that the whole thing was a wild conspiracy theory. The idea that the missing 30,000 emails had been retrieved was never more than conjecture, after all. The idea that they would be easily retrievable from the so-called dark web was a kind of fantasy. In other words, even as a real hacking operation was going on, Trump personally, his campaign, and his campaign followers were actively attempting to collude with a fake hacking operation over fake emails.

Then there are the more-than-100 pages detailing Russian contacts and links with the Trump campaign and business. Mueller looks at these through a legal lens; he’s a prosecutor, after all, looking to answer legal questions. But I found myself reading it through a very different lens: patriotism. 

Mueller concludes, after detailing the contacts, that “the investigation established multiple links between Trump Campaign officials and individuals tied to the Russian government. Those links included Russian offers of assistance to the Campaign. In some instances, the Campaign was receptive to the offer, while in other instances the Campaign officials shied away. Ultimately, the investigation did not establish that the Campaign coordinated or conspired with the Russian government in its election-interference activities.”

It is not hard to see how he came to the conclusion that charges for conspiracy would not be plausible based on the contacts Mueller describes. For starters, a number of the individual incidents that looked deeply suspicious when they first came to light do look more innocent after investigation. These include the change in the Republican Party’s platform on Ukraine at the Republican National Convention, for example, as well as Jeff Sessions and other campaign officials’ various encounters with the omnipresent former Russian ambassador Sergey Kislyak. On these matters, Mueller does seem to have found that nothing untoward happened.

Even those incidents that don’t look innocent after investigation don’t look like criminal conspiracy either. So, for example, George Papadopoulos found out about the Russians having “dirt” on Clinton in the form of “thousands of emails,” but he does not appear to have reported this to the campaign—though he was trying to arrange a Trump-Putin meeting at the time. Even if he had reported it to the campaign, the Trump campaign’s being aware of Russian possession of hacked Clinton emails wouldn’t constitute a conspiracy—the campaign, after all, never did anything about it.

The Trump Tower meeting is one of the most damning single episodes discussed: The campaign’s senior staff took a meeting with Russian representatives who promised disparaging information on Clinton as part of the Russian government’s support of Trump. Yet even here, while the campaign showed eagerness to benefit from Russian activity, the meeting was unproductive and nothing came of it. Where exactly is the conspiracy supposed to be? I can think of a number of possible answers to this question, and Mueller entertained one related to campaign-finance violations, but I certainly can’t argue that an indictment is an obvious call.

So, too, the extended negotiations over Trump Tower Moscow. The investigation makes clear that Trump—who spent the campaign insisting he had “nothing to do with Russia”—was lying through his teeth the whole time. He was, in fact, seeking Russian presidential support for his business deal through June 2016. But it’s not illegal to have contacts with Russians, including Putin’s immediate staff, to try to build a building. And it’s not obvious how this sort of “collusion” with the Russian government could amount to coordination or conspiracy on concurrent Russian electoral interference.

At the same time, Mueller here is far more reticent than he is about the IRA operation. He does not clear the president or his campaign. There are, in my view, two major reasons for the difference between his conclusions on these matters and his conclusions about the IRA operation, for which he affirmatively finds no evidence of conspiracy. The first is the sheer volume of contacts, which is truly breathtaking. These contacts were taking place even as it was publicly revealed that the Russians had been behind the Democratic Party hacks, even as the releases of emails took place, even as the incumbent administration was publicly attributing the attacks to Russia, even as—through the transition—the outgoing administration was sanctioning Russia for those attacks. The brazen quality of meeting serially with an adversary power while it is attacking the country and lying about it constantly militates against a stronger conclusion that there is no evidence of conspiracy—at least not in the absence of solid answers to every question.

And not every question got a solid answer. The Mueller team was clearly left unsatisfied that it understood all of Carter Page’s activities while he was in Moscow in July 2016, for example. Similarly, the office reports in its discussion of the Trump Tower meeting that Donald Trump Jr. “declined to be voluntarily interviewed by the Office.” This line is followed by a redaction for grand-jury information, raising the question of whether Trump Jr. asserted his Fifth Amendment right against self-incrimination or indicated an intent to do so.

And then there’s Paul Manafort. Mueller is candid that he was unable to determine why Manafort was having campaign polling data shared with his long-time employee, Konstantin Kilimnik. Mueller was also unable to determine what to make of repeated conversations between Kilimnik—who has alleged ties to Russian intelligence—and Manafort about a Ukrainian peace plan highly favorable to Russia. And while Mueller could not find evidence of Manafort’s passing the peace plan along to other people in the campaign, he notes that the office was unable “to gain access to all of Manafort’s electronic communications” because “messages were sent using encryption applications” and that Manafort lied to the office about the peace plan. As for the polling data, “the Office could not assess what Kilimink (or others he may have given it to) did with it.” So while the office did not establish coordination in this area, it was clearly left with residual suspicions—and with unanswered questions.

In other words, on the legal side, the evidence isn’t all that close to establishing coordination in the sense that conspiracy law would recognize, either on the hacking side or with respect to the contacts. But the positive enthusiasm for engaging Russian hackers over emails, the volume of contacts, the lies, and the open questions make it impossible to say no evidence of conspiracy exists.

The really interesting question here is not legal. It is historical and political: How should we understand the relationship between Trump and Russia? Put another way, what is the story these contacts tell if it’s not one of active coordination? They surely aren’t, in the aggregate, innocent. They aren’t normal business practice for a presidential campaign. What are they?

For what it’s worth, here’s what I see in the story Mueller has told on Trump engagement with the Russians over the hacking. I see a group of people for whom partisan polarization wholly and completely defeated patriotism. I see a group of people so completely convinced Hillary Clinton was the enemy that they were willing to make common cause with an actual adversary power who was attacking their country to defeat her.

To me, it matters whether the conduct violated the law only in the pedestrian sense of determining the available remedies for it—and in guiding whether and how we might have to change our laws to prevent such conduct in the future. I don’t know the right word for this pattern of conduct. It’s not collusion, though it may involve some measure of collusion. It’s not coordination or conspiracy. But in Clinton, Democrats, and liberals, the Trump campaign saw a sufficiently irreconcilable enemy that it looked at Vladimir Putin and saw a partner. That may not be a crime, but it is a very deep betrayal.

The counterintelligence dimensions of the entire affair remain a mystery.

Because the Mueller investigation was born out of a counterintelligence investigation, there has been an enduring impression that it had both criminal and counterintelligence elements. I have assumed this myself at times. How these two very different missions integrated within the Mueller probe has been much discussed. The Mueller report answers this question, and the answer is actually striking—and from my point of view alarming: The Mueller investigation was a criminal probe. Full stop.

It was not a counterintelligence probe. Mueller both says this directly and also describes how the counterintelligence equities were handled. Here’s how Mueller describes his investigation: “Like a U.S. Attorney’s Office, the Special Counsel’s Office considered a range of classified and unclassified information available to the FBI in the course of the Office’s Russia investigation, and the Office structured that work around evidence for possible use in prosecutions of federal crimes.” A counterintelligence investigation is not structured around evidence for possible use in prosecutions of federal crimes.

Mueller then answers the question of what happened to the counterintelligence components of the investigation: The FBI took responsibility for them. “From its inception,” Mueller writes, “the Office recognized that its investigation could identify foreign intelligence and counterintelligence information relevant to the FBI’s broader national security mission. FBI personnel who assisted the Office established procedures to identify and convey such information to the FBI.”

The special counsel’s office and the FBI Counterintelligence Division had regular meetings to facilitate this transfer of information. “For more than the past year,” Mueller goes on, “the FBI also embedded personnel at the Office who did not work on the Special Counsel’s investigation, but whose purpose was to review the results of the investigation and to send—in writing—summaries of foreign intelligence and counterintelligence information to FBIHQ and FBI Field Offices.” The report deals only, Mueller says, with “information necessary to account for the Special Counsel’s prosecution and declination decisions and to describe the investigation’s main factual results.”

In other words, the Mueller investigation was a criminal probe only. It had embedded FBI personnel sending back to the FBI material germane to the FBI’s counterintelligence mission. But Mueller does not appear to have taken on the counterintelligence investigative function himself.

This leaves me worried. After the blood-letting at the bureau that saw the entire senior leadership replaced precisely as it was engaged with counterintelligence questions involving Trumpworld and Russia, who at the bureau now is going to push such questions? The incentive structure at the FBI cannot favor senior leadership carrying the ball on this. It also cannot favor individual agents allowing themselves to get assigned to matters that would put them in the president’s cross-hairs.

So I worry about a counterintelligence gap. Mueller, the person with the independence to take this matter on, construed his role narrowly as a prosecutor and set up a one-way street for counterintelligence information to go back to the FBI. And the FBI, the entity with the mandate, has every incentive to play it cautious.

It would be the deepest of ironies if the Mueller investigation showed evidence that the president had committed crimes and had committed impeachable offenses, and if he had painted a remarkable historical portrait of the relationship between Trumpworld and the Russian government, but if at the same time, the core counterintelligence concerns that gave rise to it and that have haunted the Trump presidency from the beginning went unaddressed.

#Resist

[Athos_131]

Notes on the Mueller Report: A Reading Diary

Thursday I surveyed the entire Mueller report. I read some sections carefully; I skimmed others. My job was to anchor Lawfare’s initial coverage, so I needed to have a sense of the big picture, as well as detailed knowledge of certain findings and arguments. Starting Friday, however, I am reading the entire document carefully, starting at the beginning. I’m writing up my thoughts as I go in this post. There will be no cohesive argument to this journal. It will simply be a collection of my observations, questions and thoughts as I go through the document. It will get long. I will not attempt to summarize the underlying document, merely to reflect on it, but I will organize this post by document section. I will update the post as I read. I hope people find it useful.

The following table of contents are links to the sections of this journal, which correspond to sections of the report itself:

Introduction to Volume I

The Special Counsel Investigation

Russian "Active Measures" Social Media Campaign

GRU Hacking Directed at the Clinton Campaign

Russian Government Links to and Contacts with the Trump Campaign

Prosecution and Declination Decisions

Introduction to Volume II

Background Legal and Evidentiary Principles

Factual Results of the Obstruction Investigation

B. The President's Conduct Concerning the Investigation of Michael Flynn

C. The President's Reaction to Public Confirmation of the FBI's Russia Investigation

D. Events Leading Up to and Surrounding the Termination of FBI Director Comey

E. The President's Efforts to Remove the Special Counsel

F. The President's Efforts to Curtail the Special Counsel Investigation

G. The President's Efforts to Prevent Disclosure of Emails About the June 9, 2016, Meeting Between Russians and Senior Campaign Officials

H. The President’s Further Efforts to Have the Attorney General Take Over the Investigations

I. The President Orders McGahn to Deny That the President Tried to Fire the Special Counsel

J. The President’s Conduct Toward Flynn, Manafort, [REDACTED]

K. The President’s Conduct Involving Michael Cohen

L. Overarching Factual Issues

Legal Defense to the Application of Obstruction-of-Justice Statutes to the President

This is a short little section, barely two pages, but it has several interesting items in it, starting with Mueller’s almost casual endorsement of the FBI’s historical account of the Russia investigation’s origins. In the middle of page 1, Mueller describes the investigation as beginning when “a foreign government contacted the FBI about a May 2016 encounter with Trump Campaign foreign policy advisor George Papadopoulos.” Papadopoulos, Mueller writes, had “suggested to a representative of that foreign government that the Trump Campaign had received indications from the Russian government that it could assist the Campaign through the anonymous release of information damaging to Democratic presidential candidate Hillary Clinton.” It was that information, the paragraph concludes, that “prompted the FBI on July 31, 2016, to open an investigation into whether individuals associated with the Trump Campaign were coordinating with the Russian government in its interference activities.”

Sorry, Devin Nunes. There's no mention of the Steele Dossier.

Lower down on the same page begins the actual quotation that Attorney General William Barr quoted partially—and, as it turns out, quite distortedly—in his letter of March 24, 2019 announcing the top-line conclusions of the report. Barr wrote: “The Special Counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election. As the report states: ‘The investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.’” Here’s what Mueller actually wrote: “The investigation also identified numerous links between the Russian government and the Trump Campaign. Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

Oh.

New York Times reporter Charlie Savage has an excellent piece identifying the rather numerous times Barr selectively and distortively quoted Mueller to convey something friendlier to the president than the actual report conveys.

Barely a paragraph later, Mueller clarifies something else that should embarrass Barr. At his press conference Thursday, Barr repeatedly described the special counsel’s office as having found no evidence of Trump campaign “collusion” with Russia. Mueller’s report introduction throws two wrenches into this account. First, Mueller makes clear that when the report concludes that “the investigation did not establish particular facts” this “does not mean there was no evidence of those facts.”

Oh.

In the next paragraph, Mueller articulates his understanding of the relationship between the terms “collusion,” “coordination” and “conspiracy”:

In evaluating whether evidence about collective action of multiple individuals constituted a crime, we applied the framework of conspiracy law, not the concept of “collusion.” In so doing, the Office recognized that the word “collud[e]” was used in communications with the Acting Attorney General confirming certain aspects of the investigation's scope and that the term has frequently been invoked in public reporting about the investigation. But collusion is not a specific offense or theory of liability found in the United States Code, nor is it a term of art in federal criminal law. For those reasons, the Office’s focus in analyzing questions of joint criminal liability was on conspiracy as defined in federal law. In connection with that analysis, we addressed the factual question whether members of the Trump Campaign “coordinat[ed]”—a term that appears in the appointment order—with Russian election interference activities. Like collusion, “coordination” does not have a settled definition in federal criminal law. We understood coordination to require an agreement—tacit or express—between the Trump Campaign and the Russian government on election interference. That requires more than the two parties taking actions that were informed by or responsive to the other's actions or interests. We applied the term coordination in that sense when stating in the report that the investigation did not establish that the Trump Campaign coordinated with the Russian government in its election interference activities.

Oh.

In other words, when the attorney general states that “there was in fact no collusion,” that the special counsel found “no underlying collusion with Russia,” that Mueller “did not find that the Trump campaign or other Americans colluded in the Russian schemes,” and that Mueller “did not find any conspiracy to violate U.S. law involving Russia-linked persons and any persons associated with the Trump campaign,” Barr is being misleading both as to what Mueller examined and as to what Mueller does and does not mean when he says he did not establish or find something.

 

The Special Counsel Investigation

The first notable thing about this section is that it very clearly lays out how Mueller understood and operationalized his jurisdiction—which was both quite limited and which Mueller largely did not seek to expand. This makes the Mueller investigation highly unusual in the history of special counsel investigations, which we normally think of as hoarding jurisdiction and as ever-expanding in their scope.

Mueller, by contrast, makes clear that his jurisdiction was narrow. It was defined by a series of orders and clarifications from Rod Rosenstein, the first of which defined three elements: (1) “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” (2) any matters that arose or may arise directly from the investigation, and (3) “any other matters within the scope of 28 C.F.R. § 600.4(a)”—which covers efforts to obstruct special counsel investigations. To this basic mandate, Rosenstein later clarified two points in a separate letter: He made clear that it included allegations involving Carter Page, Paul Manafort and George Papadopoulos in their possible “collusion” with Russia, and he made clear that it included as well allegations about Manafort’s dealings with Ukraine and another corruption matter. Rosenstein later wrote an additional letter clarifying that the original order also applied to Michael Cohen, Richard Gates, Roger Stone and two other names that are redacted for privacy reasons.

Mueller has hewed closely to this original mandate. Unlike prior special counsel’s offices, as matters came to him that pushed the edges of his jurisdiction, he referred them to other Justice Department components. He also referred matters at the end of his investigation that were ongoing. A list of all of the referrals appears in Appendix D of the report, which lists 10 transfers of cases begun by the special counsel’s office and an additional 14 “referrals,” which Mueller describes as covering “evidence of potential criminal activity that was outside the scope of the Special Counsel’s jurisdiction.” These referrals are, with the exception of the Michael Cohen campaign finance matters and the Greg Craig Foreign Agents Registration Act matter, all redacted.

Call them children of the Mueller investigation—and keep a close eye on them.

A note on staffing. President Trump has repeatedly referred to the Mueller investigation as composed of 13 or 17 or 18 “angry Democrats,” so let’s get on the record exactly how the Mueller investigation was staffed in reality. There were 19 lawyers at the investigation’s “high point”—five from private practice and 14 on detail from elsewhere in the Justice Department. They had a filter team from the department and FBI to screen for privileged material. They had three paralegals. They had an administrative staff of nine. And they worked alongside “approximately 40 FBI agents, intelligence analysts, forensic accountants” and others assigned to the office. FBI staff “remained under FBI supervision at all times; the matters on which they assisted were supervised by the Special Counsel.”

There’s no word about any party affiliation of any of the staff—much less about their anger level.

There is word, however, about an important matter that has been something of a mystery throughout the Mueller investigation: What sort of investigation was this?

Because the Mueller investigation was born out of a counterintelligence investigation, there has been an enduring impression that it had both criminal and counterintelligence elements. I have assumed this myself at times. How these two very different missions integrated within the Mueller probe has been much discussed. This section of the report answers this question, and the answer is actually striking: The Mueller investigation was a criminal probe. Full stop.

It was not a counterintelligence probe. Mueller both says this directly in this section and also says what happened to the counterintelligence investigation. Here’s how Mueller describes his investigation: “The Special Counsel structured the investigation in view of his power and authority ‘to exercise all investigative and prosecutorial functions of any United States Attorney.’ 28 C.F.R, § 600.6. Like a U.S. Attorney's Office, the Special Counsel’s Office considered a range of classified and unclassified information available to the FBI in the course of the Office's Russia investigation, and the Office structured that work around evidence for possible use in prosecutions of federal crimes ...” (emphasis added).

At the bottom of page 13, Mueller then answers the question of what happened to the counterintelligence components of the investigation. They stayed in the FBI:

From its inception, the Office recognized that its investigation could identify foreign intelligence and counterintelligence information relevant to the FBI’s broader national security mission. FBI personnel who assisted the Office established procedures to identify and convey such information to the FBI. The FBI’s Counterintelligence Division met with the Office regularly for that purpose for most of the Office’s tenure. For more than the past year, the FBI also embedded personnel at the Office who did not work on the Special Counsel’s investigation, but whose purpose was to review the results of the investigation and to send—in writing—summaries of foreign intelligence and counterintelligence information to FBIHQ and FBI Field Offices. Those communications and other correspondence between the Office and the FBI contain information derived from the investigation, not all of which is contained in this Volume. This Volume is a summary. It contains, in the Office’s judgment, that information necessary to account for the Special Counsel’s prosecution and declination decisions and to describe the investigation’s main factual results.

In other words, the Mueller probe was a criminal probe only. It had embedded FBI personnel sending back to the FBI material germane to the FBI’s counterintelligence mission. But Mueller does not appear to have taken on any counterintelligence investigative function. And the report is purely an account through the lens of the criminal law. This partly, though only partly, explains why there is no classified information in the report, which contains no “portion markings” anywhere.

This point has a major analytical consequence for the entire way one reads the Mueller report: Don’t assume it answers counterintelligence questions. Where it concludes that someone didn’t engage in a conspiracy, don’t confuse that with answering the question of whether there is some counterintelligence risk associated with that person. Instead, read the report only as an account of the disposition of the criminal questions associated with L'Affaire Russe. But keep in mind the following question as well: If I were an FBI counterintelligence agent and I knew this material, how concerned would I be about the individual in question?

I will try to flag such questions as I go through the report.

 

Russian “Active Measures” Social Media Campaign

The Mueller report’s discussion of the Russian social media campaign is the section of the report that is most truly exonerating of Trump and his campaign—at least in the criminal sense. Yes, the Russians duped Trump campaign figures into promoting their material, but nobody appears to have deliberately done so. Mueller’s statement that the “investigation did not identify evidence that any U.S. persons knowingly and intentionally coordinated with the Internet Research Agency'sinterference operations” is a stronger statement than the “did not establish” language that Mueller uses to indicate that evidence is insufficient to prove something. Here he actually seems to be saying that the investigation did not produce evidence at all of knowing participation in the scheme.

The story the report tells, however, is disturbing on its own terms. It appears to be largely the same as the story told in the IRA indictment, though major redactions in this section—all presumably the result of the pending IRA indictment—impair one’s ability to read it. There are some new details, and there are presumably more such details in the redacted sections. But the broad story is one we already know.

It is a story of failed immunity on the U.S. side to outside interference—and aggressive Russian exploitation of the absence of democratic antibodies to fight off such manipulation. The IRA was able to reach tens of millions of U.S. persons using its social media accounts. It was able to trick prominent people into engaging with and promoting its dummy accounts. It was able to exploit social media companies. And it was able to make a series of contacts with Trump campaign affiliates and get Trump figures—including Trump himself—to engage with and promote social media content that came from a hostile power’s covert efforts to influence the American electorate. Though not intentional or criminal on the U.S. side, this pattern shows a troubling degree of vulnerability on the part of the U.S. political system to outside influence campaigns.

And while Trump and his people did not “collude” with the operation, they did fall for it. The investigation identified “multiple occasions” on which “members and surrogates of the Trump Campaign promoted ... pro-Trump or anti-Clinton content published by the IRA” or engaged directly with IRA trolls. Mueller notes that the “investigation identified no similar connections between the IRA and the Clinton Campaign.” To some degree, no doubt, this was because the IRA message was hostile to Clinton and thus not something her people would want to engage. But no doubt the Trump folks were also particularly vulnerable to this sort of manipulation. While they weren’t active partners in this scheme, they were suckers.

One important question the report does not answer, almost certainly because of redactions, is to what extent the IRA operation was directed by the Russian government. The organization’s head is famously close to Russian President Vladimir Putin, though the organization is a private company, not on its face a government operation. While I think it’s reasonable to assume that the operation was state sanctioned, if not state run, the portion of the report that presumably specifies the operation’s relationship to the Russian state is all redacted. So that has to remain a strong hypothesis for now.

The gravamen of this section of the report, in short, is that a lot of entities and individuals contributed to an ecosystem in which a foreign actor—almost certainly at the behest of a foreign government—could run a major disinformation and influence operation against the U.S. electorate. Those actors included a lot of people associated with Trump. While this was not criminal and, indeed, nobody on the U.S. side appears to have intended to do anything wrong, the cumulative result is an unacceptable degree of vulnerability to such malign foreign operations.

The solution to this problem is not simple. The social media companies obviously have a role to play in better policing their platforms. But some of the solution has to come from individuals, particularly prominent individuals, being willing to take more care about sharing on social media content the provenance of which they are not certain. That obviously includes the president and his family members and campaign staff.

 

GRU Hacking Directed at the Clinton Campaign

If the active measures section of the report is exonerating of Trump and his campaign, the section that follows it—the Russian hacking section—is not. It is much worse than is commonly understood for Trump. Just how damning it is has gone somewhat unnoticed for, I think, four reasons. First, like the social media discussion, the hacking section to some degree tracks material already in a Mueller indictment—in this case, the GRU indictment—so what is new is woven in among already familiar material. Second, as with the IRA discussion, there is no ultimate decision to charge anyone on the U.S. side with participation in the hacking. Third, a key portion of this section is significantly impaired by redactions. And finally, the story Mueller is telling here is one that's a little different from the one everyone was looking for. The result of these four factors in combination is that the full story Mueller presents has not quite come through.

So let’s tease it out, because it’s actually a whopper.

On the Russian hacking itself, the report contains a lot of new detail but not a lot that fundamentally changes our understanding of the Russian operation. And yes, Mueller does not appear to have developed evidence that anyone associated with the Trump campaign was involved in the hacking operation itself.

But here’s the thing: It wasn’t for lack of trying. Indeed, the Mueller report makes clear that Trump personally ordered an attempt to obtain Hillary Clinton’s emails; and people associated with the campaign pursued this believing they were dealing with Russian hackers. Trump also personally engaged in discussions about coordinating public relations strategy around WikiLeaks releases of hacked emails. At least one person associated with the campaign was in touch directly with the Guccifer 2.0 persona of the GRU. And Donald Trump Jr. was directly in touch with WikiLeaks itself—from whom he obtained a password to a hacked database. There are reasons none of these incidents amount to crimes—good reasons, in my view, in most cases, viable judgment calls in others. But the picture it all paints of the president’s conduct is anything but exonerating.

This was not “no collusion.” It was Keystone Kollusion—and the incompetence of it is likely the reason no crime was committed.

The first important point here is that the GRU and the Trump campaign—including Trump himself—were not operating in parallel worlds but in iterative interaction with one another. On July 27, 2016, Trump in a speech publicly called for Russia to release Hillary Clinton’s missing server emails: “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing.” The reference here was not to the hacking the GRU had done over the past few months but to the hypothesized compromise of Clinton’s private email server some time earlier—an event that there is no particular reason to believe took place at all.

The GRU, like many Trump supporters, took Trump seriously, but not literally. “Within approximately five hours of Trump’s announcement,” Mueller writes, “GRU officers targeted for the first time Clinton’s personal office.” In other words, the GRU appears to have responded to Trump's call for Russia to release a set of Clinton's emails the Russians likely never hacked and thus did not have by launching a new wave of attacks aimed at other materials.

Trump has since insisted that he was joking in that speech. But the public comments mirrored private orders. After the speech, “Trump asked individuals affiliated with his Campaign to find the deleted Clinton emails,” the report states. “Michael Flynn ... recalled that Trump made this request repeatedly, and Flynn subsequently contacted multiple people in an effort to obtain the emails.”

Oh.

Two of the people contacted by Flynn were Barbara Ledeen and Peter Smith. Ledeen had been working on recovering the emails for a while already, Mueller reports. Smith, only weeks after Trump’s speech, sprang into action himself on the subject. The result was the operation about which Matt Tait wrote a firsthand account on Lawfare. “The investigation established that Smith communicated with at least campaign officials Flynn and Sam Clovis Clovis about his search for the deleted Clinton emails,” Mueller writes, though “the Office did not identify evidence that any of the listed individuals initiated or directed Smith’s efforts.” Ledeen obtained emails that proved to be not authentic. Smith, for his part, “drafted multiple emails stating or intimating that he was in contact with Russian hackers”—though Mueller notes that the investigation “did not establish that Smith was in contact with Russian hackers or that Smith, Ledeen, or other individuals in touch with the Trump Campaign ultimately obtained the deleted Clinton emails.”

In other words, it wasn’t that Trump was above dealing with Russian hackers to get Hillary Clinton’s emails. He not only called publicly on the Russians to deliver the goods on his opponent, but he also privately ordered his campaign to seek the material out. He did this knowing himself—clear from his public statements and very clear from the actions of those who acted on his request—that Russia would or might be the source.

The reason there’s no foul here is only that the whole thing was a wild conspiracy theory. The idea that the missing 30,000 emails had been retrieved was never more than conjecture, after all. The idea that they would be easily retrievable from the “dark web” was a kind of fantasy. In other words, even as a real hacking operation was going on, Trump personally, his campaign and his campaign followers were actively attempting to collude with a fake hacking operation that wasn’t going on.

It is not illegal to imagine stolen emails and try to retrieve them from imagined hackers. But it’s morally little different from being spoon-fed information by Russian intelligence. The Trump campaign was seeking exactly the spoon-feeding it was accused of taking; it just couldn’t manage to find the right spoon, and it kept missing when it tried to put any spoons in its mouth.

As to the real hacking operation, that one didn’t need Trump’s help. The Guccifer 2.0 persona had direct contact with Roger Stone (whose name is redacted in the description in the report) in August and September of 2016, Mueller reports. But the GRU had its own distribution mechanisms and didn’t need to engage directly with the Trump campaign or its surrogates. As the operation progressed, WikiLeaks handled the distribution, and both the campaign and the GRU dealt with WikiLeaks—and thus didn't have to deal directly with one another.

The full parameters of the relationship between the Trump campaign and WikiLeaks, as described by the report, remain obscure because of redactions. The redacted material involves the activities of Roger Stone, whose case is pending and who purported to serve as the intermediary between the campaign and WikiLeaks. That said, words readable between redactions make clear that:

“by late summer of 2016, the Trump Campaign was planning a press strategy, a communications campaign, and messaging based on the possible release of Clinton emails by WikiLeaks.”

“While Trump and Gates were driving to LaGuardia Airport,” there was a phone call of some kind, and “shortly after the call candidate Trump told Gates that more release of damaging information would be coming”; and

Donald Trump Jr. had direct communications with WikiLeaks, which gave him the password to the website of an anti-Trump PAC and suggested social media material to promote.

In short, while this section does not describe a Trump campaign conspiracy in the Russian hacks, it does describe direct engagement between the GRU and Stone; it describes both the campaign and the GRU seeking to coordinate with WikiLeaks on the release of information; and it describes the campaign being eager to retrieve what turned out to be fictitious emails and its agents being willing to deal with Russian hackers to get them. The president personally was involved in these latter two episodes, Mueller reports.

It’s a remarkable story, and it's not a flattering one. If nobody ran afoul of the law, the likeliest explanation is the dumbest of dumb luck.

 

Russian Government Links to and Contacts with the Trump Campaign

This section comprises more than 100 pages—which gives you an idea of how much material there was to investigate regarding Russian contacts and links with the Trump campaign. It’s a heck of a read, but it’s a complicated one that tells a confusing story I’ll be working to understand for a long time. Mueller tells it through a legal lens; he’s a prosecutor, after all, looking to answer legal questions. But I found myself reading it through a very different lens—the lens of patriotism. 

The section begins by articulating a question it actually never quite answers: “The Office investigated whether those contacts constituted a third avenue of attempted Russian interference with or influence on the 2016 presidential election.” I read the section in vain for any hint of what Mueller and his team believe the answer to this question to be. Is the story here that Russia was probing Trump world from all angles in an effort to recruit, compromise and penetrate? Is the story that the Russians were trying to find collaborators with whom to coordinate? Or is the answer to the question that, no, those contacts didn’t constitute a third avenue even on the Russian side—but have some other explanation? Mueller offers nothing by way of a historical theory of the case.

The question the section does answer is the one articulated in the next sentence: “In particular, the investigation examined whether these contacts involved or resulted in coordination or a conspiracy with the Trump Campaign and Russia, including with respect to Russia providing assistance to the Campaign in exchange for any sort of favorable treatment in the future.” The answer to that investigative inquiry? “Based on the available information, the investigation did not establish such coordination.”

The last paragraph of the section adds some texture to this conclusion: “In sum, the investigation established multiple links between Trump Campaign officials and individuals tied to the Russian government. Those links included Russian offers of assistance to the Campaign. In some instances, the Campaign was receptive to the offer, while in other instances the Campaign officials shied away. Ultimately, the investigation did not establish that the Campaign coordinated or conspired with the Russian government in its election-interference activities.”

Let’s treat separately the question Mueller answers and the one he does not answer. They are both complicated discussions. In many ways, the question he doesn’t address is the more interesting and important one. But let’s start with the question the section does address.

To understand Mueller’s answer to the coordination and conspiracy questions, it pays to return to the discussion way back on page 2—discussed above—concerning what Mueller means by coordination and conspiracy and what it means when he says that the evidence “did not establish” something. Mueller made clear early on that he knows perfectly well how to “point out the absence of evidence” when the investigation refutes something; the phrase “did not establish,” he noted specifically, “does not mean there was no evidence” of the facts in question. It means, rather, that the investigation could not prove something adequately for criminal purposes. Coordination, meanwhile, he interprets in light of conspiracy law, which requires a meeting of the minds between conspirators in an agreement to pursue an illegal end. So let’s start by noting the narrowness of the inquiry here and the fact that Mueller chose to use the phrase that he had specifically said earlier did not signify the absence of evidence.

The first point to make, therefore, is that Mueller did not conclude either that coordination between the Russians and the Trump campaign did not happen through some or all of these contacts. He concluded, rather, that he had insufficient evidence to allege criminally that it did happen. This is notably different from his conclusions about the IRA operation, where he affirmatively reported an absence of evidence: the “investigation did not identify evidence that any U.S. persons knowingly and intentionally coordinated with the IRA interference operations.”

It is not hard to see how he came to the conclusion that charges for conspiracy would not be plausible based on the contacts reported here. For starters, a number of the individual incidents that looked deeply suspicious when they first came to light do look more innocent after investigation. These include the change in the Republican Party platform on Ukraine at the Republican Convention, for example, and the various encounters between Jeff Sessions and other campaign officials, on the one hand, and the omnipresent former Russian ambassador, Sergey Kislyak, on the other. On these matters, Mueller does seem to have found that nothing untoward happened.

Even those incidents that don’t look innocent after investigation don’t look like criminal conspiracy either. So, for example, George Papadopoulos found out about the Russians having “dirt” on Clinton in the form of “thousands of emails,” but he does not appear to have reported this to the campaign—though he was trying to arrange a Trump-Putin meeting at the time. Even if he had reported it to the campaign, it doesn’t constitute conspiracy for the Trump campaign to be aware of Russian possession of hacked Clinton emails. The campaign, even if it did learn of what Papadopoulos had heard, never did anything about it.

The Trump Tower meeting is one of the most damning single episodes discussed, since the campaign’s senior staff took a meeting with Russian representatives having been promised disparaging information on Clinton as part of the Russian government’s support of Trump. Yet even here, while the campaign showed eagerness to benefit from Russian activity, the meeting was unproductive and nothing came of it. Where exactly is the conspiracy supposed to be?

Ditto the extended negotiations over Trump Tower Moscow. The investigation here makes clear that Trump—who spent the campaign insisting he had “nothing to do with Russia”—was lying through his teeth the whole time he was, in fact, seeking Russian presidential support for his business deal. But it’s not illegal to have contacts with Russians, including Putin’s immediate staff, to try to build a building. And it’s not obvious how this sort of “collusion” with the Russian government could amount to coordination or conspiracy on concurrent Russian electoral interference. Tellingly, Mueller notes that Michael Cohen couldn’t recall any discussion of the “political implications of the Trump Moscow project,” though he did recall “conversations with Trump in which the candidate suggested that his campaign would be a significant ‘infomercial’ for Trump-branded properties.”

The problem with imagining this series of contacts as a conspiracy law problem is that neither any one of them individually nor any group of them together reflects what Mueller described as his threshold definition of “coordination,” which “require an agreement—tacit or express—between the Trump Campaign and the Russian government on election interference. That requires more than the two parties taking actions that were informed by or responsive to the other's actions or interests.”

But if that’s the case, then why is Mueller so reticent about a stronger “no collusion” conclusion? Mueller actually doesn’t answer this question. But I think there are likely two major factors that lead him to be circumspect in his conclusion on this score.

The first is the sheer volume of contacts. It really is breathtaking. These contacts were taking place even as it was publicly revealed that the Russians had been behind the Democratic Party hacks, even as the releases of emails took place, even as the incumbent administration was publicly attributing the attacks to Russia, even as—through the transition—the outgoing administration was sanctioning Russia for them. The brazen quality of meeting serially with an adversary power while it is attacking the country and lying about it constantly militates against a stronger conclusion that there is no evidence of conspiracy—at least not in the absence of solid answers to every question.

This brings me to the second factor, which is that there were not solid answers to every question—and some of the loose ends are weird. The Mueller team was clearly left unsatisfied that it understood all of Carter Page’s activities while he was in Moscow in July 2016, for example. While redactions encumber the reading of this portion of the discussion, Page had referred in an email to the campaign to “feedback from a diverse array of other sources close to the Russian Presidential Administration.” Mueller’s team was apparently unable to figure out what this reference to a "diverse array" of government "sources" meant. “The Office was unable to obtain additional evidence or testimony about who Page may have met or communicated with in Moscow; thus, Page’s activities in Russia—as described in his emails with the Campaign—were not fully explained,” Mueller writes.

Similarly, Donald Trump Jr., the office reports in its discussion of the Trump Tower meeting, “declined to be voluntarily interviewed by the Office.” This line is followed by a redaction for grand jury information. Given that a subpoena would normally resolve the problem of such a refusal of an interview, the redaction raises the question of whether Trump Jr. may have asserted his Fifth Amendment right against self-incrimination or indicated an intent to do so (prosecutors typically will not force someone to appear before a grand jury once they have been informed he or she intends to assert the Fifth). In any event, Mueller’s team was left without a full account of the conduct of the president's son.

The biggest problem in this regard was Paul Manafort. Mueller is candid that he was unable to determine why Manafort was having campaign polling data shared with his long-time employee, Konstantin Kilimnik; Mueller specifically cites evidence tending to support the FBI’s determination that Kilimnik has ties to Russian intelligence. Mueller was also unable to determine what to make of repeated conversations between Kilimnik and Manafort about a Ukrainian peace plan highly favorable to Russia. And while Mueller could not find evidence of Manafort’s passing the peace plan along to other people in the campaign, he notes that the office was unable “to gain access to all of Manafort’s electronic communications” because “messages were sent using encryption applications” and that Manafort lied to the office about the peace plan. As to the polling data, “the Office could not assess what Kilimink (or others he may have given it to) did with it.” So while the office did not establish coordination in this area, it was clearly left with residual suspicions—and with unanswered questions.

So there you are, on the legal side. The evidence arising out of links or contacts isn’t all that close to establishing coordination in the sense that conspiracy law would recognize. But the volume of contacts, the lies and the open questions make it impossible to say that there’s no evidence of it—much less that there’s positive evidence falsifying it.

But as I say, the really interesting question is the nonlegal question that Mueller doesn’t answer: “whether those contacts constituted a third avenue of attempted Russian interference with or influence on the 2016 presidential election.” Put another way, what is the story these contacts tell if it’s not one of active coordination? They surely aren’t, in the aggregate, innocent. They aren’t normal business practice for a presidential campaign. When Mueller asks whether they constituted some sort of third avenue for Russian interference, he’s really asking, in the prosecutorial language available to him, what to make of them.

People are going to see in this history what they want to see. It will tend to reflect back people’s prior assumptions about Trump and the 2016 election. For those who want vindication for Trump in the absence of evidence of a criminal conspiracy, that is a reality available to them from these pages. For those looking for “collusion” in some more colloquial sense of the word, there is plenty of grist for that conclusion here—between Trump Tower Moscow, the Trump Tower meeting, the bizarre behavior of Papadopoulos, Manafort and Page, and the almost endless back-channel communications during the transition. For people thinking in a counterintelligence framework, well, let’s just say it's a target-rich environment on that front as well.

So maybe the following reflects nothing more than my own prior assumptions, but for what it’s worth, here’s what I see in the story Mueller has told over these more-than-a-hundred pages.

I see a group of people for whom partisan polarization wholly and completely defeated patriotism. I see a group of people so completely convinced that Hillary Clinton was the enemy that they were willing to make common cause with an actual adversary power at a time it was attacking their country to defeat her. To me, it matters whether the conduct violated the law only in the pedestrian sense of determining the available remedies for it—and in guiding whether and how we might have to change our laws to prevent such conduct in the future. To me, the salient facts from this section are the following:

Trump was willing to do business with and seek favors from the Russian state even as it was attacking the country for whose presidency he was running—and he was willing to lie about doing so.
His campaign’s senior leadership was eager to benefit from that country’s efforts to dish dirt on his opponent and was willing to meet with people it knew to represent that country in order to receive such information.
Multiple campaign staff and advisers engaged in conduct in relation to that country that legitimately gave rise to counterintelligence scrutiny.
Multiple campaign staff and advisers lied to investigators about their dealings with Russian officials or intermediaries to such officials in a fashion that gave rise to criminal charges or other actions.
I don’t know the right word for this pattern of conduct. It’s not “collusion,” though it may involve some measure of collusion. It’s not “coordination” or “conspiracy.” But in Clinton, Democrats, and liberals, the Trump campaign saw a sufficiently irreconcilable enemy that it looked at Vladimir Putin and saw a partner. To my mind, anyway, that’s the story Mueller told in this section. It may not be a crime, but it is a very deep betrayal.

 

Prosecution and Declination Decisions

The rationales, indeed the specific language, Mueller uses to describe his declination decisions warrant brief discussion. I will confine this discussion to the declinations, though the section in question also covers his decisions to charge people, since the charging decisions are almost wholly explained by prior discussions on Lawfare of the indictments themselves and the litigations that resulted. Here is a list of the major reasons why Mueller did not bring cases:

As noted above, on the IRA matter, the office found an absence of evidence that any U.S. person participated in the conspiracy: “[T]he investigation did not identify evidence that any U.S. person who coordinated or communicated with the IRA knew that he or she was speaking with Russian nationals engaged in the criminal conspiracy,” the office writes.
Declinations related to the Computer Fraud and Abuse Act are redacted too heavily to comment upon, other than to note that one of them likely relates—given that episode is described earlier in the report—to Donald Trump Jr.’s receipt and use of a password from WikiLeaks to a site set up by an anti-Trump PAC.
As to conspiracy, the office “did not establish that the contacts” between the campaign and the Russians “amounted to an agreement to commit any substantive violation of federal criminal law.” The office also “did not establish any agreement among Campaign officials—or between such officials and Russia-linked individuals—to interfere with or obstruct a lawful function of a government agency during the campaign or transition period.”
On FARA matters and matters under 18 U.S.C. § 951, “the investigation did not ... yield evidence sufficient to sustain any charge that any individual affiliated with the Trump Campaign acted as an agent of a foreign principal within the meaning of FARA or, in terms of Section 951, subject to the direction or control of the government of Russia, or any official thereof. In particular, the Office did not find evidence likely to prove beyond a reasonable doubt that Campaign officials such as Paul Manafort, George Papadopoulos, and Carter Page acted as agents of the Russian government—or at its direction, control, or request—during the relevant time period.” Note the important caveat here: The office is not saying there was not evidence, merely that there was not sufficient evidence to prove the matter criminally. Note also that the office did accuse both Manafort and Flynn of FARA violations, just not for their relationships with Russia. Mueller also notes that “the investigation revealed significant ties between Papadopoulos and Israel (and search warrants were obtained in part of that basis)” but not enough to “obtain and sustain a conviction under FARA or Section 951.”
The closest call case seems to be on campaign finance charges related to the Trump Tower meeting. The theory here was that the Trump campaign agreed to the meeting expecting to receive derogatory information on Clinton, and that such material constituted a “thing of value” and thus an illegal foreign campaign contribution. The organization of the meeting might thus be a conspiracy to receive illegal foreign contributions. The length of the discussion of this matter suggests it was analyzed carefully and was considered seriously. The declination has three distinct factors behind it. First, while there are “reasonable arguments that the offered information would constitute a ‘thing of value’ within the meaning [of the law],” it is not certain: “[N]o judicial decision has treated the voluntary provision of uncompensated opposition research or similar information as a thing of value that could amount to a contribution under campaign-finance law.” It is thus “uncertain how courts would resolve these issues.” Moreover, “the Office did not obtain admissible evidence likely to meet the government’s burden to prove beyond a reasonable doubt that these individuals acted ‘willfully,’” the office writes. And even if it could prove willfulness, “the government would likely encounter difficulty in proving beyond a reasonable doubt that the value of the promised information exceeded the threshold for a criminal violation.” Campaign finance expert Bob Bauer argued in our Lawfare Podcast discussion of the matter that Mueller’s legal view here is incorrect. I would not presume to try to evaluate the dispute.
An additional campaign finance declination is too redacted to evaluate.
A possible false statements case against Jeff Sessions for his denials of having met with Russians during the campaign was declined because “the evidence is not sufficient to prove that Sessions gave knowingly false answers to Russia-related questions in light of the wording and context of those questions.” In light of that wording and context, Mueller concludes, Sessions’s subsequent explanation to the Senate of his understanding “is plausible.”
Other false statements declinations are too redacted to decipher.
 

Introduction to Volume II

The two-page introduction to Volume II of the Mueller report is perhaps the part of the entire document that packs the most important material into the smallest space. It is here that Mueller explains why he, as he puts it, “determined not to make a traditional prosecutorial judgment” on the question of whether Trump obstructed justice in his interactions over law enforcement investigation of L’Affaire Russe. The reason is complicated and multilayered. It ultimately, I think, leads to the conclusion that Mueller likely believes the president did, in fact, obstruct justice. At a minimum, it certainly argues that the evidence is at least strong enough on this point that the matters should be decided by prosecutors after Trump leaves office.

As a preliminary matter, I want to stress that Mueller’s section is difficult to reconcile with Barr’s account of Mueller’s reasoning at his press conference Thursday morning. Discussing a document that would become public within an hour or so—indeed, a document of which reporters present were being given embargoed copies—Barr was asked by a reporter to “explain for us the special counsel’s articulated reason for not reaching a decision on obstruction of justice and if it had anything to do with the department’s long-standing guidance on not indicting a sitting president?”

Barr responded that he would let Mueller’s report answer that question. Then he added that when he and senior department leadership met with Mueller on March 5, “[w]e specifically asked him about the OLC opinion and whether or not he was taking a position that he would have found a crime but for the existence of the OLC opinion. And he made it very clear several times that that was not his position. He was not saying that but for the OLC opinion, he would have found a crime. He made it clear that he had not made the determination that there was a crime.” When another reporter asked him whether Mueller was deferring to Congress on the question of the evaluation, Barr responded, “Well, Special Counsel Mueller did not indicate that his purpose was to leave the decision to Congress. I hope that was not his view, since we don’t convene grand juries and conduct criminal investigations for that purpose.”

I obviously was not present when Mueller and Barr met on March 5, and I am not saying that Barr was lying about his interactions with Mueller. That said, no component of his comments accurately reflects what Mueller actually wrote in these arresting two pages of the report—which actually lay out a subtle argument. 

Mueller lists four “considerations that guided our obstruction-of-justice investigation.” The first of them states that “[t]he Office of Legal Counsel (OLC) has issued an opinion finding that ‘the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions’ in violation of ‘the constitutional separation of powers.’” Because Mueller is an officer of the Justice Department, “this Office accepted OLC’s legal conclusion for purposes of exercising prosecutorial jurisdiction.”

Oh.

The use of the word “jurisdiction” there is not casual. Mueller does not say he was guided by OLC’s opinion in the exercise of his prosecutorial discretion or that he was influenced by OLC’s view in formulating his own thinking on the law. He describes himself as bound by OLC’s opinion as a matter of jurisdiction. That is, in his view—a view with which I agree—Mueller lacks the authority to indict the president. Indeed, the office declined to make a “traditional prosecutorial judgment” because it was jurisdictionally barred from reaching one of the only two determinations such a “binary” judgment can yield.

The report goes on, in the very next sentence, to state two prudential considerations that directly contradict Barr’s denial that Mueller was deferring to Congress: “[A]part from OLC’s constitutional view, we recognize that a federal criminal accusation against a sitting President would place burdens on the President’s capacity to government and potentially preempt constitutional processes for addressing presidential misconduct” (emphasis added). This second prudential consideration is critical.

Leaving aside Barr’s grossly misleading characterizations of the document, the relevant point is that Mueller makes two things clear within the first substantive paragraph of the section: that OLC’s opinion is central to his decision not to resolve obstruction matters, and that informing his judgment as well is a cognizance that the impeachment process, which Mueller references explicitly in a footnote, is the accepted mechanism for evaluating presidential lawlessness.

Mueller then goes on to explain that OLC “recognizes that a criminal investigation during the President’s term is permissible” because OLC recognizes that “a President does not have immunity after he leaves office.” What’s more, individuals other than the president “may be prosecuted at this time.” This point is important both in answering Barr’s subsequently stated concern that “we don't convene grand juries and conduct criminal investigations” to defer to congressional processes and also to explaining, more generally, what the live criminal question at issue in this matter is, given that the president can’t be indicted. Mueller says explicitly that “we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available”

It is important to read the second point in the context of the first one. Together they say something like the following: We can’t indict Trump now and are thus deferring to Congress in the short term and creating a record for later prosecutorial assessment when the president leaves office. In other words, Mueller is not declining to make a traditional prosecutorial judgment; he is declining to make a traditional prosecutorial judgment now and leaving that task for someone else to do later.

This brings Mueller to the question of how to describe in the interim the results of an investigation that cannot for now result in indictment. Mueller here makes a highly principled judgment (whether his principle is a good one or a bad one is a question for another day): Given that he can’t indict the president, “we determined not to apply an approach that could potentially result in a judgment that the President committed crimes.” Driving this were “fairness concerns” about a situation in which a judgment of criminality would not result in a “speedy and public trial, with all the procedural protections that surround a criminal case,” which the president could use “to seek to clear his name.” A judgment that the president had committed crimes, without an accompanying charge, Mueller writes, “affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.”

In other words, Mueller is saying that given that he can’t indict Trump now, he is deferring to Congress in the short term, and to the judgment of future prosecutors as to whether ultimately to bring a case, and the Justice Department should not in the meantime be pronouncing on the merits of whether the president has committed crimes—allegations against which there is no forum in which to present a defense.

But then Mueller gives the game away, writing in his fourth point that “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.” The idea of not evaluating criminality turns out to be a one-way ratchet; while Mueller does not allow an evaluation that would inculpate the president, he has no apparent reservation about clearing the president if the facts warranted that.

The trouble, he says, is that “we are unable to reach that judgment” in the face of “difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”

Putting it all together, here’s what I think we can responsibly say is Mueller’s position:

(1) Mueller believes the evidence of presidential obstruction of justice is strong enough, and the president’s defenses weak enough, that to resolve this case would involve precisely the type of traditional prosecutorial judgment that he believes he cannot properly render; it is not clear that the president did not commit obstruction crimes, and, given that, the analysis should go no further.

(2) In the absence of a judgment clearing the president, Mueller does not believe it appropriate for the Justice Department either to opine on the merits of any obstruction case or to close the matter while Trump remains in office—believing the prosecutorial judgment should await the end of Trump’s presidency, when he is again amenable to criminal charges.

(3) In the meantime, Mueller considers the matter a question for Congress, which we can infer because he wants to avoid taking action that would “preempt constitutional processes for addressing presidential misconduct.”

(4) Finally, Mueller assembled the record that follows this dense discussion certainly to aid later prosecutorial consideration and probably also with an eye toward facilitating contemporary congressional consideration.

He articulates all of that antecedent to any discussion of the actual evidence. 

 

Background Legal and Evidentiary Principles

There’s not a great deal to say about this section, and so I’m going to largely gloss over it. The first half of it gives some useful background principles on obstruction of justice. The second half offers a straightforward account of the manner in which the special counsel’s office came to investigate obstruction in connection with L’Affaire Russe. The predicate facts are these:

After the appointment of the Special Counsel, this Office obtained evidence about the following events relating to potential issues of obstruction of justice involving the President:

(a) The President’s January 27, 2017 dinner with former FBI Director James Comey in which the President reportedly asked for Comey’s loyalty, one day after the White House had been briefed by the Department of Justice on contacts between former National Security Advisor Michael Flynn and the Russian Ambassador;

(b) The President’s February 14, 2017 meeting with Comey in which the President reportedly asked Comey not to pursue an investigation of Flynn;

(c) The President’s private requests to Comey to make public the fact that the President was not the subject of an FBI investigation and to lift what the President regarded as a cloud;

(d) The President’s outreach to the Director of National Intelligence and the Directors of the National Security Agency and the Central Intelligence Agency about the FBI’s Russia investigation;

(e) The President’s stated rationales for terminating Comey on May 9, 2017, including statements that could reasonably be understood as acknowledging that the FBI’s Russia investigation was a factor in Comey’s termination; and

(f) The President’s reported involvement in issuing a statement about the June 9, 2016 Trump Tower meeting between Russians and senior Trump Campaign officials that said the meeting was about adoption and omitted that the Russians had offered to provide the Trump Campaign with derogatory information about Hillary Clinton.

Taking into account that information and our analysis of applicable statutory and constitutional principles ..., we determined that there was a sufficient factual and legal basis to further investigate potential obstruction-of-justice issues involving the President.

Mueller here also explains his decision not to subpoena the president’s testimony. As with the earlier reference to Donald Trump Jr.’s decision, discussed above, the relevant passage raises a question about whether the president asserted his Fifth Amendment rights not to give evidence that might incriminate himself. “We also sought a voluntary interview with the President. After more than a year of discussion, the President declined to be interviewed,” Mueller writes. The next two lines are redacted for reasons of grand jury secrecy. The implication is that a subpoena may have been issued and then withdrawn for some reason. Normally, one would assume that was because of a Fifth Amendment claim. Here, however, the story seems to be more complicated, and we should be careful. The very next sentence notes that “the President did agree to answer written questions on certain Russia-related topics, and he provided us with answers”—though not on obstruction. And the passage then goes on to articulate reasons other than a Fifth Amendment claim that a subpoena was not pursued. Specifically, Mueller describes having concluded that the process would create “substantial delay” and that “we had sufficient evidence to understand relevant events and to make certain assessments without the President’s testimony.”

John Q. Barrett, on Twitter, offers the following analysis:

https://twitter.com/JohnQBarrett/status/1118963652818800640

Re Barr's redaction of "Grand Jury" information, vol. 2 p. 13:  It seems that Mueller got a grand jury to subpoena President Trump to testify, & that after negotiations & his agreement to answer written questions re Russia, that subpoena was withdrawn.

And/or the redaction could cover a description of grand juror desire to subpoena the President, which Mueller in the end persuaded the grand jury not to do.

In short, while it’s possible that Trump’s counsel asserted his Fifth Amendment rights or suggested they would do so, it’s also possible that a subpoena was issued and withdrawn for other reasons, negotiations continued, and ultimately Mueller decided not to pursue the subpoena for the reasons he articulated.

 

Factual Results of the Obstruction Investigation

This section comprises 12 subsections, lettered A-L, each of which details some aspects of the factual findings of the obstruction investigation. Ten of these subsections, B-K, each detail a potentially obstructive pattern of behavior by Trump. Subsection A describes campaign- and transition-period “response to reports about Russian support for Trump.” And Subsection L details some “overarching factual issues” that affect multiple earlier fact patterns.

There is relatively little new factually in Subsection A, which does not deal with any obstructive pattern, so my analysis will focus on the sections that follow.

A note on Mueller’s methodology here, and my own. Because Mueller does not evaluate the matters he describes in a traditional law enforcement analysis, he never says directly how strong he feels the evidence of criminality is about any of the incidents. What he does instead is to describe the factual findings in detail and then, in an “analysis” section, address the evidence with reference to three common elements of obstruction statutes: the presence of an obstructive act, whether there is a nexus to an obstructable proceeding, and whether there is evidence of criminal intent. Mueller does not, in these subsections, discuss the president’s defenses, which he addresses elsewhere.

One thus cannot evaluate Mueller's conclusions, his not having given any. Instead, I am looking at this evidence through two lenses, which I am attempting to keep analytically separate from one another: First, I will attempt to evaluate how strong a criminal case I think the evidence he describes is in each instance; second, I will evaluate the same fact pattern with regard to how strong a case for impeachment the allegations describe. In a number of the cases, the answers will be similar; in some they will likely diverge. I will generally not review or summarize the facts except as necessary to make my analytical points.

 

B. The President’s Conduct Concerning the Investigation of Michael Flynn

The first episode deals with the president’s behavior in relation to the investigation of Michael Flynn. This includes the demand of loyalty from Comey, as well as the request that Comey drop the Flynn matter. It also includes the president’s outreach to Flynn after his resignation, through Reince Priebus and K.T. McFarland, to tell hi

[Athos_131]

I wonder since the shitbag is finally posting again, if it will ever have the guts to comment in this thread.

Probably not.  Cowards are like that.

#Resist

[Athos_131]

Bill Barr goes to Hell. And finds a client.

There is no second day of the testimony of William P. Barr because William P. Barr has decided not to appear before the House Judiciary Committee. So, to him, it comes as a surprise to find himself in a limousine on his way to testify.

“Testify where?” he asks, sounding a bit snitty. It is dark in the car. The figure in the front does not turn, but Barr thinks he sees something red and luminous — like eyes, but not quite like eyes — glinting in the rearview mirror. “I told the House ‘no.’ ”

“After seeing your performance yesterday,” the driver says, “my boss wanted you to come testify on his behalf, as well.”

“Your boss?”

“Call him Individual-0, if you like.” He holds up a tiny plastic bag with what look like some dirty coffee grounds in it. “Here, do you want the remnants of the credibility of the Justice Department? If not, I’m going to toss it next to the little chunk that is all that remains of John Kelly’s soul."

Barr chuckles nervously. “Now, look, uh, nobody’s been eating anybody’s souls, no matter what that showboat Comey says in the New York Times.”

“One of the best tricks Individual-0 ever pulled,” the figure says. “Ensuring that people who are right are often also extraordinarily annoying. Enough. Just do what you did yesterday. It was perfect.”

“Who is the client?”

“What would you say if it were the Night King?”

“I would say he was within his rights to try to protect himself and that the creation of an army of wights was well within the scope of his power and a logical step for a man who believes he has done nothing wrong.”

“What would you say if it were Sauron?”

“A man is entitled to try to hang on to his jewelry. I’ve always felt strongly in favor of the rights of the Lidless Eye of Flame as an institution.”

“Then you should have no trouble."

Barr then is in another hearing room. It is about the same as in Congress, only the light all feels artificial, as though it is deep underwater, seen through feet of smeared glass. Perhaps deeper than that. The walls of the room seem to heave and breathe and perspire.

Sen. Lindsey O. Graham (R-S.C.) is still running the hearing, but he looks a little more concerned, and hotter. Barr is in the midst of talking. There is a Bible in front of him, but for some reason he does not wish to touch it.

The words begin. They do not cease. They are drawn up and out of him, like something stuck to the bottom step of an escalator.

“I have not read the full evidence,” Barr says, “but I am confident this so-called Good Book largely exonerates my client. The serpent did no wrong.”

There is a noise like a thousand flies buzzing with satisfaction, and like Reince Priebus trying and failing to swat them. The words continue to come.

“There isn’t any law against offering people free apples. Though it could be argued that those apples were planted there by his opponent and, thus, any attempt to use them to indict him is fruit of a poisoned tree. In fact, the real question is why a nude woman was trying to take ownership of a garden. The real question is what she was trying to cover up afterward.”

All around, a thousand pig heads nod on the ends of sharpened stakes. In the stalls, a dog begins to howl.

“All these allegations that they saw him transform into a serpent are just mind-bendingly bizarre, and I don’t know why they were spying on him. He should be allowed to transform into a serpent in privacy, although, of course he did not. ‘Spying’ is not a pejorative term.”

There is the sound of someone perhaps attempting to ask a question, then an enormous crunch. His voice continues.

“Tormenting a righteous man and covering him with boils and demolishing his cattle — some would call that Job creation. That’s what I call it.”

A deep sulfurous rumble, almost like laughter, like the belch after you had eaten a soul that did not agree with you.

“The real question is why this framework for judgment and investigation was constructed in the first place. My client has a right to retaliate when he feels he is being treated unjustly. If anyone comes along and seeks to cast you out of a place, you are entitled to retaliate. You are where you are because you deserve to be there.”

Pandemonium ensues. Much flashing and flapping of wings and gnashing of teeth. The testimony does not halt.

“Did he try to lead people into temptation? I am struggling with the word temptation. I will spend up to 40 days struggling with it. Tempt? Did he tempt people? I’m sorry, I do not know what the word means. I am confused. Did he suggest that people do bad things? What are words? What is bad? I am sorry, I have forgotten the meaning of all words. I have forgotten even myself. I am just a little baby who has gotten here for the first time today. No word carries any value or meaning. I say them and they flutter away and I forget them, like instructions from a president.”

The room seems to be getting darker. The buzzing is louder now. The darkness is nearer to where he stands, and from it comes another crunch, and a satiated hiss.

“Yes, I am familiar with the people who have called him directly and personally responsible for every bad thing that happens, and who have castigated me for my willingness to serve as his personal defender. But afterward, I called them on the phone and they said they did not mean it. They said really they were upset because of the way it was talked about. They regretted denouncing me. I wish that instead of the evidence of all the derogatory things they said publicly in writing, you had evidence of all the good things that they said afterward, definitely, in secret, where only I could hear them. And my client, who hears all things. No matter where we are.” The light is gone. His voice echoes. “Where are we?”

If this were a nightmare, the sound would wake him, but it has not awakened him yet. He meant well enough. He knows where he is.

#Resist

[Athos_131]

White House complained to Barr about contents of special counsel report after its release

The White House last month lodged a formal complaint with the Justice Department over the findings of special counsel Robert S. Mueller III — and made clear that President Trump believes he retains the right to assert executive privilege over material contained in the report, despite its public release.

The five-page letter was authored by Emmet Flood, who has handled the Mueller investigation for the White House counsel’s office, and submitted to Attorney General William P. Barr on April 19, the day after Barr released a redacted version of the report.

The letter was provided to The Washington Post by a White House official one day after Barr criticized Mueller during a contentious appearance in front of the Senate Judiciary Committee. The attorney general described a letter from the special counsel asking him to release summaries of his report as “snitty” and said he was confused by Mueller’s decision that he could not come to a conclusion at the end of his obstruction-of-justice inquiry.

In his report, Mueller wrote that he believed that because a Justice Department policy holds that the president cannot be indicted while in office, the special counsel’s office could not make an assessment on whether the president had broken the law.

“While this report does not conclude that the President committed a crime, it also does not exonerate him,” Mueller wrote in his 448-page report, which laid out evidence gathered about potential acts of obstruction by Trump.

In his April 19 letter, Flood accused Mueller of exceeding his authority by spilling into public view a recitation of facts far more detailed than what is typically included in criminal indictments. He described the report as “prosecutorial curiosity — part ‘truth commission’ report and part law school exam paper.”

Both the Justice Department and the special counsel’s office declined to comment.

In the letter, Flood offered a scathing critique of Mueller’s report, writing that the special counsel team abandoned the normal burden of proof that requires prosecutors to establish crimes beyond a reasonable doubt.

The refusal to “exonerate” the president, he wrote, turned the presumption of innocence on its head.

“Because they do not belong to our criminal justice vocabulary, the SCO’s inverted-proof-standard and ‘exoneration’ statements can be understood only as political statements, issuing from persons (federal prosecutors) who in our system of government are rightly expected never to be political in the performance of their duties,” Flood wrote in the letter, which was first reported by CNN.

He said that Mueller’s lengthy report showed his team had “failed in their duty to act as prosecutors and only as prosecutors.”

Before the release of Mueller’s report, the White House did not assert executive privilege over the document or request redactions.

In his letter, Flood wrote that the White House declined to assert the privilege with a “measure of reluctance born of concern for future Presidents and their advisors.”

But he made clear that the White House did not believe this choice meant they have closed the door on asserting executive privilege over the same material in the future.

In particular, he wrote that the release of the report does not affect the president’s ability to instruct advisers to refuse to appear before congressional committees.

“It is one thing for a President to encourage complete cooperation and transparency in a criminal investigation conducted largely within the Executive Branch,” he wrote. “It is something else entirely to allow his advisors to appear before Congress, a coordinate branch of government, and answer questions relating to their communications with the President and with each other.”

The House Judiciary Committee has issued a subpoena to former White House counsel Donald McGahn, who was a key witness to several episodes Mueller explored as he looked at whether Trump obstructed justice.

The White House has objected to McGahn’s appearance. In an interview with Fox News on Thursday, Trump said he’d already had McGahn testify for more than 30 hours, referring to the time the former White House lawyer spent with Mueller’s investigators. “Congress shouldn’t be looking anymore. This is all. It’s done,” Trump said.

If McGahn chooses to defer to guidance from White House lawyers, the issue will likely result in a lengthy court battle that will test the limits of the president’s executive powers.

#Resist

[Athos_131]

Watergate had the Nixon tapes. Mueller had Annie Donaldson’s notes.

The notes, scribbled rapidly on a legal pad, captured the fear inside the White House when President Trump raged over the Russia investigation and decreed he was firing the FBI director who led it: “Is this the beginning of the end?”

The angst-filled entry is part of a shorthand diary that chronicled the chaotic days in Trump’s West Wing, a trove that the special counsel report cited more than 65 times as part of the evidence that the president sought to blunt a criminal investigation bearing down on him.

The public airing of the notes — which document then-White House counsel Donald McGahn’s contemporaneous account of events and his fear that the president was engaged in legally risky conduct — has infuriated Trump.

“Watch out for people that take so-called ‘notes,’ when the notes never existed until needed,” Trump tweeted a day after the release of special counsel Robert S. Mueller III’s report.

The scribe keeping track of the president’s actions was Annie Donaldson, McGahn’s chief of staff, a loyal and low-profile conservative lawyer who figures in the Mueller report as one of the most important narrators of internal White House turmoil.

Her daily habit of documenting conversations and meetings provided the special counsel’s office with its version of the Nixon White House tapes: a running account of the president’s actions, albeit in sentence fragments and concise descriptions.

Among the episodes memorialized in Donaldson’s notes and memos: the president’s outrage when FBI Director James B. Comey confirmed the existence of the investigation into possible ties between Russia and the Trump campaign, Trump’s efforts to pressure Attorney General Jeff Sessions not to recuse himself from overseeing the probe and his push to get Mueller disqualified and removed as the special counsel.

The Harvard Law School graduate’s unflinching words — “Just in the middle of another Russia Fiasco,” she wrote on March 2, 2017 — have cast the die-hard Republican in an unfamiliar role: as a truth teller heralded by Trump’s foes for providing what they view as proof he is unfit for office.

House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) has already signaled that he intends to subpoena Donaldson as a critical witness.

[Barr puts Trump’s actions in best light, despite ‘substantial evidence’ of obstruction cited by Mueller]

Donaldson — who lives in Montgomery, Ala., where her husband recently got a job as a federal prosecutor — did not respond to requests for comment. She left the White House in December, both proud of her service and also somewhat stung by her experience in Washington, friends said.

Those close to Donaldson fear she will be thrust in the middle of the building war between congressional Democrats and the White House. Some privately worry she could become a target of the president, despite having worked hard to help implement his agenda.

“My only concern for her now is not getting too caught up in this Washington meat grinder, when she really did the right thing and cooperated as she was directed,” said former Republican senator Luther Strange, who hired Donaldson to work in his law firm in Alabama.

Documenting worries about obstruction

As McGahn’s chief of staff, Donaldson was charged with managing 30 to 40 lawyers in the counsel’s office, getting White House policies legally vetted, keeping judicial nominations on track and working with McGahn on Trump’s top priorities.

Along the way, she did what virtually all lawyers consider a necessity: kept a record of decisions, disputes, and tasks left to do. Nearly every day, when McGahn emerged from the Oval Office or other West Wing meetings, she would take notes as he recalled significant discussions with the president and his team, according to people familiar with her role.

In the case of Nixon, the discovery of his White House taping system provided unquestionable proof of his role in a coverup of his campaign’s illegal spying on opponents, precipitating his resignation in 1974.

In Trump’s case, Donaldson’s notes depict McGahn and others as worried that the president could be accused of criminal obstruction — and as seeking to protect him from his impulses.

In an entry on March 21, 2017, Donaldson recounts how Trump told McGahn he was furious with the testimony that Comey gave to Congress about the Russia probe the day before, sounding as if he might fire him on the spot. The president felt betrayed that Comey had failed to do as Trump had asked: to tell the public that he was not personally under investigation.

“beside himself,” she wrote of the president. “getting hotter and hotter, get rid?”

McGahn was so concerned that Comey’s firing was imminent that the counsel’s office drafted a memo analyzing the president’s legal authority to do so, according to the report.

McGahn’s lawyer William Burck declined to comment.

That day, Trump repeatedly pressured McGahn to get the Justice Department to intervene, Donaldson later told investigators. McGahn then called Assistant Attorney General Dana Boente asking whether officials could “correct the misperception that the President was under investigation,” the report said.

At one point, McGahn warned the president that some of the actions he took — such as asking Comey to let go of his investigation of Flynn — could make him vulnerable to accusations of obstruction of justice. “biggest exposure . . . other contacts . . . calls . . . ask re: Flynn,” Donaldson wrote that day.

White House aides who know Donaldson said they are confident her notes are an accurate account of events in Trump’s White House.

For her part, Donaldson is dismayed her confidential work product — documenting sensitive conversations with the president that would normally be shielded from public view by executive privilege — is available for all to see, colleagues said.

“I doubt she had any notion that these notes would ever end up in anyone’s hands, let alone Mueller’s,” said one former White House official, who requested anonymity to describe internal dynamics.

White House advisers expect records of their confidential advice to the president to stay private, probably for decades, until they are released for historical archives.

Bob Bauer, who served as White House counsel to President Barack Obama, said Donaldson’s notes bring the unprecedented nature of the Trump presidency into immediate focus.

“It is impossible to imagine that these extensive notes were taken for any reason other than to document questionable presidential conduct and the counsel’s office response,” Bauer said. “It speaks volumes to the extraordinary challenges facing lawyers in this White House, and it raises the question: If this is what is necessary for lawyers to do their job, then how is it a job the lawyers should agree to do?”

Friends and colleagues said McGahn trusted Donaldson, who worked as his associate at Jones Day, to make tough calls without him and to lead a team of deputies with their own impressive legal pedigrees.

He had once compared their work relationship to that of a football coach and a defensive coordinator, according to one colleague. They had walked through all the films and plays together for so long that Donaldson knew his mind.

'The glue that held this all together'
As McGahn drank from a fire hose of meetings, deregulation debates and legal disputes, Donaldson was known for her careful tracking of small details.

She met McGahn each morning with a to-do list she wanted him to tackle, and she gave similar lists to deputy counsels and associate lawyers.

White House aides praised her ability to get the often prickly factions within the White House to respond to her requests. She sought to make sure McGahn was included in meetings in which some Trump advisers tried to avoid the lawyer’s input. She displayed a quiet confidence, often speaking toward the end of a meeting rather than first, and made her points slowly and precisely.

“She has a true desire to get things done,” said her friend and former boss Katie Biber, who worked with Donaldson on the 2008 Mitt Romney presidential campaign. “She’s not trying to get credit.”

“Don may have been the White House counsel, but Annie is the glue that held this all together,” she added.

There was one major exception to her low-key ways: Donaldson’s red Corvette, an older model that once bore the vanity plate “RLL TIDE” in honor of her alma mater, the University of Alabama.

She parked the Corvette on West Executive Drive; other senior White House aides would spot it there when they arrived for work and see it still there when they headed home, as she often arrived at the White House at 7 a.m. and stayed until 9 p.m.

“The entire West Wing knew it was her car. It was always there,” said one former administration official. “You’d walk in on a Saturday and see it: ‘Oh yeah, Annie’s already here.’”

Donaldson had the legal credentials to pursue a Supreme Court clerkship, but she was smitten with politics, friends said. She joined Romney’s presidential campaign in 2007, and when he lost the Republican primary to John McCain, she applied to Harvard Law.

At Harvard, she served as both an editor of the Harvard Law Review and executive editor of its conservative sister publication, the Harvard Journal of Law and Public Policy, a bastion of the Federalist Society.

After graduating, she got a job as an associate lawyer at Patton Boggs, where she met McGahn. She worked for Romney’s second presidential bid as a campaign lawyer in 2012, and then followed McGahn to work for him at Jones Day. There, she joined him in his work as legal counsel for the Trump campaign.

At the White House, Donaldson played a significant role in helping push forward Trump’s judicial nominations; a record 30 were seated on federal appellate courts in his first two years, double the number of any previous administration.

“Annie is going to go down in history as a real unsung hero of the judicial nominations process,” Biber said.

But one nomination painfully singed Donaldson and her husband Brett Talley. Trump nominated Talley for a federal district court seat in Alabama, but he was among a rare handful of nominees whom the American Bar Association rated “not qualified.”

Talley, who was a deputy in the Justice Department’s Office of Legal Policy, had never tried a case in court. He withdrew his nomination amid questions that he failed to disclose he was married to a White House lawyer on public forms asking if any of his family could create potential conflicts. Donaldson had recused herself from involvement in his nomination.

After just eight months in the job, Donaldson would learn her notes were going to be turned over to federal investigators.

Trump reacted angrily when he learned from a news report in February 2018 that McGahn kept a written record of their encounters, according to Mueller’s report.

“What about these notes? Why do you take notes?” Trump asked McGahn during a tense Oval Office confrontation. “Lawyers don’t take notes. I never had a lawyer who took notes.” (McGahn told investigators Trump was referring to Donaldson’s notes, which the president thought of as McGahn’s.)

McGahn responded to the president that he keeps notes because he is a “real lawyer” and explained that notes create a record and are not a bad thing, according to the report.

Trump replied: “I’ve had a lot of great lawyers, like Roy Cohn. He did not take notes.”

In the end, the president’s desire for the investigation to come to a close ultimately led to the release of Donaldson’s precise description of events. In an effort to speed up Mueller’s review, then-White House lawyer Ty Cobb embraced a strategy of turning over all the administration’s records to Mueller.

McGahn privately warned that the approach would force him to divulge highly sensitive and privileged communications, and increase the chances that they would become public. His forecast proved true.

#Resist

[Athos_131]

William Barr’s 2 strangest defenses of Trump haven’t gotten enough attention

Democrats have accused Attorney General William P. Barr of shilling for President Trump and effectively acting like his defense lawyer. The Post reports Friday morning on the question of whether that is really what is going on, or whether Barr simply has a broad view of executive authority.

But two of Barr’s strangest claims in this debate have gotten short shrift. On some of the weightiest questions about obstruction of justice, Barr has made pro-Trump arguments that are at odds with what Robert S. Mueller III wrote in his report.

1. The lack of an underlying crime
The first is his emphasis on the supposed lack of an underlying crime. I flagged this when he included it in his initial letter about the Mueller report. He suggested that the lack of a conspiracy with the Russian government was a mitigating circumstance when it came to whether Trump obstructed justice. As a result, he decided not to accuse Trump.

He returned to this point in his testimony Wednesday.

“Well, generally speaking, an obstruction case typically has two aspects to it. One, there’s usually an underlying criminality,” Barr said, before being cut off. He went on: “It’s not necessary, but the typical — sort of the paradigmatic case is, there’s an underlying crime, and then the person implicated or people implicated are concerned about that criminality being discovered, take an inherently malignant act, as the Supreme Court has said, to obstruct that investigation, such as destroying documents.”

As he does in his letter, Barr is careful to emphasize that this is not a necessary component. But he repeatedly brings it up, which suggests he believes it mattered in this case.

“What is the impact of taking away the underlying crime?” he mused at one point. He later returned to it and said: “The point I was trying to make earlier is that in the situation of the president, who has constitutional authority to supervise proceedings — if in fact a proceeding was not well-founded, if it was a groundless proceeding, if it was based on false allegations, the president does not have to sit there, constitutionally, and allow it to run its course.”

The experts I talked to said Barr’s emphasis of this point was odd. There is also the fact that crimes were uncovered in this investigation — just not one for conspiring with Russia.

But even if you set those aside, the Mueller report itself seems to rebut Barr’s point — rather directly. Here’s the key section:

As described in Volume I, the evidence uncovered in the investigation did not establish that the President or those close to him were involved in the charged Russian computer-hacking or active-measure conspiracies, or that the President otherwise had an unlawful relationship with any Russian official. But the evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns.

That looks a whole lot like Mueller dismissing the importance of the lack of a provable conspiracy with Russia.

Barr did bring this section up in his testimony, but only briefly, and he quickly dispensed with it — again arguing that this could simply be about Trump reacting to false allegations. But Mueller seems to place much more weight on other very plausible, corrupt motives for Trump’s obstructive acts. In fact, he outlines at least five events in which he says the evidence supports the three key criteria for obstruction, including a corrupt intent.

2. Mueller’s private obstruction comments
The second strange claim Barr keeps revisiting is Mueller’s private comments about whether he found a crime. Mueller in his report said he was not making a “traditional prosecutorial judgment” on that point, but he said it was because of Justice Department Office of Legal Counsel (OLC) policy against indicting a sitting president — not the evidence.

Barr said in his news conference before the release of the Mueller report: “We specifically asked him about the OLC opinion and whether he was taking a position that he would have found a crime but for the existence of the OLC opinion. And he made it very clear several times that that was not his position. He was not saying that, but for the OLC opinion, he would have found a crime."

Barr echoed this twice in his Wednesday testimony: “Special counsel Mueller stated three times to us in that meeting in response to our questioning that he emphatically was not saying that, but for the OLC opinion, he would have found obstruction."

That sounds a lot like Barr saying, Mueller admitted that the evidence wasn’t there on obstruction. But a close examination of Barr’s account indicates that was not really what Mueller was saying. According to Barr’s version, Mueller merely said he had not made a private determination that there was obstruction. And it’s entirely possible that was because he decided it simply was not his place to do so.

But let’s say, hypothetically, that Mueller did, in fact, decide that proof of obstruction simply wasn’t there. Why would he say that and allow Barr to broadcast it? It would seem to defeat the purpose of saying you’re not making a traditional prosecutorial judgment if you’re just going to make that judgment known outside the context of the report.

We’ll have to wait and see what Mueller says, if and when he testifies. But it looks a whole lot like he was simply saying that he had not even attempted to decide if Trump’s actions were criminal, and he did not attempt to do so because it was not his job. Yet Barr keeps bringing it up in ways that make it sound like Mueller found the evidence to be insufficient.

#Resist

[Athos_131]

In reversal, Trump says Mueller ‘should not testify’ before Congress

President Trump said Sunday that special counsel Robert S. Mueller III should not testify before Congress, reversing course from his previous position that the decision is up to Attorney General William P. Barr.

“Bob Mueller should not testify,” Trump said in an afternoon tweet. “No redos for the Dems!”

Trump also insisted that Mueller’s 448-page report found “no collusion” and “no obstruction,” overstating the conclusions of the nearly two-year investigation. A redacted version of the document has been released; congressional Democrats are battling with Barr to get the full report.

In the report, Mueller’s team wrote that while the investigation established that the Trump campaign “expected it would benefit electorally from” information stolen in Russia-backed efforts, it “did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.”

Mueller also found 10 “episodes” of potential obstruction of justice but ultimately concluded that it was not his decision to determine whether Trump broke the law.

The House Judiciary Committee has been seeking to hear from Mueller amid disagreements about whether Barr mischaracterized the special counsel’s report in his congressional testimony and statements.

Trump’s Sunday tweet marks a shift from what he said Friday during an exchange with reporters in the Oval Office. Asked then whether Mueller should testify before Congress and whether he would like to see the special counsel do so, Trump replied, “I don’t know. That’s up to our attorney general, who I think has done a fantastic job.”

Barr said at a news conference last month — and reiterated during his testimony last week before the Senate Judiciary Committee — that he has no objection to Mueller testifying.

Trump and House Democrats are locked in a battle over congressional oversight, with the president refusing to cooperate with multiple Capitol Hill investigations seeking witnesses, documents and his tax returns. The president has vowed to “fight all the subpoenas” from Democrats, sued to block compliance by accounting firms and banks, and instructed aides to ignore the repeated requests from Congress.

The tensions between the Trump administration and Congress could come to a head as early as this week, when House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) said his panel will probably adopt a contempt citation against Barr unless he provides the full, unredacted Mueller report.

Democrats aren’t alone in seeking Mueller’s testimony. Early last month, the top Republican on the Judiciary Committee, Rep. Douglas A. Collins (Ga.) urged Nadler to invite Mueller to testify, writing in a letter to the chairman, “If you seek both transparency and for the American public to learn the full contours of the Special Counsel’s investigation, public testimony from Special Counsel Mueller himself is undoubtedly the best way to accomplish this goal.”

In an appearance on CBS’s “Face the Nation” Sunday, Collins mentioned the letter and said of Mueller: “He’s the one that is the central figure here.”

Trump’s reversal on Mueller testifying came hours after a key member of the House Judiciary Committee said that the panel has proposed a date of May 15 for Mueller to testify but that no agreement has been reached yet.

Rep. David N. Cicilline (D-R.I.) said Sunday morning during an appearance on “Fox News Sunday” that a “tentative date has been set” for Mueller’s testimony. But he said in a later tweet that he had misspoken.

“Just to clarify: we are aiming to bring Mueller in on the 15th, but nothing has been agreed to yet,” Cicilline said in the tweet. “That’s the date the Committee has proposed, and we hope the Special Counsel will agree to it. Sorry for the confusion.”

A spokesman for Mueller declined to comment.

In late March, Mueller wrote a letter to Barr voicing dissatisfaction that a four-page memo to Congress describing the principal conclusions of his investigation into the president “did not fully capture the context, nature, and substance” of his work.

Barr defended his handling of the case during a contentious Senate Judiciary Committee hearing last week. He repeatedly denied accusations and insinuations by Democrats that he had lied or misrepresented anything.

“I wasn’t hiding the ball,” Barr told Sen. Christopher A. Coons (D-Del.), who pressed the attorney general on whether he omitted key details of Mueller’s report from his initial account of the findings.

In his “Fox News Sunday” interview, Cicilline said the panel hopes Mueller will agree to testify.

“We think the American people have a right to hear directly from him,” he said.

Asked whether Mueller has agreed, Cicilline responded: “The representative for the special counsel has, but, obviously, until the date comes, we never have an absolute guarantee.”

Rep. Adam B. Schiff (D-Calif.), chairman of the House Intelligence Committee, said Mueller and former White House counsel Donald McGahn should testify.

“Barr’s testimony alone — designed to protect Trump — isn’t going to cut it. They will testify. The American people deserve the truth,” Schiff said.

Senate Minority Leader Charles E. Schumer (D-N.Y.) responded to Trump with his own tweet.

“First @realDonaldTrump repeatedly tried to fire Mueller. Then he refused to be interviewed by Mueller. Now he’s trying to silence Mueller. For a man who constantly proclaims his innocence, @realDonaldTrump is acting awfully guilty. Mueller must testify publicly before Congress.”

Pretty sure you don't get to make that decision, Donnie.

#Resist

[Lois]

So Trump does not want Mueller to testify?

Isn't that special. 

[Athos_131]

Funny you mention that...

Trump tries to silence another witness

First it was the former White House counsel. Now it is special counsel Robert S. Mueller III. In both cases, President Trump — seemingly petrified of witnesses concerning a report in which he claims to have been exonerated — has tried to suppress testimony from those with the most damning evidence of Trump’s obstruction of justice.

The Post reports, “President Trump said Sunday that special counsel Robert S. Mueller III should not testify before Congress, reversing course from his previous position that the decision is up to Attorney General William P. Barr. ‘Bob Mueller should not testify,’ Trump said in an afternoon tweet. ‘No redos for the Dems!’” The House Judiciary Committee is seeking to have Mueller testify on May 15.

Mueller’s testimony would not be a redo, but it could demolish Trump and Attorney General William P. Barr’s canard that Trump is guilty of nothing. It’s an opportunity to explain what is in the report and review the 10 episodes of conduct that could support a charge of obstruction of justice. Trump and Barr have been overstating and misconstruing the report to such an extent that many Americans — who don’t have time to read a 448-page report — are genuinely confused. The last thing Trump wants is an accurate accounting of the report and his misdeeds.

As former prosecutor Joyce White Vance tells me, “If Trump has nothing to worry about, he’d be scheduling Mueller’s testimony himself. His concern is a red flag.”

So can he stop Mueller from testifying? “Of course there is no way Trump can stop Bob Mueller from testifying,” constitutional lawyer Laurence Tribe tells me. “There is no executive privilege between them, and obviously no attorney-client privilege, and Mueller doesn’t even work for Trump.” Tribe continues, “Until he leaves [the Justice Department], he works for Barr. And Barr has no conceivable basis to stop Mueller from testifying.” In any event, Tribe explains, “Mueller is free to leave [Justice] at any time and will then be simply a private citizen.”

He’ll be as unsuccessful in stopping private citizen Mueller from testifying as he has been in preventing former White House counsel Donald McGahn from telling his story. “Only a dictator can tell a private citizen not to testify in a duly constituted legislative or parliamentary inquiry into the head of state’s conduct,” Tribe concludes. “And though Trump might fancy himself a dictator, that’s not the reality. Not yet, anyway.”

Trump had no luck halting former acting attorney general Sally Yates from testifying, former Justice spokesman Matthew Miller says.

Trump must be frustrated. His spin works only when the facts are hidden or too complicated to unravel. Put the facts out in plain sight, have someone more credible than Trump (an open-ended category) explain what has happened and — poof! — Trump’s smokescreen, the nonsensical patter coming from Fox News hosts and the incoherent arguments from Trump’s TV lawyer, Rudolph W. Giuliani, will vanish.

And make no mistake: According to a new NBC News-Wall Street Journal poll, voters by a substantial margin think more highly of Mueller (net +12 favorability), Democrats (-5) and even Barr (-7) than they do Trump (-10). Sixty percent say Trump is not honest or truthful about Mueller’s investigation, and by a 42-to-29-percent margin, voters already understand that the report doesn’t clear Trump. It may be wrongheaded and fruitless, but you can understand why Trump is trying every trick to shield voters from the full impact of the report. It paints a portrait of a president desperately trying to stop an inquiry into him, which is exactly what he continues to do.

#Resist

[Athos_131]

Trump would have been charged with obstruction were he not president, hundreds of former federal prosecutors assert

More than 370 former federal prosecutors who worked in Republican and Democratic administrations have signed on to a statement asserting special counsel Robert S. Mueller III’s findings would have produced obstruction charges against President Trump — if not for the office he held.

The statement — signed by myriad former career government employees, as well as high-profile political appointees — offers a rebuttal to Attorney General William P. Barr’s determination that the evidence Mueller uncovered was “not sufficient” to establish Trump committed a crime.

Mueller himself had declined to say one way or the other whether Trump should have been charged, citing a Justice Department legal opinion that sitting presidents cannot be indicted, as well as concerns about the fairness of accusing someone for whom there can be no court proceeding.

“Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice,” the former federal prosecutors wrote.

“We emphasize that these are not matters of close professional judgment,” they added. “Of course, there are potential defenses or arguments that could be raised in response to an indictment of the nature we describe here . . . But, to look at these facts and say that a prosecutor could not probably sustain a conviction for obstruction of justice — the standard set out in Principles of Federal Prosecution — runs counter to logic and our experience.”

The statement is notable for the number of people who signed it — 375, as of Monday afternoon — and the positions and political affiliations of some on the list. It was posted online Monday afternoon; those signing it did not explicitly address what, if anything, they hope might happen next.

Among the high-profile signers are Bill Weld, a former U.S. attorney and Justice Department official in the Reagan administration who is running against Trump as a Republican; Donald Ayer, a former deputy attorney general in the George H.W. Bush Administration; John S. Martin, a former U.S. attorney and federal judge appointed to his posts by two Republican presidents; Paul Rosenzweig, who served as senior counsel to independent counsel Kenneth Starr; and Jeffrey Harris, who worked as the principal assistant to Rudolph W. Giuliani when he was at the Justice Department in the Reagan administration.

The list also includes more than 20 former U.S. attorneys, and more than 100 people with at least 20 years of service at the Justice Department — most of them former career officials. The signers worked in every presidential administration since that of Dwight D. Eisenhower.

The signatures were collected by the nonprofit group Protect Democracy, which counts Justice Department alums among its staff and was contacted about the statement last week by a group of former federal prosecutors, said Justin Vail, an attorney at Protect Democracy.

“We strongly believe that Americans deserve to hear from the men and women who spent their careers weighing evidence and making decisions about whether it was sufficient to justify prosecution, so we agreed to send out a call for signatories,” Vail said. “The response was overwhelming. This effort reflects the voices of former prosecutors who have served at DOJ and signed the statement.”

A spokesman for the special counsel’s office declined to comment. A spokeswoman for the Justice Department referred a reporter to Barr’s previous public statements on the subject.

Many legal analysts have wondered since Mueller’s report was released whether the special counsel believed he had sufficient evidence to charge Trump and was just unwilling to say it out loud.

By the report’s account, Trump — after learning he was being investigated for obstruction — told his White House counsel to have Mueller removed. And when that did not work, according to Mueller’s report, Trump tried to have a message passed to Attorney General Jeff Sessions to limit the scope of Mueller’s authority. Of that episode, Mueller’s team wrote there was “substantial evidence” to indicate Trump was trying to “prevent further investigative scrutiny” of himself and his campaign.

“All of this conduct — trying to control and impede the investigation against the President by leveraging his authority over others — is similar to conduct we have seen charged against other public officials and people in powerful positions,” the former federal prosecutors wrote in their letter.

They wrote that prosecuting such cases was “critical because unchecked obstruction — which allows intentional interference with criminal investigations to go unpunished — puts our whole system of justice at risk.”

Mueller’s team, though, wrote that they determined not to make a “traditional prosecutorial judgment” in part because of the Justice Department opinion on not indicting sitting presidents, and that the evidence obtained “presents difficult issues that would need to be resolved” if they were to do so.

“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,” Mueller’s team wrote.

After receiving Mueller’s report, Barr said he and Deputy Attorney General Rod J. Rosenstein reviewed the case themselves and determined the evidence was not there. He offered a robust defense of that decision at a recent congressional hearing, detailing for lawmakers possible defenses Trump could have raised in each episode.

“The government has to prove things beyond a reasonable doubt,” Barr said. “And, as the report shows, there’s ample evidence on the other side of the ledger that would prevent the government from establishing that.”

#Resist

[Athos_131]

#Resist

[Athos_131]

STATEMENT BY FORMER FEDERAL PROSECUTORS

We are former federal prosecutors. We served under both Republican and Democratic administrations at different levels of the federal system: as line attorneys, supervisors, special prosecutors, United States Attorneys, and senior officials at the Department of Justice. The offices in which we served were small, medium, and large; urban, suburban, and rural; and located in all parts of our country.

Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.

The Mueller report describes several acts that satisfy all of the elements for an obstruction charge: conduct that obstructed or attempted to obstruct the truth-finding process, as to which the evidence of corrupt intent and connection to pending proceedings is overwhelming. These include:

· The President’s efforts to fire Mueller and to falsify evidence about that effort;

· The President’s efforts to limit the scope of Mueller’s investigation to exclude his conduct; and

· The President’s efforts to prevent witnesses from cooperating with investigators probing him and his campaign.

Attempts to fire Mueller and then create false evidence

Despite being advised by then-White House Counsel Don McGahn that he could face legal jeopardy for doing so, Trump directed McGahn on multiple occasions to fire Mueller or to gin up false conflicts of interest as a pretext for getting rid of the Special Counsel. When these acts began to come into public view, Trump made “repeated efforts to have McGahn deny the story” — going so far as to tell McGahn to write a letter “for our files” falsely denying that Trump had directed Mueller’s termination.

Firing Mueller would have seriously impeded the investigation of the President and his associates — obstruction in its most literal sense. Directing the creation of false government records in order to prevent or discredit truthful testimony is similarly unlawful. The Special Counsel’s report states: “Substantial evidence indicates that in repeatedly urging McGahn to dispute that he was ordered to have the Special Counsel terminated, the President acted for the purpose of influencing McGahn’s account in order to deflect or prevent scrutiny of the President’s conduct toward the investigation.”

Attempts to limit the Mueller investigation

The report describes multiple efforts by the president to curtail the scope of the Special Counsel’s investigation.

First, the President repeatedly pressured then-Attorney General Jeff Sessions to reverse his legally-mandated decision to recuse himself from the investigation. The President’s stated reason was that he wanted an attorney general who would “protect” him, including from the Special Counsel investigation. He also directed then-White House Chief of Staff Reince Priebus to fire Sessions and Priebus refused.

Second, after McGahn told the President that he could not contact Sessions himself to discuss the investigation, Trump went outside the White House, instructing his former campaign manager, Corey Lewandowski, to carry a demand to Sessions to direct Mueller to confine his investigation to future elections. Lewandowski tried and failed to contact Sessions in private. After a second meeting with Trump, Lewandowski passed Trump’s message to senior White House official Rick Dearborn, who Lewandowski thought would be a better messenger because of his prior relationship with Sessions. Dearborn did not pass along Trump’s message.

As the report explains, “ubstantial evidence indicates that the President’s effort to have Sessions limit the scope of the Special Counsel’s investigation to future election interference was intended to prevent further investigative scrutiny of the President’s and his campaign’s conduct” — in other words, the President employed a private citizen to try to get the Attorney General to limit the scope of an ongoing investigation into the President and his associates.

All of this conduct — trying to control and impede the investigation against the President by leveraging his authority over others — is similar to conduct we have seen charged against other public officials and people in powerful positions.

Witness tampering and intimidation

The Special Counsel’s report establishes that the President tried to influence the decisions of both Michael Cohen and Paul Manafort with regard to cooperating with investigators. Some of this tampering and intimidation, including the dangling of pardons, was done in plain sight via tweets and public statements; other such behavior was done via private messages through private attorneys, such as Trump counsel Rudy Giuliani’s message to Cohen’s lawyer that Cohen should “leep well tonight[], you have friends in high places.”

Of course, these aren’t the only acts of potential obstruction detailed by the Special Counsel. It would be well within the purview of normal prosecutorial judgment also to charge other acts detailed in the report.

We emphasize that these are not matters of close professional judgment. Of course, there are potential defenses or arguments that could be raised in response to an indictment of the nature we describe here. In our system, every accused person is presumed innocent and it is always the government’s burden to prove its case beyond a reasonable doubt. But, to look at these facts and say that a prosecutor could not probably sustain a conviction for obstruction of justice — the standard set out in Principles of Federal Prosecution — runs counter to logic and our experience.

As former federal prosecutors, we recognize that prosecuting obstruction of justice cases is critical because unchecked obstruction — which allows intentional interference with criminal investigations to go unpunished — puts our whole system of justice at risk. We believe strongly that, but for the OLC memo, the overwhelming weight of professional judgment would come down in favor of prosecution for the conduct outlined in the Mueller Report.

#Resist

[Athos_131]

Who signed the letter asserting Trump would have been charged with obstruction if he weren’t president, and what they hope happens next

By early Tuesday evening, more than 720 former federal prosecutors who worked in Democratic and Republican administrations had signed a letter asserting that President Trump would have been charged with obstructing justice based on special counsel Robert S. Mueller III’s findings — if Trump were not the president.

The signers included some left-leaning lawyers who have gained prominence from their frequent TV appearances, but also a significant number of career prosecutors and high-profile conservatives who bristle at the suggestion they were motivated by anti-Trump bias.

A handful interviewed by The Post on Tuesday said they hoped for little else than to make public their view that Attorney General William P. Barr had mischaracterized Mueller’s report in asserting it laid out insufficient evidence to make an obstruction case. They said they did not sign hoping to spark impeachment proceedings.

The group’s views stand in stark contrast to those of Barr’s — who has offered detailed defenses of his decision that there was not a case to be made — and to many Republican lawmakers. Senate Majority Leader Mitch McConnell (Ky.) declared in a speech Tuesday that Democrats should move on from the investigations into Trump, asserting bluntly, “case closed.”

Mueller himself left the question open, saying a Justice Department Office of Legal Counsel opinion that a sitting president cannot be indicted prevented him from saying even in a confidential report whether he believed the president committed a crime.

Among the notable names in the group of letter signers was Elkan Abramowitz, a former federal prosecutor in New York who has gained attention recently for representing David Pecker, the chief executive of American Media Inc. (AMI).

Trump and Pecker had been longtime friends, though their relationship collapsed as federal authorities explored AMI’s role in hush-money payments Trump arranged to be sent to women to keep quiet about alleged affairs. Pecker was involved in the effort, and AMI ultimately acknowledged its role.

Abramowitz, a Democrat, said he signed the letter because he found Barr’s statements about Mueller’s report “so unbelievably misleading that I thought a clear statement of what the report said was in order.” He said his signature had “nothing to do” with Pecker or any other client.

“The line in his testimony where he said that the president, ‘if he thought any investigation of him was not fair he could stop it,’ was really — not only destructive and wrong — it was stupid,” Abramowitz said, referring to Barr’s testimony before the Senate Judiciary Committee. “Everybody I represent says that the investigation of them is unfair, and they have very sincerely held beliefs that the investigation is unfair. It was just an absurd statement.”

Jeffrey Harris, a former assistant U.S. Attorney in New York and longtime friend of Trump lawyer Rudolph W. Giuliani, said he first saw the letter when it was blasted out to an email group for former federal prosecutors. He said he signed because if he had a case involving even one of the incidents Mueller described, “I would have clearly prosecuted that person or persons, and I can tell you, when Rudy was a prosecutor, he would’ve done the same thing.”

“Whether to prosecute this kind of conduct was not a close prosecutorial call,” Harris said. “This was a no brainer.”

Harris served as Giuliani’s top deputy when Giuliani served as the No. 3 Justice Department official in the Reagan administration and said the two once socialized regularly, though they haven’t been in touch in recent years, Harris said. Giuliani said in a text message: “I would not bring a case where there is no underlying crime and nothing actually obstructed. Jeff was a Dem, I believe, and I doubt he voted for Trump. Indeed I’m not sure any of them, Rs or Ds. supported Trump. What prosecutors would offer a gratuitous opinion on a case they didn’t investigate.”

He said while he has “great affection” for Harris, his former colleague was ignoring critical aspects of Mueller’s report. For example, Giuliani said, Mueller’s assertion that he could not “exonerate” Trump was “a perversion of the 2,000 year old burden in any case.”

“Prosecutors don’t exonerate,” he said.

“That requires proving a negative that most often is impossible.”

Harris said he is a longtime Republican but registered as a Democrat to vote in primary elections when he moved to Washington, which picks most of its officeholders in primaries because its voters are overwhelmingly Democratic.

Harris said the letter already seems to have accomplished its main mission, alerting the public “that there are a large number of former professional prosecutors and Department of Justice attorneys who think that the public statements of Barr and Giuliani and the like that there’s nothing to see here is absolutely wrong.” He said he is ambivalent about the letter’s potential impact on possible impeachment efforts — because he knows the Senate would not vote to remove Trump from office.

“I would like to see this guy leave office at the soonest opportunity by any legal means. Do I think impeachment is going to accomplish that? I don’t. Do I think this will help in the next election cycle? I hope it does,” Harris said.

Paul Rosenzweig, who served as senior counsel to independent counsel Kenneth W. Starr, said he signed the letter to present a “counterpoint” to the narrative Barr had advanced that the evidence was insufficient to accuse Trump of obstructing justice.

Rosenzweig — a longtime member of the conservative Federalist Society group who said his “views on substantive issues are as far from liberal as you can imagine on most things” — said while he supported Bill Clinton’s impeachment, he was not in as strong a position to judge whether lawmakers should pursue the same result for Trump.

Signing the letter, he said, was “more about the public, and it was more about correcting what I think was the erroneous record that was created by the attorney general.”

“I don’t have any hopes,” he said. “I think it’s important to say that Trump’s conduct violated criminal law, and that if he were another person, he’d be prosecuted.” He added he hopes people “take that into account when they cast their next ballot.”

Donald Ayer, a deputy attorney general in the George H.W. Bush administration, said he saw the statement in a draft form last week, and he soon began circulating it among other former prosecutors who felt Barr’s characterization of Mueller’s report belied its content.

“We just felt a need to tell the American people from the perspective of unbiased observers who at different times in our lives have done this for a living that there really is a case here,” he said, adding later, “I sort of feel like, if you’re in a position to say something that anybody might care about you saying — and it’s important — a lot of the time you probably ought to say it.”

As to what happens next, though, Ayer said he takes no position.

“I don’t really have a specific aspiration, other than that I hope people will pay some attention and maybe themselves read the report and think about what would happen to an ordinary person who had done the things that were shown to be done here.” Ayer said.

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Senate panel subpoenas Donald Trump Jr.

The Republican-led Senate Intelligence Committee has subpoenaed Donald Trump Jr. in connection with the panel’s Russia investigation, the first known congressional subpoena to one of President Trump’s children.

Axios first reported the subpoena, and a source confirmed it to The Hill.

Trump Jr. already testified behind closed doors before the House and Senate Intelligence panels in December 2017 as part of their investigations into Moscow's interference in the 2016 election. Neither committee has released a transcript of his closed-door hearing.

The president’s eldest son also testified to the Senate Judiciary Committee in September 2017, telling lawmakers that he was “peripherally aware” of plans to expand his father’s businesses into Russia, according to a transcript that was later released by the committee.

Trump Jr.’s testimony has fallen under scrutiny, particularly after the president’s former personal attorney Michael Cohen claimed in his February testimony to the House Oversight and Reform Committee that Trump Jr. was far more involved in the Moscow Trump Tower project and that he briefed both Trump Jr. and Ivanka Trump on the project about 10 times.

Cohen, who pleaded guilty last November to lying about discussions on the Moscow plans within the Trump Organization, delivered marathon closed-door testimony before the Senate Intelligence Committee a day before his House appearance.

A Senate Intelligence spokesperson would not confirm the subpoena, but noted in a statement to The Hill that the panel has “reserved the right to recall witnesses for additional testimony as needed.”

"We do not discuss the details of witness engagements with the Committee," the spokesperson said.

It was not immediately clear how Trump Jr. would respond to the subpoena. His attorney, Alan Futerfas, did not immediately return a request for more information.

A source close to Trump Jr., criticized Democrats for issuing the subpoena, nothing that he had already appeared voluntarily before the Senate Intelligence Committee.

"Don is a private citizen, who has already been cleared by Mueller after a two year investigation," the source said, referring to special counsel Robert Mueller.

"He has done 8-9 hours of testimony in front of Senate Intel already and 27 hours of testimony in front of various committees in total," the source said.

The source also took a shot at the panel's chairman, Sen. Richard Burr (R-N.C.), by arguing that he should have stood up to ranking member Mark Warner (D-Va.) and not insisted on additional testimony from Trump Jr.

"When he originally agreed to testify in front of the Senate Intel Committee in 2017, there was an agreement between Don and the Committee that he would only have to come in and testify a single time as long as he was willing to stay for as long as they’d like, which Don did," the source said.

"Don continues to cooperate by producing documents and is willing to answer written questions, but no lawyer would ever agree to allow their client to participate in what is an obvious PR stunt from a so-called 'Republican' senator too cowardly to stand up to his boss Mark Warner and the rest of the resistance Democrats on the committee."

The Senate Intelligence panel has been conducting its investigation into Russian interference since January 2017, and Burr has signaled he expects the probe to wrap up in the coming months as the panel finishes interviewing additional witnesses.

Trump son-in-law and senior adviser Jared Kushner was spotted returning to the committee for closed-door testimony in late March, reportedly in connection with the Russia investigation.

The Senate probe has run parallel to special counsel Robert Mueller’s Russia investigation, which concluded on March 22 without a recommendation of further indictments.

Mueller did not find evidence to charge members of the Trump campaign with conspiring with the Russian government and did not reach a conclusion on whether Trump obstructed justice.

Trump Jr., who did not speak with the special counsel, was featured in the report, including in a section detailing his involvement in a June 2016 meeting between the campaign and a Kremlin-backed lawyer at Trump Tower.

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House panel votes to hold Barr in contempt; Trump asserts executive privilege over Mueller report

President Trump formally asserted executive privilege over special counsel Robert S. Mueller III’s report Wednesday, his first use of the executive authority in the escalating confrontation with Congress.

The move came just hours before the House Judiciary Committee voted along party lines to hold Attorney General William P. Barr in contempt of Congress for refusing to turn over the full, unredacted Mueller report. Democrats have been trying to review Mueller’s material — and determine whether they should impeach the president — by examining the evidence the special counsel gathered over his two-year-long investigation.

But the Justice Department has refused to relinquish that information, despite a congressional subpoena. The Trump Administration cited legal reasons for declining the request and has questioned whether Democrats’ motives constitute “legitimate oversight.”

“As we have repeatedly explained, the Attorney General could not comply with your subpoena in its current form without violating the law, court rules, and court orders, and without threatening the independence of the Department of Justice’s prosecutorial functions,” Assistant Attorney General Stephen E. Boyd wrote in a letter to Congress, formally asserting executive privilege.

The White House’s use of the rare presidential secrecy prerogative stood in stark contrast to Trump and his allies’ frequent boast of “total exoneration” for the president from the Mueller report. Democrats have argued that if Trump really had nothing to hide, he and Barr wouldn’t be blocking so many of their investigations — including Mueller’s complete findings.

The White House assertion of privilege represents the latest collision between Trump and House Democrats, who have seen their investigations of the president blocked at every turn. Some legal experts argued the White House and Attorney General were simply stalling, making a dubious claim of privilege over the Mueller report they have intensively reviewed to put off a fight in court.

Democrats assailed Trump officials and accused the White House of trying to hide the truth from the public.

“This decision represents a clear escalation in the Trump administration’s blanket defiance of Congress’s constitutionally mandated duties,” Nadler said, later adding: “As a coequal branch of government, we must have access to the materials that we need to fulfill our constitutional responsibilities in a manner consistent with past precedent.”

The move against Barr represented just the second time in history that a sitting attorney general would be held in contempt of Congress; the Republican-led House admonished Attorney General Eric Holder in 2012 over his failure to provide documents to Congress.

Barr released a redacted, 448-page version of the Mueller report on April 18 that found no conspiracy between the Trump campaign and Russia, which interfered in the 2016 election. The report also identified 10 instances of possible obstruction of justice by Trump.

[Barr spars with Democrats over ‘snitty’ Mueller letter]

Democrats moved to reprimand Barr for ignoring their congressional subpoena. And during the Wednesday contempt hearing, they cast the White House claim of privilege as bogus, arguing the administration waived privilege by allowing aides to testify before Mueller — and Barr to release the report to the public.

At the White House press secretary Sarah Sanders defended the decision in a Wednesday morning statement.

“The American people see through Chairman Nadler’s desperate ploy to distract from the president’s historically successful agenda and our booming economy. Neither the White House nor Attorney General Barr will comply with Chairman Nadler’s unlawful and reckless demands,” Sanders said. “Faced with Chairman Nadler’s blatant abuse of power, and at the attorney general’s request, the president has no other option than to make a protective assertion of executive privilege.”

The assertion of privilege was broad — covering all of the underlying materials from Mueller’s investigation, such as reports of interviews and notes of witnesses, as well as the entire, unredacted Mueller report. The Justice Department considered it important for the White House to assert executive privilege before the House vote on contempt because, in their view, doing so would effectively invalidate the citation, a person familiar with the matter said.

The Justice Department believed that Barr could not be legitimately held in contempt for withholding materials over which the president had asserted executive privilege, the person said. Democrats, countered, that that was not the case and redoubled their efforts.

During the Judiciary session, Democrats and Republicans assailed each other, with the majority accusing the minority of trying to hide the fuller Mueller report from the public while the Republicans said Democrats were being overzealous in their probes.

“The attorney general of the United States refused to provide information that is not privilege and is subject to a subpoena,” said Rep. Ted Deutch (D-Fla.). “There is no privilege for this information. Executive privilege is not a cloak of secrecy that drapes across” Washington, he said.

Republicans used their time to defend Barr’s name and tried to divert the conversation back to the origins of the Russia investigation, accusing the FBI of being guided by anti-Trump bias.

“Bill Barr is following the law and what’s his response? Democrats are going to hold him contempt,” said Rep. Jim Jordan (R-Ohio), “I think it’s all about trying to destroy Bill Barr because Democrats are nervous that he’s going to get to the bottom of everything.”

The GOP has stood steadfast with Trump since he took office, rarely breaking with the president, dismissing the multiple investigations and insisting it was time for Democrats to move on. Rep. Douglas A. Collins (Ga.), the top Republican on the Judiciary Committee, argued against the citation against Barr.

“Why this rush?” he asked. “Without any valid legislative or administrative reason, we can only assume Democrats, led by the chairman, have resolved to sully Bill Barr’s good name and reputation.”

Barr sent a written request to Trump Wednesday morning asking him to assert privilege because the Judiciary Committee had “declined to grant sufficient time” for the Justice Department to review the Mueller materials, which included law enforcement information, information about intelligence sources and methods and grand jury material that would be illegal to release.

“In these circumstances,” Barr wrote, “you may properly assert executive privilege with respect to the entirety of the Department of Justice materials that the Committee has demanded, pending a final decision on the matter.”

Republicans seemed to seize on that reasoning at a hearing Wednesday to discuss the citation.

“You cannot be in contempt for failing to produce what would be illegal to produce without a court order,” said Rep. Louie Gohmert (R-Tex.).

Democrats responded that they were not asking Barr to break the law. They had implored him for months to join them in going to a court to get permission from a judge to release grand jury information protected under the law. Barr, however, refused.

The immediate effects of the White House move to claim executive privilege over the report were not entirely clear for Congress. House Democrats, for example, had plans to subpoena key witnesses mentioned in Mueller’s findings, as they had already done with White House counsel Donald McGahn. Some Democrats mused that such a claim — though they did not feel it was valid — could make it harder to receive documents and testimony from others who cooperated with Mueller.

Nadler, in an interview on CNN Wednesday, indicated that he was less confident that Mueller would testify to Congress despite negotiations between Democrats and representatives for the special counsel.

“I think the president will try to stop Robert Mueller. Whether he will succeed is another question,” Nadler said.   

A Justice Department official said that the assertion of executive privilege Wednesday has “no direct bearing on Special Counsel Mueller’s testimony,” the date and terms of which are still being discussed. But the move could limit what Mueller can say indirectly, by putting particular subject areas off limits.

The Justice Department previewed the news on Tuesday evening. In a late-night letter to Nadler, Boyd argued that the Justice Department had tried to accommodate Democrats’ demands for the release of the full Mueller report, which the Judiciary panel subpoenaed for its investigation into the president.

But Boyd said that Democrats — who made a counteroffer to the Justice Department in a last-ditch negotiation session to stave off a scheduled contempt vote for Barr Wednesday morning — “has responded to our accommodation efforts by escalating its unreasonable demands.”

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