Patterico's Pontifications


The Mueller Report: Preliminary Reaction to the Reporting

Filed under: General — 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.

[Cross-posted at The Jury Talks Back.]

Mueller Report Appetizer

Filed under: General — Dana @ 9:42 am

[guest post by Dana]

Our host will be posting his thoughts on the Mueller report this evening. In the meantime, here’s something for you to chew on. Or chew up:


(Cross-posted at The Jury Talks Back.)


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