A contrarian view of the Mueller Report

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Ebola coordinator Ron Klain listens as President Barack Obama speaks to the media about the government’s Ebola response in the Oval Office of the White House, Wednesday, Oct. 22, 2014, in Washington. (AP Photo/Jacquelyn Martin)

Ronald Klain is one of the brightest (and funniest) lawyers in the business. He served as a senior White House aide to Presidents Barack Obama and Bill Clinton, chief of staff to Vice Presidents Joe Biden and Al Gore, chief of staff to the attorney general, associate counsel to the president, and chief counsel to the Senate Judiciary Committee, among other assignments. He is an adjunct professor at Harvard Law School and Georgetown University.

Ronald Klain offers a contrarian assessment of the redacted Mueller Report. In his view, the “much-anticipated report comes up short in many respects, and Democrats made a mistake to put so much confidence in it as the touchstone of accountability for President Trump and his campaign.” Robert Mueller failed to do his duty:

Congress’s choice to “wait for Mueller” before pressing an investigation of Trump wrongly elevated a report that was always — by design — going to use a narrow aperture and a very specific [criminal legal] standard to examine the events of 2016 and their aftermath.

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The oft-repeated wisdom that Mueller “knew things we did not know” turned out to be vastly overestimated. Many of Trump’s worst acts — his encouragement of Russia to illegally spy on his opponent; his repeated use of materials stolen by foreign intelligence assets as fodder for the campaign; the firings, inducements and intimidations to shut down investigations — were all known; the anticipation that Mueller still had “a smoking gun” in his pocket unfortunately normalized the ghastly things that were already public. It turns out — thanks to a combination of ongoing indictments and brilliant journalism — we had Mueller’s key findings months ago; their public release was more reprise than reveal.

But if expectations were too high for Mueller’s report, the inevitable disappointment was exacerbated by how Mueller fell short in what he delivered.

This starts with his failure to get Trump to answer questions in person. There was ample precedent for insisting on such an interview: Bill Clinton testified before a grand jury in the Whitewater investigation; George W. Bush submitted to an interview with special counsel Patrick Fitzgerald about the Valerie Plame matter. In this case, with uncertainty about what the president knew about his son Donald Trump Jr.’s coordination with foreign hackers and meddlers; with the president at the center of lies about dealings and meetings with Russians; and with doubts about why the president did so many things to try to derail Mueller’s probe — commonly seen as indications of guilt — why didn’t Mueller press harder to question the president directly?

The New York Times adds, ‘I Do Not Remember’: Trump Gave a Familiar Reply to the Special Counsel’s Queries:

President Trump has boasted at various points that he has “one of the great memories of all time” or even “the world’s greatest memory.”

But the world’s greatest memory failed him repeatedly when prosecutors asked him those classic questions from decades of presidential scandals — what did he know and when did he know it?

Mr. Trump refused for more than a year to be interviewed by the special counsel, Robert S. Mueller III, and in the end agreed to respond to questions only in writing. Even then, with the help of his lawyers, the president found it difficult to summon details from his presidential campaign in 2016 that might shed light on what happened.

More than 30 times, he told the prosecutors that he had no memory of what they were asking about, employing several formulations to make the same point.

* * *

Mr. Mueller’s prosecutors considered his memory lapses unsatisfying and pressed Mr. Trump’s lawyer again for an in-person interview, to no avail.

“The written responses, we informed counsel, ‘demonstrate the inadequacy of the written format, as we have had no opportunity to ask follow-up questions that would ensure complete answers and potentially refresh your client’s recollection or clarify the extent or nature of his lack of recollection,’” Mr. Mueller’s report said.

I do not know of any trial attorney worth his salt who would not respond to such purposefully deceptive answers to written interrogatories immediately with a subpoena for a witness deposition. Especially when there is abundant evidence (as Mueller’s Report asserts) to challenge each of those purposefully deceptive answers to written interrogatories. This is the bogus “perjury trap” that Trump’s shyster lawyers argued was the reason for his failure to agree to an interview, after publicly stating on numerous occasions that he would. Mueller effectively allowed Trump to get away with this.

Some have argued that Mueller did not question Trump because it is common for prosecutors not to question targets of their probes; others suggest that it was because Mueller believed that Trump would assert his Fifth Amendment rights. But Mueller’s report does not offer either of these rationales — and if the sitting president’s intent was to take the Fifth, that should have been put on the record.

Instead, Mueller only offers the wan explanation that — by the time he formally asked for an interview with Trump (Dec. 3, 2018) — he already had “substantial evidence” about the events being investigated, and therefore, “the costs of potentially lengthy constitutional litigation, with resulting delay in finishing our investigation, [outweighed] . . . the anticipated benefits for our investigation and report.”

This reflects two mistakes of historic proportion. First, by delaying the question of Trump’s interview until month 19 of his tenure, Mueller allowed Trump to run out the clock — a grave tactical error. And second, in an investigation of this public import, getting “substantial evidence” but not the word of the president himself fails to fulfill the special responsibility of a special counsel. In a run-of-the-mill criminal case, a prosecutor’s decision to bypass questioning a difficult figure might make sense; when we are seeking to learn whether a presidential candidate worked with a hostile foreign power to win an election, the public deserves to have that candidate answer questions under oath.

Finally, some of Mueller’s other decisions should be publicly debated. His determination not to bring campaign finance charges against Trump Jr. for soliciting foreign assistance to damage Hillary Clinton’s campaign has been blasted by one of the foremost election law experts, as it turned on a curious view that Mueller could not prove the value of the assistance Russians dangled in front of Trump Jr., and that a prosecution for solicitation of foreign election assistance raised “First Amendment concerns.”

See Richard Hasen, All the Mistakes Mueller Made in Declining to Prosecute Donald Trump Jr., for a fuller explanation:

Robert Mueller let Donald Trump Jr. off the hook too easily for potential campaign finance violations that arose from the June 2016 meeting in Trump Tower with Russian operatives. Mueller’s questionable exercise of prosecutorial discretion is bad news for how campaigns and foreign entities might conduct themselves in the run-up to the 2020 elections.

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Federal law makes it a potential crime for any person to “solicit” (that is, expressly or impliedly ask for) the contribution of “anything of value” from a foreign citizen. The offer of such opposition research qualifies as something of value for these purposes, a point the special counsel acknowledged based on prior cases and Federal Election Commission rulings.

We now know the special counsel considered whether Trump Jr. and Manafort committed such a crime before ultimately declining to prosecute. We also now know that Mueller made some key errors during that decision-making process.

To begin with, the special counsel’s report says that Trump Jr. “declined to be voluntarily interviewed” about the meeting. The special counsel should have called subpoenaed Trump Jr. before the grand jury, as he did with other witnesses.

[Trump] Jr.’s grand jury testimony would have been especially important given one of the key reasons Mueller declined to prosecute the president’s son for this crime: lack of willfulness. In order for a campaign finance violation to constitute a criminal offense (rather than a civil problem handled with fines by the Federal Election Commission), one must act willfully. Willfulness is a question of mental state. Getting Trump Jr. before a grand jury would have been a great way to get at his mental state, because he would have been testifying under the risk of perjury. This was a huge missed opportunity for Mueller.

Mueller made some other questionable choices. While Trump Jr. could have been charged with illegally coordinating with the Russians to make an illegal foreign expenditure, Mueller describes the law defining coordination as too uncertain. In fact, as Common Cause’s Paul S. Ryan explains in this thread, there is both a federal statute and case law defining the term, and Trump Jr.’s conduct seems to fall within it.

Mueller also made the ridiculous argument that it is possible Russian “dirt” on Clinton could have been worth less than $25,000, the threshold to punish Trump Jr.’s cooperation as a felony. Really?

Further, Mueller said that a Trump Jr. prosecution would have raised “First Amendment questions” and “could have implications beyond the foreign-source ban.” To begin with, a First Amendment defense of Trump Jr. is bogus. As I explained in Slate, the main First Amendment argument is that a ban on soliciting foreign political contributions is overly broad and could apply any time a foreign individual gives any information to a political campaign.

[As] I wrote, “To let someone off the hook who solicited ‘very high level and sensitive information’ from a hostile government because there may be cases in which information from a foreign source does not raise the same danger to our national security and right of self-government is to turn the First Amendment into a tool to kill American democracy.”

[Note: This is exactly what the right-wing’s abuse of First Amendment jurisprudence to eliminate all campaign finance laws is actually about.]

Further, even if Mueller believed there were First Amendment questions in play, he should have left that for the courts to decide given the strong national security interests at stake here. Mueller offered no First Amendment argument in his report. He merely flagged the issue and never provided any analysis to back up the First Amendment claim.

I’m afraid that this flagging of the issue does more harm than good. Mueller has now given campaigns credible reason to believe they can accept help from foreign governments because they may have a constitutional right to do so. That’s even more troubling for what it says about 2020 than what it says about 2016.

Back to Ron Klain:

Most important, Mueller’s decision not to also bring charges against Trump Jr. — a private citizen, not protected by any Justice Department policy against prosecution — for conspiring with WikiLeaks (either as a violation of campaign finance laws or other statutes) remains a mystery given the extensive evidence of direct interactions between Trump Jr. and the WikiLeaks team. It is this Mueller decision — which enabled Trump’s “no collusion” boast — that merits the greatest scrutiny in the days ahead.

I’m sure that you are all familiar with the age old legal principle that “ignorance of the law excuses no one,” Ignorantia juris non excusat. Yet in this case, Robert Mueller asserts this as his reason for not prosecuting Donald Trump, Jr. , Jared Kushner and Paul Manafort for campaign finance law violations. WTF? Wise guys: Don Jr and Jared Kushner ‘DID break the law by meeting Kremlin lawyer for dirt on Hillary, but did not know enough to realize their conduct was unlawful,’ states Mueller Report:

Ignorance is bliss – and a great reasonable doubt defense.

That seems to be the case for Donald Trump Jr, Jared Kushner and Paul Manafort, who managed to avoid being charged for violating campaign finance law by not being smart enough to know that they were engaging in unlawful activity.

In summarizing his findings from the infamous June 2016 meeting between members of the Trump campaign and Russian Natalia Veselnitskaya, Robert Mueller wrote that unlawful activity did take place, but the men who broke them were unaware of their illegal actions.

‘On the facts here, the government would unlikely be able to prove beyond a reasonable doubt that the June 9 meeting participants had general knowledge that their conduct was unlawful,’ reads the report.

‘The investigation has not developed evidence that the participants in the meeting were familiar with the foreign-contribution ban or the application of federal law to the relevant factual context.’

Paul Manafort has been running campaigns since the 1970s. It defies credulity to say that he was unfamiliar with the foreign-contribution ban or the application of federal law. Especially since he was charged and convicted for lying to investigators.

Ron Klain concludes: “In sum, Mueller has served our country well for decades and deserves respect. But he might not have met the full measure of his duty in this latest assignment. If Congress allows his report to be the last word about accountability for the president and his people, it will fail its duty as well.”