This post is the second part of a three part series on Trump and the Mueller report. The first post was an abridged version of the Mueller report (called “The Muller Report Distilled” or MRD for short) that took less than 30 minutes to read. It was not a summary, but instead I took the most relevant parts of the actual report and strung them together into a much shortened version.
This post is my best effort to represent the other side of the argument. I did my best to find and collect the best information I can that wasn’t included in the Mueller report but creates context that most people would probably find relevant.
The format will be roughly the same. I will break this post up into numbers subsections. Even just reading the subsection titles will give you a pretty good idea of what information exists that Mueller didn’t bring out. Much of this comes from Bob Woodward’s book, Fear, which is mostly considered an anti-Trump source, but Woodward is very fair in his investigations so when he has pro-Trump info it’s quite trustworthy.
However, unlike the MRD, I can’t quote the whole relevant sections and was forced to mostly summarize them. I tried to grab the most important quotes that really help you understand the full original context.
Again, I will not be sharing my own opinions yet, just presenting the raw evidence. The final post in this series will be my own analysis referencing the first two posts.
- FBI Knew Why Russia Preferred Trump: Russia Thought Clinton Would Win
On January 6, 2017 — before President Elect Trump took office — the FBI briefed Trump in Trump Tower. James Clapper from the FBI summarized the FBI’s key judgments concerning why Russia/Putin had tried to influence the election in Trump’s favor:
Russia has had a long-standing desire “to undermine the US-led liberal democratic order” but in the 2016 presidential election there was “a significant escalation in directness, level of activity and scope of effort.”
Putin “ordered an influence campaign in 2016 aimed at the US presidential election…to undermine public faith in the US democratic process, denigrate Secretary Clinton and harm her electability and potential presidency. We further assess Putin and the Russian Government developed a clear preference for President-elect Trump.”
“When it appeared to Moscow that Secretary Clinton was likely to win the election, the Russian influence campaign began to focus more on undermining her future presidency [by supporting Trump.]” (Woodward, p. 67)
Clapper went on to say that Putin’s preference for Trump “was aimed very much at ‘discrediting’ and ‘undermining’ Clinton. There was no suggestion that Trump or his associates had colluded or coordinated with the Russian effort.” (Woodward, p. 67)
2. The FBI Several Mishandled the Steetle Dossier with Trump and Created a Wedge Between Trump and the FBI
In the same meeting, the FBI famously told Trump about the Steele Dossier which included the rumors of evidence of Trump with Russian prostitutes (a rumor that has largely been discredited.) Bob Woodward appeared on Fox News on January 15 stating the following:
“I’ve lived in this world for 45 years whether you get things and people make allegations. That is a garbage document. It never should have been presented as part of an intelligence briefing. Trump’s right to be upset about that.”…I said the normal route for such information , as in past administrations, was passing it to the incoming White House counsel. Let the new president’s lawyers handle the hot potato. … The episode played a big role in launching Trump’s war with the intelligence world, especially the FBI and Comey. (Woodward, p. 71)
3. Flynn Probably Wasn’t Guilty of Breaking the Logan Act
Before Trump took office, news stories broke that Michael Flynn (Trump’s designated National Security Advisor) may have broken the Logan Act which makes it illegal for a citizens of the US to negotiate with countries that are in dispute with the US. (See #2 in MRD)Upon hearing of US sanctions against Russia, it would be Flynn’s new job (when Trump took office) to negotiate situations like this. So he talked to the Russian ambassador to convince Russia to not escalate sanctions. Because Flynn was not yet part of the government, this arguably violated the Logan Act. (See MRD #1–9) This was the original incident that eventually led to the Mueller team investigating Trump when Trump asked FBI director, James Comey, to go easy on Flynn. (See MRD #7)
Woodward investigated the situation and his conclusion was that Flynn probably wasn’t guilty of lying to obstruct justice because when the FBI interviewed him “The FBI agents had come to talk to him about matters other than Russia and he had not believed it was a formal interview.” (Woodward, p. 82) However, Flynn ended up pleading guilty to this very charge. Why? Woodward suggests it was actually because he was under investigation for a range of possible offenses at the time, “including his failure to report income from Turkey, report overseas contacts and to register as a lobbyist prior to joining the Trump administration.” (Woodward, p. 82)
Flynn’s legal bills were astronomical and “A one-count guilty please for lying seemed the only way out.” As part of his confession, he was allowed to deny any treason (i.e. collusion with Russia.) (Woodard, p. 82)
4. The FBI Told Trump Administration that the Feb, 14 NYT Article Was Incorrect
On February 14th, 2017, the New York Times ran an article entitled “Trump Campaign Aides Had Repeated Contacts With Russian Intelligence.” That article begins with:
Phone records and intercepted calls show that members of Donald J. Trump’s 2016 presidential campaign and other Trump associates had repeated contacts with senior Russian intelligence officials in the year before the election, according to four current and former American officials.
This story was so inaccurate that Andrew McCabe from the FBI of his own accord went to talk to Reince Priebus, Trump’s then Chief of Staff. He said:
You know that this story in The New York Times? [quoting the article above] It’s total bull****,” McCabe said. “It’s not true, and we want you to now that. It’s grossly overstated. (Woodward, p. 85)
Priebus knew Trump was ‘getting killed’ by the story in the media and here was the FBI admitting it was false. So he asked McCabe if the FBI could help get the truth out about the story.
“Call me in a couple of hours,” McCabe said. “I will ask around and I’ll let you know. I’ll see what I can do.”
Priebus practically ran to report to Trump the good news that the FBI would soon be shooting down the Times story.
Two hours passed and no call from McCabe. Priebus called him.
“I’m sorry, I can’t,” McCabe said. “There’s nothing I can do about it. I tried, but if we start issuing comments on individual stories, we’ll be doing statements every three day.” …If the FBU tried to debunk certain stories, a failure to comment could be seen as a confirmation.
“Andrew, you’re the one that came to my office to tell me this is a BS story, and now you’re telling me there’s nothing you can do?”
McCabe said that was his position.
“This is insanity,” Priebus said. “What am I supposed to do? Just suffer, bleed out?”
“Give me a couple more hours.”
Nothing happened. No call from the FBI. Priebus tried to explain to Trump, who was waiting for a recanting. It was another reason for Trump to distrust and hate the FBI, a pernicious tease that left them dangling. (Woodward, p. 85)
5. Rosenstein Recommended Firing Comey
Trump grew increasingly angry with James Comey, the FBI director, because he kept refusing to publicly state that Trump himself was not under investigation (See MRD #14, 16, 18) as part of the Russian investigation. Comey would tell Trump privately he wasn’t (see #1 above) but refused to do this in public due to orders from the (previously)acting Attorney General for the Russian investigation. (See MRD #13) So he dictated a letter listing his reasons to Fire Comey.
Rosenstein apparently agreed with Trump that Comey should be fired, though his reason was different, namely Comey’s mishandling of the Clinton email affair.
Rosenstein told Trump that he thought Comey should be fired. He had no problem writing a memo outlining his reasoning. (Woodward, p. 163)
6. Trump Was Warned to Not Fire Comey or the FBI Would Retaliate
Steve Bannon (Trump’s Strategist at the time) disagreed with Trump’s decision to fire Comey, explaining:
“Seventy-five percent of the agents do hate Comey. No doubt. The moment you fire him he’s J… Edgar Hoover. The day you fire him, he’s the greatest martyr in American history. A weapon to come and get you. They’re going to name a special… counsel. You can fire Comey. You can’t fire the FBI. The minute you fire him, the FBI as an institution, they have to destroy you and they will destroy you.”…
Bannon thought Trump did not understand the power of the permanent institutions… He also did not understand the seeping powers of a special counsel who could be appointed to investigate everything a president touched (Woodward, p. 162)
7. Trump’s Reasons He Didn’t Want Mueller to be the Investigator
On May 25, 2017, when hiring Dowd as his lawyer, Trump related to Dowd:
…how he learned on May 17 [days before] that Mueller had been appointed special counsel by Rod Rosenstein…Trump said, he has interviewed Mueller just the day before to come back as FBI director and he had turned him down. Now Mueller was suddenly in charge. (Woodward, p. 168–169)
8. Trump’s Lawyers Did Their Own Investigation Into Russian Connections and Found Nothing
Marc Kasowitz, one of Trump’s lawyers, had “investigated to see if there was anything that connected Trump to the Russian meddling. After a full month their initial conclusion was that there was nothing.” (Woodward, p. 169)
9. Mueller’s Scope of Investigation Was Unusually Broad
[Trump’s lawyer, John] Dowd examined the one-page Rosenstein order appointing Mueller May 17. Not only did it authorize a Russian investigation but it directed Mueller to investigate “any matters that arose or may arrive directly from the [Russian] investigation.” Dowd had never seen anyone in Justice wish such broad authority. (Woodward, p. 169)
Dowd informed the Mueller investigation that they Rosenstein’s orders were too broad and that “and no one in the Justice Department had the authority to investigate any matter they stumbled on. [He told them,] ‘That Order will not stand. But we are not going to throw rocks.’” (Woodward, p. 171)
10. Dowd’s Previous Concerns with Mueller
Dowd had other reason to feel uncomfortable with Mueller. He had once bumped into him at a Marine Corps parade and Mueller had challenged Dowd for defending Dong Young because he was “a crook.”
“That’s our system,” answered Dowd, who was offended that the FBI director would speak that way. Young was never charged, though the House Ethics Committee later rebuked him. Young soon became the longest-serving member of Congress. (Woodward, p. 170)
11. Dowd Convinced Trump to Help Mueller Rather than Hinder Him
Trump and White House Counsel Don McGahn did not want to cooperate with Mueller’s investigation. They wanted to assert executive privilege over nearly everything. Trump wanted to tell them to “go [screw] themselves.” But Dowd talked Trump into entirely cooperating with the investigation because he was so certain Trump wasn’t guilty of any Russian Collusion nor obstruction of justice.
If there was nothing to hide, Trump’s cooperation could help the prosecutor perhaps see it his way. He recommended to Trump that “we’d get a hell of a lot more with honey than we would with vinegar.” …
Dowd argued that cooperation would speed up the resolution and Trump eventually approved the honey-over-vinegar approach. (Woodward, p. 170–171)
12. Trump Administration Gives Mueller Unprecedent Access to Records
Mueller seemed relieved when he was told Trump’s administration was supporting the investigation entirely and not making any attempts to assert executive privilege.
“What do you need?” Dowd asked him. “We’ll get it to you. But let’s get this investigation done.” The president’s position is that he has nothing to hide. He is not happy with the investigation to say the least but we want to avoid a protracted battle. “But we’d like you to reciprocate. And that is, engage.” …
“The reason we’re cooperating is to get this damn thing over with,” Dowd said. “We’re not going to assert any privileges. This is over the objection of Don McGahn, but the president wants to do it. He wants you to see everything, talk to everyone.” (Woodward, p. 172)
Another Trump lawyer, Ty Cobb, came up with an innovative way to maintain, but get around, an executive privilege claims. He told Mueller that they were not waiving any privilege, but they would give Mueller a waiver for any documents they asked for. Mueller was “thrilled that he would see all the documents.”
In addition they agreed that they’ll answer whatever questions they had and even help get witnesses. (Woodward, p. 172)
Further, the Trump lawyers turned over 17 hours of Annie Donaldson’s dictation notes relating to matters being investigated by Mueller.
Nothing was held back. He told Mueller, “Bob, read Annie Donaldson’s notes if you want to know what was in the head of the president.”
All this was done with the president’s blessing. Dowd would talk to him and say, look, there’s the categories of documents. We’re going to give him this. …. “Constitutionally he has no right to the documents and testimony, but just out of respect for law enforcement, since you’re the chief, let’s just let him do it. Not get in the fight.” Dowd concluded that the president seemed fearless. He never said no. (Woodward, p. 198–199)
Dowd gave Mueller “1.4 million pages of documents from the Trump campaign and 20,000 pages from the White House. Dowd believed no documents had been destroyed.” Plus 37 witnesses were interviewed voluntarily. (Woodward, p. 198–199)
13. Dowd’s Article II Defense of Trump’s Power to Fire Comey
Dowd was convinced Trump had not colluded with Russia, so he felt the biggest problem he faced was allegations of obstructing justice when Trump urged “Comey to drop the Flynn investigation, and then fir[ed] Comey.” (Woodward, p. 173)
However, Dowd felt that it was impossible for Trump to be guilty of obstruction so long as he was only exercising his Article II constitutional powers and there was no underlying crime. (An argument Barr would later echo in his June 2018 memo.) Dowd later asserted to Mueller, “[Trump] could, if he wished, … exercise his power to pardon [Flynn] if he so desired.” (Woodward, p. 332) And therefore Dowd did not believe Trump could have obstructed justice by merely asking Comey to consider going easy on Flynn.
14. Obstruction of Justice Requires High Bar of Proving “Corrupt Intent”
The charge of obstruction of justice has a very high bar of proving a “corrupt motive.”
…generally prosecutors need evidence such as urging others to lie to investigators, destroying documents or ordering the payment of money for illegal actions, such as buying the silence of witnesses as Nixon had in Watergate. (Woodward, p. 173)
Dowd saw nothing equivalent between Trump and Nixon. Nixon had thousands of hours of tape recordings that clearly demonstrated that Nixon had intentionally obstructed justice, whereas Trump had nothing equivalent. However, Dowd was still worried because he knew prosecutors liked to make cases against especially high-profile individuals. (Woodward, p. 173)
15. Trump Dealt Poorly with the Investigation Emotionally
Woodward reports that “Those who spent the most time in the West Wing and Oval Office” saw that the Mueller investigation was overwhelming Trump emotionally and distracting him from being able to do his job. “Entire days were consumed by his frustration….” (Woodward, p. 174)
In addition, the media created perception that Trump himself was under investigation (before he actually was) had made it difficult for him to negotiate with leaders on the world stage. For example:
Trump relayed his conversation with Egyptian president Abdel Fattah el-Sisi, who had an abysmal human rights record…
“Dowd, remember who I’m talking to,” he said. “The guys a… killer. … I’m getting it done. He’ll make you sweat on the phone. And right before we make the deal, el-Sisi says… Donald, I’m worried about this investigation. Are you going to be around? Suppose I need a favor, Donald. … [It was] like a kick in the n***. It’s awful,” Trump said. (Woodward, p. 324)
It also made it difficult for Trump to negotiate with Putin and Russia because everything he did was seen as suspect by the media. Trump found it unacceptable that he had to call Mueller up any time he wanted to do something about Russia and let Mueller investigate it first. (Woodward, p. 325)
16. Accepting Dirt from a Foreign Source Was Standard Operating Procedure at the Time for All Politicians
On July 8, 2019 The New York times broke the story of Trump Jr., Manafort and Kushner meeting with a Russian lawyer who offered dirt on Hillary Clinton during the campaign. Dowd was shocked at how the media was treating this story:
“Mr. President, it’s horse****,” Dowd told [Trump]. And so what? Getting dirt on people was commonplace in campaigns and the nation’s capital. It even had a name — ‘opposition research’ or ‘investigative reporting.” That’s what half of Washington seemed to be paid for. Is there something wrong with that? No. … All the media posturing was disgusting. They were treating it like the crime of the century. (Woodward, p. 197)
17. False Bloomberg Story Corrected by Mueller’s Team
On July 20, 2017, Bloomberg published a bombshell story entitled “Mueller Expands Probe to Trump Business Transactions.” Dowd called Quarles (Mueller’s assistant) about the story and initially Quarles refused to comment. Dowd reminded Quarles of all the help he’d given them so far with their investigation.
Dowd continued, “the deal was, with you guys, if you guys added to the investigation, we’d get a heads-up first.”
“Because you gave us the subjects to cover,” Dowd said. “And every once in a while you guys add things and we put it on the list. I didn’t hear [this]….”
“You know, Jimmy,” Dowd added, “when you ask me a question, I give it all to you. So I need a better explanation.”
“John, let me put it this way,” Quarles said. “I’m 99 percent sure that it’s not us.” (Woodward, p. 199)
A few days later:
“Bob [Mueller] and I owe you one,” Quarles said. “Bob says don’t believe what you read in the papers.”
“I got it,” Dowd replied.
“We are really embarrassed,” Quarles said.
“You’ve delivered more than you promised, and we’re so pleased. We’re moving along. We’re getting it done. And there’s a lot of stuff here to organize ,but it came very well organized. We didn’t have to go hunt and peck. You didn’t drown us.”
Dowd knew about a target of a tax investigation who had once told the FBI that the answer to their request was somewhere in two warehouses. The agents spent years searching. … (Woodward, p. 199–200)
18. The Break Between Dowd and Mueller Begins
The investigation went on much longer than Dowd was hoping for. So he started to complain to Mueller and Quarles about getting the investigation done. He said to Mueller “Well, I got to tell you, Bob, I don’t know how long I’m going to last. I defend you guys all the time. I stand up for what you’re doing. But you know, we got people being interviewed over and over again.” (Woodward, p. 325)
But the real break between Dowd and Mueller was when Mueller started insisting he wanted to interview the president and would subpoena him if he didn’t agree.
19. The Real Reason Mueller Didn’t Subpoena Trump: He Thought He’d Lose
This sent Dowd through the roof because Trump wasn’t even supposed to be the main subject of the investigation.
“You go right the f*** ahead and get it!” Dowd said, striking the table with his hand. “I can’t wait to file a f****** motion to quash. And I want to hear you tell the U.S. district judge what the crime is. …”
Dowd said Mueller had all the evidence he could possibly need.
“My motion to quash is going to have everything we’ve given you, including the testimony of 37 witnesses. Including the 1,400,000 documents with the highlights on the most intimate conversations of the president. I want you to tell that judge why you need a grand jury subpoena. Which by the way, has never been issues in the history of the country to any president. And by the way, there is no president, all the way back to Thomas Jefferson, who’s ever been so transparent.”
Dowd continued, “You want to go to war? Let’s go to war. And by the way, I will tell the president that you have now threatened us with a grand jury subpoena.” …
“Bob, you threatened the president of the United States with a grand jury subpoena when he’s not a target. And barely a subject. He’s essentially a g**d*** witness. And I’m going to tell the judge that. So he has no criminal liability as of March 5, 2018 [that day’s date]. Nothing. … You guys tell me where the collusion is.” (p. 344–345) (Woodward, p. 343–344)
Dowd knew that a previous judge had ruled that:
“…executive privilege applied to the president and to his advisers in the case of the independent counsel’s investigation of Bill Clinton’s agricultural secretary Mike Espy. Prosecutors that wanted to overcome the privilege must show the materials sought contain important evidence that isn’t available elsewhere. The court ruled that prosecutors had to show a matter under investigation was a serious crime and that no one other than the subpoenaed witness could answer. (Woodward, p. 351)
20. Dowd Attempted to Simulate Mueller’s Interview with Trump
Dowd, knowing Mueller was pushing for an interview with Trump, tried simulating the interview to see if Trump could handle it well or not. He quickly realized he couldn’t allow Trump to testify because of Trump’s tendency to start ranting or, worse, to make up stuff on the spot. During one question Trump went ballistic for 30 minutes calling the whole thing a ‘hoax.’
“Mr. President, that’s why you can’t testify,” Dowd said. “I know you believe it. I know you think it. I know you experienced it. But when you’re answering questions. When you’re a fact witness, you try to provide facts. If you don’t know the facts, I’d just prefer you say, Bob, I just don’t remember. I got too much on here. Instead of sort of guessing and making all kinds of wild conclusions.” (Woodward, p. 331–332)
Dowd insisted to Trump that he should not testify.
21. Dowd Tells Mueller the Truth about Why Trump Shouldn’t Testify
In a surprising moment of trusting Mueller, Dowd actually opened up to him and explained his true reasons for not being able to allow Trump to testify for Mueller.
“We have a relationship of mutual trust. … And we’ve never failed you. … I have no secrets with you guys,” Dowd said. “I’m going to tell you about my conversation with the president…”
[Dowd] mentioned three of the questions he had taken Trump though…. On the third he had no clue. “He just made something up. That’s his nature.”
Dowd realized he had Mueller’s full attention. (Woodward, p. 345–346)
Dowd actually had Jay Sekulow (who had witnessed Dowd mock interview with Trump) role play Trump answering interview questions.
Sekulow’s [playing Trump] answer was classic Trump — and answers spun out of thin air, with contradictions, made-up stuff, anger. A perfect performance. A perfect Trump.
“Gotach! Gotach, 1001 [code for false statements in court!” Dowd said slamming the table….(p. 345–346)
In other words, Dowd openly admitted to Mueller that he couldn’t let Trump testify because Trump — who Dowd sincerely believed had committed no crime to date — would end up committing a crime when he contradicted himself or made something up on the spot while under oath. Mueller, acknowledge the problem, but still pushed to interview Trump because he “want[ed] to know if [Trump] had corrupt intent” to which Dowd responded incredulously, “Bob, do you think he’s going to say yes?” (Woodward, p. 346)
22. Quarles Admits Trump’s Legal Team Was Good to Work With
After Dowd openly explained why he couldn’t let Trump testify, Mueller said he’d think about it but that he’d “hate to think that you would be playing us.” This sent Dowd off because he had bent over backwards to be transparent with Mueller and assist his investigation.
“Wait a minute,” Dowd said. “Give me a f****** break. I’ve got a track record here that is unimpeachable. You ask Jim Quarles if I’ve ever played him. Is there anything that I’ve ever said to you that wasn’t correct?”
No. Quarles answered. “John’s one of the best lawyers we deal with.” (Woodward, p. 346–347)
23. Real Reason Trump Did Not Testify: Dowd Quit Because Trump Wouldn’t Listen to Him
Despite Dowd’s insistence that Trump not testify to Mueller, Trump himself wanted to. Trump, in typical Trump fashion, was convinced he’d be a great witness and that if he didn’t it would look bad in the press and to his base.
Dowd, knowing Trump would not be a good witness and may even end up in jail if he started contradicting himself, finally said:
“Mr. President, I cannot, as a lawyer… sit next to you and have you answer these questions when I full well know that you’re not really capable.”
Dowd wanted to dress it up as much as possible, to say, it’s not your fault. … He knew in this confrontation he could not be insulting. He could not say what he knew was true: “You’re a f****** liar.” That was the problem.
So Dowd said, “You do have trouble staying on the subject. And that can defeat you. Then you try to catch yourself, and you misstate something, and bam. It’s like Mike Flynn not remembering the conversation with Kislyak.” (Woodward, p. 351–357)
Trump told Dowd he was going to testify anyhow, so Dowd quit. This act likely saved Trump’s presidency, because after that Trump backed out of testifying to Mueller.
Dowd believed that the president had not colluded with Russia or obstructed justice. But in the man and his presidency Dowd had seen the tragic flaw. In the political back-and-forth, the evasions, the denials, the tweeting, the obscuring, crying “Fake News,” the indignation, Trump had one overriding problem that Dowd knew but could not bring himself to say to the president: “You’re a f****** liar.” (Woodward, p. 351–357)
24. The Mueller Report (Should) Make Obama’s Handling of Russia Look Bad
The Mueller report flatly states that Russia began interfering in American democracy in 2014. Over the next couple of years, the effort blossomed into a robust attempt to interfere in our 2016 presidential election. The Obama administration knew this was going on and yet did nothing. In 2016, Obama’s National Security Adviser Susan Rice told her staff to “stand down” and “knock it off” as they drew up plans to “strike back” against the Russians, according to an account from Michael Isikoff and David Corn in their book “Russian Roulette: The Inside Story of Putin’s War on America and the Election of Donald Trump”. (From CNN’s “Mueller’s report looks bad for Obama”)
25. Do We Know Russia was Responsible for the DNC Hack?
Mueller didn’t investigate if Russia really was behind the DNC email hack.
In a May 8 broadcast with Batchelor, Cohen said even more adamantly that Mueller’s a priori assumption that Russians hacked into the DNC emails, his failure to undertake his own forensic investigation, and his failure to interview Bill Binney, a former technical director at the National Security Agency, and Julian Assange himself, should be enough to discredit the whole report.
Mueller’s information from the NSA, CIA, and FBI was always somewhat suspect:
“Not addressed [in the report] is the point made by a number of American hacking experts that Russian state hackers would have left no fingerprints, as US intelligence claimed they had. Indeed, Veteran Intelligence Professionals for Sanity believe that the damaging DNC documents were not hacked but leaked by an insider. If so, it had nothing to do with Russia. (The NSA, which has the capacity to monitor the movement of emails, was only ‘moderately confident’ in the report it co-signed, while the CIA and FBI were ‘highly confident,’ even though the FBI inexplicably never examined the DNC computers.) [Later, Cohen said that a source had told him that, in NSA parlance, “moderately confident” means they don’t know.]
Consortium News, despite a left-bias, has consistently run stories questioning the Russian Governments involvement in “Russia-gate.” For example, in this article “Concord Management and the End of Russiagate?”
The IRA indictment initially seemed to be a no-lose proposition for Mueller. He got to look good in the press, the media got to indulge in yet another round of Russia-bashing, while, best of all, no one had to prove a thing.
Then came the unexpected. Concord Management hired Reed Smith, a top-flight law firm with offices around the world, and demanded to be heard. The move was “a real head-scratcher,” one Washington attorney told Buzzfeed, because Concord was beyond the reach of U.S. law and therefore had nothing to fear from an indictment and nothing to gain, apparently, from going to court. But then the firm demanded to exercise its right of discovery, meaning that it wanted access to Mueller’s immense investigative file. Blindsided, Mueller’s requested a delay “on the astonishing ground,” according to McCarthy, “that the defendant has not been properly served — notwithstanding that the defendant has shown up in court and asked to be arraigned.”
This led to the judge ordering Mueller and Barr to no longer claim that Concord Management had ties to the Russian government as that would prejudice jury selection.
26. Mueller Report Misrepresents Dowd’s Voice Message
In Mueller Report Distilled #37, I quote the Mueller report quoting Dowd as saying:
“I understand your situation, but let me see if I can’t state it in starker terms…. [I]t wouldn’t surprise me if you’ve gone on to make a deal… with the government….. [I]f… there’s information that implicates the President, then we’ve got a national security issues, … so you know, … we need some kind of heads up. Um, just for the sake or protecting all our interests if we can…. [R]emember what we’ve always said about the President and his feelings towards Flynn and, that still remains.” (Mueller Report, p. 333)
In context, this comes across a bit sinister. You have Dowd calling Flynn and asking for information and saying things that sound almost like a threat. However, a judge released the actual voice message (which you can listen to here) and here is the full context in the transcript:
Hey, Rob, uhm, this is John again. Uh, maybe, I-I-I-’m-I’m sympathetic; I understand your situation, but let me see if I can’t … state it in … starker terms. If you have … and it wouldn’t surprise me if you’ve gone on to make a deal with, and, uh, work with the government, uh … I understand that you can’t join the joint defense; so that’s one thing. If, on the other hand, we have, there’s information that … implicates the President, then we’ve got a national security issue, or maybe a national security issue, I don’t know … some issue, we got to-we got to deal with, not only for the President, but for the country. So … uh … you know, then-then, you know, we need some kind of heads up. Um, just for the sake of … protecting all our interests, if we can, without you having to give up any … confidential information. So, uhm, and if it’s the former, then, you know, remember what we’ve always said about the President and his feelings toward Flynn and, that still remains, but — Well, in any event, uhm, let me know, and, uh, I appreciate your listening and taking the time. Thanks, Pal.
27. Mueller’s Legal Reasoning for Why He Couldn’t Make a Prosecutorial Judgement was Flawed
In Mueller Report Distilled #49, Mueller explains why he is not going to make a prosecutorial judgment. For the most part, the media accepted his reasoning. However, several sources — even many liberal ones — eventually did call out the problems with Mueller’s arguments.
But Mueller’s belief relies upon the flawed premise that the only way the President can clear his name is through an actual criminal case. This makes perfect sense if a criminal case is being brought but makes no sense when a criminal case is not brought. If a criminal case is not brought, the President would be free to respond any way he wished — through a rebuttal prepared with the aid of counsel and/or in the court of public opinion through social media (e.g., Twitter), the White House press secretary and other advocates. Given that, that is exactly what is happening, and it is obvious that Mueller’s solution accomplished nothing different than if he had announced a determination that the President engaged in criminal conduct but would not be charged.
Indeed, Mueller’s actions make it plain that he must have concluded that the President committed obstruction of justice because he otherwise would have announced, as he did with regard to his Volume I conclusions, that the evidence did not establish obstruction of justice. Mueller thus inconsistently chose to follow the Justice Manual direction about collusion/conspiracy but not about obstruction.
Why did Mueller act in this illogical and inconsistent manner?
A similar argument from the “right-center biased” Real Clear Politics (media bias) in an interview with Alan Dershowitz:
If there had been a Mueller report about Hillary Clinton or a Democrat and Mueller had done the same thing he did here, that is basically say, look, if the information had proved he was totally innocent we would have said so, many in the media would have attacked that as beyond the proper scope of a prosecutor. The media does not pass the “shoe on the other foot” test. If the political parties were reversed the media would not be consistent. …
…[Mueller] not only put his thumb, he put his elbow on the scale. It was clearly intended to encourage impeachment by the House. First of all, it is not the proper object of a special counsel to do the investigation for Congress. That violates the separation of powers. It is Congress that has to do its own investigation and has to take political responsibility for doing it. When they shut that off to special counsel, special counsel take the responsibility it destroys the system of checks and balances. …
[If] [h]e knew on day one he could not indict a sitting president under Justice Department regulations. And so, the question that comes up is, why did we have a special counsel at all?
28. Everyone But Mueller Thought He Could Make a Prosecutorial Judgement
From the Left-Center biased The Hill (media bias) comes this article that calls out that basically everyone in the world, but Mueller, thought it was his job to make a prosecutorial judgment and didn’t believe the OLC blocked him from doing so.
The most troubling failure… was Mueller refusing to reach a conclusion on obstruction. … He… stated that he would not reach a conclusion on obstruction, without clearly explaining his rationale beyond citing past Justice Department memos stating that a sitting president cannot be indicted.
Nevertheless, one can accept these memos and still see the utter illogic in reading them as a bar to reaching conclusions as a special counsel.
First, any implied interpretation would not only contradict the governing regulations but contradict the express directions of the superiors overseeing Mueller. Both Barr and Rosenstein pushed Mueller to reach a conclusion on obstruction. When he failed to do so, they immediately did it for him. No one has suggested that they violated Justice Department policy in reaching a conclusion.
Second, any reading of the two Justice Department memos quickly dispels any notion of a limit on special counsels. Even accepting the flawed logic of the memoranda, they only speak to indicting a president while in office. … Yet, nothing in that policy would stop a special counsel from making findings of criminal conduct.
Finally, this is what a special counsel does, as defined in the regulations, which outweigh memos from the Office of Legal Counsel. A special counsel makes prosecutorial decisions.
For two years, both Congress and the executive branch expected Mueller to reach conclusions. Before filing his report, Mueller was expressly told to do so by Barr and Rosenstein. If he was not willing to do so, he should have stood aside when asked to come on.
29. Comparison Between Mueller and Past Special Counsels
From the Left biased MSNBC (media bias) comes this video “How Mueller’s predecessors confronted presidents.” I can’t transcribe it all here and it loses it’s full effect if you don’t watch it. Needless to say, Mueller is unlike every Special Counsel before him and he’s the only one that claims he can’t make a prosecutorial judgment due to the OLC.
30. There is No Conflict Between the OLC and a Prosecutorial Judgement
The special counsel’s meekness apparently arose out of his perception that there was a conflict between two standards used at the Justice Department. The first standard is the Nixon-era opinion by the Department of Justice’s Office of Legal Counsel (“OLC”) prohibiting the indictment or criminal prosecution of a sitting President. The second standard is direction in the Justice Department’s Justice Manual that federal prosecutors assess whether a person’s conduct “constitutes a federal offense.” Mueller’s decision to abide by the first standard but not the second was an exercise of discretion unfounded in any legal principles or rules.
Indeed, he should have followed both standards, because they in no way conflict with each other. Rather, they complement each other by directing a federal prosecutor investigating the President to determine if the conduct at issue was a federal crime but refrain from indicting a sitting President.
But into this seemingly simple two-step process Mueller inserted his own sense of “fairness.” [i.e. Instead of following the to mandates above that weren’t in conflict.]
31. Mueller’s Decision to Not Make a Judgment Practically Guaranteed Trump Would Get Off
Finally, from the Left-Biased CNN (media bias) article “Mueller just Handed Republicans a Gift.” This article points out the Mueller’s decision to not make a judgment has consequences to the outcome of the whole case against Trump, namely that it practically guaranteed Trump would not be impeached or prosecuted.
Americans needed a definitive, plain-language, nonlegalistic statement from Mueller about one and only one question: Did the President and his henchmen and women commit a crime? …
If the answer to any of those questions had been an unequivocal yes, the House would have been required under the Constitution to hold impeachment hearings. …
Instead of answering any of the questions we Americans had hired him to answer, Mueller pleaded “no contest.” This was not a “neutral” political move. It provided Republicans good reason to argue that the investigation was a two-year, multimillion-dollar waste of time.”
…Mueller chose to immunize the person who may well be the fulcrum for those crimes, allowing him to remain in the highest position in the land without a trial.