The Jury Talks Back

4/18/2019

The Mueller Report: Preliminary Reaction to the Reporting

Filed under: Uncategorized — Patterico @ 6:36 pm

I have not read the report. I’ve been working today. I’ve seen some of the discussion about it and seen some quotes from it that seem worth commentary, but until I read it (and who knows when that will be) this is all tentative.

Basic takeaway: if Trump managed not to obstruct justice, it certainly wasn’t for lack of trying. He tried and tried, but could not get his underlings to monkey with the system as he wanted them to.

As for “collusion”: stop using that word. Mueller did not analyze “collusion.” He found that the investigation did not establish a conspiracy with Russia to interfere with the election. Continued use of the term collusion (given its abuse by both sides, as documented below) serves to obscure rather than enlighten.

Now, the detail:

First, on obstruction: this is just a damning passage:

Our investigation found multiple acts by the President that were capable of exerting undue influence over law enforcement investigations, including the Russian-interference and obstruction investigations. The incidents were often carried out through one-on-one meetings in which the President sought to use his official power outside of usual channels. These actions ranged from efforts to remove the Special Counsel and to reverse the effect of the Attorney General’s recusal; to the attempted use of official power to limit the scope of the investigation; to direct and indirect contacts with witnesses with the potential to influence their testimony. Viewing the acts collectively can help to illuminate their significance. For example, the President’s direction to McGahn to have the Special Counsel removed was followed almost immediately by his direction to Lewandowski to tell the Attorney General to limit the scope of the Russia investigation to prospective election-interference only — a temporal connection that suggests that both acts were taken with a related purpose with respect to the investigation.

The President’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests. Comey did not end the investigation of Flynn, which ultimately resulted in Flynn’s prosecution and conviction for lying to the FBI. McGahn did not tell the Acting Attorney General that the Special Counsel must be removed, but was instead prepared to resign over the President’s order. Lewandowski and Dearborn did not deliver the President’s message to Sessions that he should confine the Russia investigation to future election meddling only. And McGahn refused to recede from his recollections about events surrounding the President’s direction to have the Special Counsel removed, despite the President’s multiple demands that he do so. Consistent with that pattern, the evidence we obtained would not support potential obstruction charges against the President’s aides and associates beyond those already filed.

By the way, when I first discussed the story about Trump ordering McGahn to fire Mueller, commenters mocked the story. I won’t embarrass anyone by name, but check out the comments to my post about it. I’m just saying: when you defend Trump and attack Big Media, you are choosing one of two unreliable narrators. If you defend either narrator with too much gusto and not enough introspection, you could end up looking foolish. Seriously, read the comments to that thread.

On collusion:

I hate to break it to you, but the Mueller report did not find “no collusion.” It found that the investigation failed to establish a “conspiracy” with Russian electoral interference. Period.

There was no collusion finding. At all. No collusion finding.

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.

I’ve seen dopey analysis of this all day. At the gym, I saw a CNN chyron saying “no collusion.” Nope! The report made no such finding. Similarly, I saw a widely cited former federal prosecutor, Renato Mariotti, tweet about Mueller’s “conclusion regarding ‘collusion'” and claim that Mueller “interpreted [collusion] to require an ‘agreement … with the Russian government on election interference.’”

This is entirely wrong, as shown by simply reading the very passage Mariotti quotes. Mueller made no “conclusion regarding ‘collusion'” because (as just explained) Mueller explicitly disclaimed any attempt to analyze the term “collusion” because it has no place in the relevant federal statutes.

Why does this matter? Well, for one thing, all of a sudden you have both sides gaslighting the other side and moving the goalposts all over the place.

On the right, many folks seem to be saying that literally everyone on Earth has been using the term “collusion” to refer to a criminal conspiracy, and to claim otherwise is just gaslighting and goalpost-shifting, and so: Mueller found no collusion! To those who say that literally everyone said collusion necessarily referred only to criminal activity, I respond: did I dream Rudy Giuliani saying “Collusion is not a crime”? No:

Did I dream Donald Trump tweeting: “Collusion is not a crime?” No:

But the left is doing the same kind of gaslighting and goalpost-shifting. To the extent that folks on the left are claiming “we never said the term collusion referred to criminal activity” they are also full of it, because plenty did. Here is Seth Waxman’s pinned tweet:

Waxman Collusion

And here’s PolitiFact claiming that Trump was factually wrong when he said: “Collusion is not a crime.”

PolitiFact Collusion

As my now pinned tweet says:

It’s the first tweet I have ever pinned to my Twitter profile.

My real concern is not a partisan bickering over the meaning of a term that is not used in the law in the relevant context. It’s that a) the Mueller report clearly says that Mueller did not make a ruling on “collusion” but the Attorney General of the United States this morning repeatedly falsely said that Mueller had:

Indeed, as the report states, “[t]he investigation did not identify evidence that any U.S. persons knowingly or intentionally coordinated with the IRA’s interference operation.” Put another way, the Special Counsel found no “collusion” by any Americans in the IRA’s illegal activity.

. . . .

But again, the Special Counsel’s report did not find any evidence that members of the Trump campaign or anyone associated with the campaign conspired or coordinated with the Russian government in its hacking operations. In other words, there was no evidence of Trump campaign “collusion” with the Russian government’s hacking.

. . . .

So that is the bottom line. After nearly two years of investigation, thousands of subpoenas, and hundreds of warrants and witness interviews, the Special Counsel confirmed that the Russian government sponsored efforts to illegally interfere with the 2016 presidential election but did not find that the Trump campaign or other Americans colluded in those schemes.

After finding no underlying collusion with Russia, the Special Counsel’s report goes on to consider whether certain actions of the President could amount to obstruction of the Special Counsel’s investigation.

. . . .

Yet, as he said from the beginning, there was in fact no collusion.

I cannot begin to reconcile these statements with the crystal clear language of Bob Mueller: 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.”

I think Barr’s comments here were disgracefully political, and wholly inaccurate and misleading. Barr repeatedly said that Mueller ruled out “collusion” — something that Mueller said he did not analyze at all.

These comments seriously undercut Barr’s credibility in my eyes — as did his refusal to summarize and/or quote Mueller on obstruction (a topic highly unfavorable to Trump) while saying “no collusion” over and over.

More if and when I read this thing. Don’t hold your breath.

18 Comments »

  1. Leave comments here so I have something sensible to read.

    Comment by Patterico — 4/18/2019 @ 7:59 pm

  2. So far I haven’t heard one good analysis of what is in this report. Most pundits are either claiming Barr is a liar, or Mueller was inconsistent in his conclusions between Vols. 1 and 2. So, I guess I’m going to have to spend time this summer reading and learning legalese, because I don’t think there will be a single honest commentator that will properly summarize this mess.

    Comment by Sean — 4/19/2019 @ 7:23 am

  3. Page 117:

    The President also asked McGahn in the meeting why he had told Special Counsel’s Office investigators that the President had told him to have the Special Counsel removed. McGahn responded that he had to and these conversations with the President were not protected by attorney-client privilege. The President then asked, “What about these notes? Why do you take notes? Lawyers don’t take notes. I never had a lawyer who took notes.” McGahn responded that he keeps notes because he is a “real lawyer” and explained that notes create a record and are not a bad thing.

    I hope McGahn writes a book or an article someday.

    Comment by DRJ — 4/19/2019 @ 9:39 am

  4. At thus point, my only question is whether Trump lies compulsively because he is a narcissist, or is his lying pathological?

    Comment by DRJ — 4/19/2019 @ 9:45 am

  5. I have not read more than a few snippets of the report, because I simply don’t have time this week. Therefor, I don’t have an opinion on most of it.

    On the Flynn matter, that one has always bothered me. *IF* it’s true as reported that Flynn was interviewed by the FBI without being made aware he was, then I think Trump should have gone a lot further than expressing “hope” they’d go easy on him. Likewise, *IF*, as reported, the two interviewing FBI agents themselves didn’t think Flynn was lying, there was no grounds to prosecute.

    If, as reported, Flynn lied to Pence, that’s certainly grounds for firing. It is not legitimate grounds for prosecution. Likewise, with the FBI, two agents popping in for a chat ostensibly about something else and being lied to is not legitimate grounds for prosecution (let’s not forget that Flynn would be committing a crime by disclosing classified matters to them).

    BTW, I do not like Flynn and think he should have been fired.

    Comment by Arizona CJ — 4/19/2019 @ 11:12 am

  6. Flynn’s meeting with the FBI was voluntary but that doesn’t make it OK to lie repeatedly, as Flynn did, nor was it wise to try to spin the interview as entrapment. If Flynn couldn’t talk to the FBI without lying, the better thing for him to do was not talk to them at all.

    Comment by DRJ — 4/19/2019 @ 1:51 pm

  7. @ DRJ,

    Thanks for the link. I had not read that.

    Having read through it, I’d be inclined to give Flynn a pass on the “don’t overreact” bit, as it’s not specific.

    On the Israel part, it looks like a clear cut lie, unless Flynn was talking to a lot of ambassadors at that time and misremembered.

    But regarding motive for lying; Flynn certainly knew that the calls are recorded and that FBI, as the lead counter-intel agency, has access, so why on earth would he lie? My only wild guess would be he was trying to cover up his lie to Pence (and yeah, I couldn’t blame the FBI for prosecuting him if that’s the case.). However, I have no clue exactly what lie Flynn told Pence, so I can’t even form an opinion on this one.

    However, the interviewing agents also knew the calls were recorded, so, what was their motive in asking at least many of these questions? If it was purely to trap Flynn in a process crime, that’s not okay.

    So, where do I stand now on the Flynn case? Confused. :)

    However, on the issue in general, we know, or certainly have reason to believe, that Comey lied to Trump. We also know, or have reason to believe, that Flynn lied to Pence. Should Comey and Flynn be prosecuted for those lies?

    Comment by Arizona CJ — 4/19/2019 @ 4:20 pm

  8. I’m not sure what your concerns are. Flynn has plead guilty to the charges. He admitted guilt on all charges — it was not a “fingers crossed” plea — and his sentencing has been delayed so he can cooperate to avoid jail.

    Comment by DRJ — 4/20/2019 @ 7:42 am

  9. It is not illegal to lie to Pence, although one reason Flynn was investigated was because he lied to Pence and that caused Pence to make a false statement regarding our foreign relations.

    I am not sure what Comey-Trump incident you refer to but lying to Trump isn’t illegal, just as Trump’s lies aren’t illegal unless he is being questioned by the FIB or Special Counsel. That is why Trump refused to talk to Mueller and only provided written answers, which are attached as Exhibit D to Mueller’s Report. It is interesting how often Trump says “I don’t know/don’t recall/don’t remember” in his answers.

    Comment by DRJ — 4/20/2019 @ 7:50 am

  10. It seems to me that Trump cares about Trump and that motivates most of what he doe. However, he also has two guiding principles: Get Even, and Might Makes Right.

    Comment by DRJ — 4/20/2019 @ 10:20 am

  11. However, on the issue in general, we know, or certainly have reason to believe, that Comey lied to Trump. We also know, or have reason to believe, that Flynn lied to Pence. Should Comey and Flynn be prosecuted for those lies?

    What alleged Comey lie are you referring to, specifically?

    Comment by Patterico — 4/20/2019 @ 12:25 pm

  12. @ Patterico;

    I may be off base with that. I was thinking of Comey telling Trump that Trump was not under investigation. However, from what I can find, Trump might not have been at that time. If he wasn’t, it was truthful. What I should have said was; if Comey lied to Trump, should he be prosecuted for doing so?

    @DRJ,

    18 U.S.C. § 1001, which is why it’s illegal to lie to the FBI, does not specify the FBI, nor law enforcement agents. It makes it illegal to lie or mislead in any matter under the jurisdiction of the legislative, executive, or judicial branches of the federal government. Trump and Pence are federal officials, and Flynn’s lie to Pence was (I assume) about a matter under federal jurisdiction (such as foreign relations).

    I’m not saying it should be a crime to lie to Pence (I’m of the opinion that it should not be, same as IMHO lying to the FBI unless covering up an actual crime). I’m only saying that the statute seems (IMHO) to apply to all lies to all Federal officials, directly or indirectly.

    As for Flynn, I’m not saying he’s not guilty of lying to the FBI (he plead guilty, as you say). I do however have legitimate questions regarding both his motives, and those of the FBI.

    https://www.law.cornell.edu/uscode/text/18/1001

    Comment by Arizona CJ — 4/20/2019 @ 4:18 pm

  13. I am not certain I think Section 1001 applies to statements made to federal government agents.

    Comment by DRJ — 4/20/2019 @ 5:39 pm

  14. Here is the DOJ analysis of 18 USC 1001, and specifically that it applies to federal investigations and statements made/conveyed to investigators.

    Comment by DRJ — 4/20/2019 @ 6:47 pm

  15. @ DRJ,

    I’m going to quibble with your interpretation of the DOJ’s interpretation.

    The interpretation you linked (thank you, BTW) Does not limit the applicability of 18 U.S.C. § 1001 to
    investigators of the DOJ or FBI. I see nothing there that’s exclusitory, and I do see a list (4th paragraph) of case cites that is inclusive of other kinds of federal officials, such as IRS, US Army,etc. They are listed as employees, not investigators.

    Basically, I see nothing in the opinion, or more importantly the statute, that precludes a lie to Trump, Pence, or any other executive branch entity on matters pertinent to its jurisdiction, as chargeable under 18 U.S.C. § 1001

    I do not think they should be, but I do think they could be. Basically, I think 18 U.S.C. § 1001
    is obscenely broad.

    Comment by Arizona CJ — 4/21/2019 @ 12:23 pm

  16. I think that is a very interesting point. You may be right that a court could hold Section 1001 applies to lies told to a President, but I am not convinced the DO does. I think the DOJ views it as a tool “to prohibit deceptive practices aimed at frustrating or impeding the legitimate functions of government departments or agencies.”

    Clearly the President is the head of the executive branch, but he is not a department or agency and applying 1001 to every statement made to him would chill advice given to him. I think a court would look at his capacity when he asked for information.

    The one example I can think of where 1001 might apply was with Bush 43 during the Place affair. If Bush, as the chief US law enforcement officer, had called in every Cabinet member and staff member and asked what they knew about that incident, I think anyone who lied could be prosecuted.

    Interesting question, CJ.

    Comment by DRJ — 4/21/2019 @ 2:53 pm

  17. Plame affair, not Place.

    Comment by DRJ — 4/21/2019 @ 2:54 pm

  18. I agree in the main that the DOJ sees it as outlined, but I do note that they say that the pre-1996 version (the 1996 change broadened the statute) *may* be limited to the executive branch.

    Either way, post 1996, the executive branch is covered – not just investigative agents. And that, IMHO, would be inclusive of the Chief Executive.

    I also think that lying to the president or vice president on areas of their jurisdiction qualifies.

    Interestingly, the post 1996 version applies to courts as well. I think we’ll see this in practice soon, if indeed the FBI lied or misrepresented to the FISA court.

    I think you’re right regarding Bush and the Plame affair. However, if Bush could do that, he could likewise apply it to anyone he asked any question of, as long as the issue was within Federal jurisdiction.

    BTW, it was the Plame affair that turned me against 18 U.S.C. § 1001. It was determined by the special council early on that the actual leak was from Richard Armatage to Robert Novak. This was judged to be not prosecutable for reasons they never explained. However, though knowing that Libby was not the leak, they kept pursuing Libby, eventually getting him on obstruction and
    18 U.S.C. § 1001, on highly dubious grounds.
    Incidentally, the deputy AG who appointed the special council and oversaw the case? James Comey.

    https://www.washingtonpost.com/blogs/right-turn/wp/2015/04/09/time-to-reverse-the-scooter-libby-conviction/

    Comment by Arizona CJ — 4/21/2019 @ 6:10 pm

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