BY BARBARA MCQUADE AND JOYCE WHITE VANCE [JUNE 24, 2019]
When we joined other legal experts earlier this month to testify before the House Judiciary Committee regarding lessons from special counsel Robert Mueller’s investigation, it became apparent from the questioning that a number of misconceptions continue to exist regarding Mueller’s findings. The narrative was shaped by Attorney General William Barr, who issued his description of Mueller’s conclusions three weeks before the public saw the full 448-page report. In a letter to Barr, Mueller complained that Barr’s summary “did not fully capture the context, nature and substance” of his team’s work and conclusions, and created “public confusion.” Here is our effort to dispel some of those myths.
Myth: Mueller found “no collusion.”
Response: Mueller spent almost 200 pages describing “numerous links between the Russian government and the Trump Campaign.” He found that “a Russian entity carried out a social media campaign that favored presidential candidate Donald J. Trump and disparaged presidential candidate Hillary Clinton.” He also found that “a Russian intelligence service conducted computer-intrusion operations” against the Clinton campaign and then released stolen documents.
While Mueller was unable to establish a conspiracy between members of the Trump campaign and the Russians involved in this activity, he made it clear that “[a] statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.” In fact, Mueller also wrote that 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.”
To find conspiracy, a prosecutor must establish beyond a reasonable doubt the elements of the crime: an agreement between at least two people, to commit a criminal offense and an overt act in furtherance of that agreement. One of the underlying criminal offenses that Mueller reviewed for conspiracy was campaign-finance violations. Mueller found that Trump campaign members Donald Trump Jr., Paul Manafort and Jared Kushner met with Russian nationals in Trump Tower in New York June 2016 for the purpose of receiving disparaging information about Clinton as part of “Russia and its government’s support for Mr. Trump,” according to an email message arranging the meeting. This meeting did not amount to a criminal offense, in part, because Mueller was unable to establish “willfulness,” that is, that the participants knew that their conduct was illegal. Mueller was also unable to conclude that the information was a “thing of value” that exceeded $25,000, the requirement for campaign finance to be a felony, as opposed to a civil violation of law. But the fact that the conduct did not technically amount to conspiracy does not mean that it was acceptable. Trump campaign members welcomed foreign influence into our election and then compromised themselves with the Russian government by covering it up.
Mueller found other contacts with Russia, such as the sharing of polling data about Midwestern states where Trump later won upset victories, conversations with the Russian ambassador to influence Russia’s response to sanctions imposed by the U.S. government in response to election interference, and communications with Wikileaks after it had received emails stolen by Russia. While none of these acts amounted to the crime of conspiracy, all could be described as “collusion.”
Myth: Mueller found no obstruction.
Response: Mueller found at least four acts by Trump in which all elements of the obstruction statute were satisfied – attempting to fire Mueller, directing White House counsel Don McGahn to lie and create a false document about efforts to fire Mueller, attempting to limit the investigation to future elections and attempting to prevent Manafort from cooperating with the government. As Mueller stated, “while this report does not conclude that the President committed a crime, it also does not exonerate him.” Mueller declined to make a “traditional prosecution decision” about obstruction of justice. Because he was bound by the Department of Justice policy that a sitting president cannot be charged with a crime, he did not even attempt to reach a legal conclusion about the facts. Instead, he undertook to “preserve the evidence when memories were fresh and documentary materials were available,” because a president can be charged after he leaves office. In fact, out of an abundance of fairness, Mueller thought that it would be improper to even accuse Trump of committing a crime so as not to “preempt constitutional processes for addressing presidential misconduct,” meaning impeachment.
Myth: Case closed. No do-overs.
Response: Mueller investigated the case under criminal statutes, which is a narrow and specific window of inquiry. Congress has a different and broader responsibility to determine whether the president committed high crimes and misdemeanors for which impeachment is appropriate. Congress is not bound by the high standard of proof of guilt beyond a reasonable doubt that Mueller used for his criminal inquiry. Our system reserves that burden of proof for cases where someone’s liberty is at stake and they may be incarcerated as a result of proceedings. That is not the case with impeachment.
Myth: Focus on obstruction detracts from focus on Russia.
Response: We agree that it is critical to defend our elections against future instances of the Russian attack Mueller details in his report. But focusing on obstruction is focusing on Russia. Mueller concluded that Russia interfered in the 2016 election in “sweeping and systematic fashion.” The report documents Trump’s efforts to end or curtail the investigation, his refusal to be interviewed and written answers that Mueller found “inadequate.” The report also notes that members of the campaign lied, refused to answer questions, deleted communications and used encrypted applications. Obstruction is a crime precisely because those who engage in it seek to keep investigators from arriving at the truth. As Mueller wrote in Volume I, pertaining to conspiracy with Russia, “given these identified gaps, the Office cannot rule out the possibility that the unavailable information would shed additional light on (or cast in a new light) the events described in the report.” Efforts to obstruct the investigation may have shielded not only the conduct of members of Trump’s campaign, but also active measures by Russia to interfere with our election.
Myth: If there was no underlying crime, then there can be no obstruction of justice.
Response: Obstruction of justice includes not just completed acts but also attempts. That rule makes sense because otherwise even the most blatant obstructers could avoid accountability by successfully concealing their crimes from investigators. Furthermore, attempts are illegal because the wrong that the law seeks to prevent is the effort to prevent investigators from learning the truth. Here, of course, crimes were charged against 37 individuals and entities, including two dozen Russian nationals.
Although Mueller was unable to establish each and every element of conspiracy beyond a reasonable doubt, he found contacts with Russia that may have created concern for Trump that they would amount to a crime or create embarrassment for himself, his family and his campaign. He also may have been motivated by a desire to conceal his payments to silence Stormy Daniels regarding allegations of marital infidelity on the eve of the election after his disparaging remarks about women on the Access Hollywood tape had become public, activity for which he is described as “Individual-1,” an unindicted co-conspirator, in a federal criminal case filed in the Southern District of New York. In addition, Trump may have been motivated by a desire to avoid the appearance that his election was illegitimate because it was achieved with assistance from a foreign adversary. He could have been concerned that the investigation would reveal personal financial matters, which he has always considered sensitive. Regardless of his motive, Trump’s efforts to interfere with Mueller’s investigation legally amount to obstruction of justice, even under the narrow definition and high standard of proof Mueller used.
Myth: Because Trump was unsuccessful in ending the investigation, there can be no obstruction of justice.
Response: The report finds substantial evidence that Trump asked McGahn to fire Mueller. McGahn said he was prepared to resign rather than comply. Because the law punishes attempts, Trump’s effort to end the investigation constitutes obstruction of justice, even though McGahn did not follow through on the order. In addition, Mueller found that all elements of obstruction were satisfied with regard to Trump’s efforts to limit the investigation to future elections: Trump directed then-Attorney General Jeff Sessions to “unrecuse” himself from the investigation and to publicly announce that the investigation would focus on only future elections — that is, even if Mueller were fired and then replaced, the new special counsel would be required to ignore facts relating to the 2016 election. If successful, this effort would have prevented us from learning the truth about Russia’s efforts to attack the 2016 election. By looking out for his own interests, Trump ignored the interests of our country.
Myth: A president cannot obstruct justice as a matter of law when he is exercising executive power.
Response: Mueller found that this theory, advanced by Barr in an unsolicited 19-page memo before he became attorney general, was inconsistent with the law, the Constitution and the foundational notion of separation of powers. The Constitution requires not just that the president execute the law, but that he do so “faithfully.” Under Barr’s theory, a president would be above the law and could engage in behavior such as ordering a U.S. Attorney to investigate a political rival even if no criminal behavior had occurred or to stop investigating a friend or family member. Mueller was able to draw upon the expertise of team member Michael Dreeban, DOJ’s top career criminal appellate lawyer who has served in Republican and Democratic administrations over his three decades at the Department, and has argued more than 100 cases before the Supreme Court. Barr has never been a courtroom prosecutor. As Mueller and his team stated, subjecting the president to obstruction law is consistent with the fundamental principle of our government that “no person in this country is so high that he is above the law.” Even under Barr’s theory, a president commits illegal obstruction when he engages in conduct that is outside his executive power, such as directing a witness to create a false document, as Mueller found that Trump did with McGahn.
Myth: Mueller wanted Barr to make the call on whether Trump committed obstruction.
Response: Mueller didn’t invite Barr to make a decision about prosecuting obstruction. He left it to prosecutors who could decide whether to pursue charges after Trump left office and to Congress which has impeachment power. And Mueller’s treatment of conspiracy shows that he knew how to conclude that a crime has not been established. By declining to reach the same conclusion with regard to obstruction, he indicated that he clearly found the evidence of that crime more troubling. Barr’s peremptory dismissal of obstruction happened with no explanation of how he was able to resolve the evidence of obstruction when Mueller could not. More than 1,000 former federal prosecutors, including us, have signed a letter stating that the evidence establishes multiple counts of obstruction of justice. And Mueller expressed concern to Barr that the attorney general’s intervention threatened to undermine “the central purpose” for appointing a special counsel: “to assure full public confidence in the outcome of the investigations.”
Myth: The investigation began with the Steele dossier.
Response: According the Mueller report, the investigation began in July 2016 after Wikileaks had released materials stolen from the computers of the Democratic National Committee. The FBI received information from a foreign government that Trump campaign adviser George Papadopoulos had told one of its representatives 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.” Mueller’s report states, “That information 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.” Mueller makes no statement to indicate that the investigation was predicated on the Steele dossier, a series of reports that were compiled by former British intelligence officer Christopher Steele, who was hired by a research company that was working for a law firm paid first by a conservative website and later by the Clinton campaign.
Myth: Spying occurred against the Trump campaign.
Response: In October 2016, the Foreign Intelligence Surveillance Court approved electronic surveillance of Carter Page, a Trump adviser. Authorization for surveillance under FISA requires a judge to find probable cause to believe that Page was acting as an agent of a foreign power. The Steele dossier was part of a 66-page application submitted by DOJ and the FBI describing other facts in support of probable cause. The fact that the Steele dossier was funded by the Clinton campaign was disclosed in the application to the court in a footnote, which is consistent with the way potential bias is typically disclosed to a judge so that he may assess the credibility of the source. Renewals of the FISA application were approved by Deputy Attorney General Rod Rosenstein, who was appointed by President Trump. While court-authorized surveillance was used in this counterintelligence investigation into Russia, there is nothing to indicate that this technique was improper.
Myth: The special counsel’s name is Robert Mule-er.
Response: At the hearing, at least two members of Congress referred to the special counsel as Mr. “Mule-er.” Whether you agree or disagree with his conclusions, Mueller is a dedicated public servant who took on a thankless task and a huge pay cut to investigate an attack on our national security, and he deserves the respect of having his name pronounced correctly. It’s pronounced “Muller.”
McQuade is a professor at the University of Michigan Law School, a former U.S. Attorney for the Eastern District of Michigan and an NBC News and MSNBC legal analyst.
Vance is distinguished professor of the practice of law at the University of Alabama, a former U.S. Attorney for the Northern District of Alabama and an NBC News and MSNBC legal analyst.