The (Redacted) Mueller Report: First Takes from the Experts

Special Counsel Robert Mueller’s final report, as redacted by the Department of Justice, is now released. Here are some early reactions from legal and intelligence experts. For additional background, see our “Hot Topics” archive on the Russia investigation.

(This article has been updated to add former U.S. Attorney Barbara McQuade’s observations on how the report effectively is a “referral to Congress” on obstruction.)

We will add more reaction as it develops, so check back often.

Asha Rangappa (@AshaRangappa), Senior Lecturer at Yale’s Jackson Institute for Global Affairs, served as an FBI counterintelligence agent from 2002 to 2005. She explains how Attorney General Barr mischaracterized Mueller’s decision declining to prosecute the President for obstruction and that Mueller’s Report challenges DOJ policy and anticipates a role for Congress or future prosecutors:

It’s clear that Attorney General Barr obscured and mischaracterized the bases upon which Mueller declined to reach a prosecutorial decision on whether President Trump committed the crime of obstruction. He did so based on two unsettled legal questions: First, current DOJ policy not to charge sitting presidents, and second, Trumps’ lawyers’ asserted defense that a president cannot legally obstruct justice (which happens to exactly mirror Barr’s own legal theory, which he sent in an unsolicited memo to DOJ one year ago). Since either of these theories might preclude the president from rebutting the evidence in an adversarial process, Mueller believed a fairness principle constrained him from accusing the president in the form of recommended charges.

Notably, the report extensively challenges the legal basis of the DOJ policy as well as Trump’s (i.e., Barr’s) Article II defense. It also makes an affirmative case for Congress’ authority to investigate obstruction of justice by the president and observes that the president could be exposed to criminal liability once he leaves office, thereby justifying a full investigation and gathering of evidence. In doing so, Mueller makes clear that his findings were intended for independent evaluation by Congress, or by future prosecutors — not by Barr himself.

Alex Whiting (@alexgwhiting), Professor at Harvard Law School and member of the board of editors of Just Security. He served as a former federal prosecutor at the Department of Justice and the U.S. Attorney’s Office in Boston, also hones in on obstruction, including several ways in which Mueller’s report is more damaging to the President than Barr’s summary implied:

Four things jump out from an initial read of the obstruction section of the Mueller report. First, Mueller declined to make a call on whether the President committed criminal acts of obstruction solely because of the Justice Department’s current policy that a sitting President cannot be indicted, not because he concluded that such charges could not be supported legally or factually. In fact, he says that they would have stated if they found that he “clearly did not commit obstruction of justice.”

Second, the report is dismissive of any statutory or constitutional barriers to a criminal obstruction charge against the President. The sole question is whether the evidence would be sufficient to bring a charge. Third, with respect to the question of evidence, the report lays out a pattern of acts by the President to interfere with or end the investigation based on substantial and corroborated evidence.

Fourth, with respect to the question of the President’s intent, and whether it met the requisite standard that it be “corrupt,” the report acknowledges that one consideration is that the investigation did not find sufficient evidence of underlying criminality, and that this may cut against a finding that the President was acting to obstruct justice. However, the report sets forth numerous reasons why the President saw the Special Counsel investigation as a threat to him and the legitimacy of his presidency and was thus motivated to take the steps he did to interfere with the investigation.

Ned Price (@NedPrice), who directs Policy and Communications at National Security Action and was Special Assistant to President Barack Obama on the National Security Council staff, where he served as Spokesperson and Senior Director for Strategic Communications (earlier, he was a senior analyst and Spokesperson at the CIA) explains that we still don’t have an accounting of the national security implications of the Trump campaign’s involvement with Russian election interference, even if it doesn’t constitute criminality:

One of the Mueller Report’s two volumes pertains to Russia’s assault on our democracy and the Trump campaign’s knowledge of and assistance to that attack. Despite the hundreds of redacted pages released today, I’m struck by the narrow nature of the document, which is written exclusively through a factual and prosecutorial lens. Specifically, it re-traces the outlines of Russia’s efforts as well as the actions of Trump associates and concludes by explaining the decision to prosecute, or not, those at the center of this saga. What this volume doesn’t do, however, is account for the national security implications stemming from these episodes.

Contrary to some initial speculation, the report—or at least the version that was provided to the public and Congress today—doesn’t have a counterintelligence component to it. As such, we are left with a solid understanding of the reasons several Trump associates don’t face criminal charges (in the case of Donald Trump, Jr., it’s, in part because, prosecutors couldn’t be sure he had the wherewithal to recognize the potential criminality of his actions). But what we don’t have is an equally complete understanding of the national security risks Trump associates’ questionable behavior engendered. For example, were they susceptible to blackmail or coercion? Were the Russians emboldened knowing that they had leverage of key Trump affiliates? And, perhaps most importantly, has Trump’s past and potential personal financial interests in Russia, including the Trump Tower project, contoured his foreign decisions? In many ways, the implications of those answers are farther reaching than the more narrow prosecutorial decisions detailed in the Report.

Tess Bridgeman (@bridgewriter), Senior Editor of Just Security and Senior Fellow and Visiting Scholar at the NYU Reiss Center on Law and Security, served as Special Assistant to President Obama, Associate Counsel to the President, and Deputy Legal Adviser to the National Security Council (NSC), as well as at the State Department. She emphasizes the damage to our norms and institutions caused by President Trump’s attacks on law enforcement and AG Barr’s excusing of them as well as the role for Congress going forward:

First, one implication that is clear before even reading the redacted report is how brazenly President Trump and his new AG Bill Barr have sought to erode norms of respect for our institutions of justice and the dedicated professionals who work in our law enforcement and intelligence communities. In his pre-release press conference, AG Barr excused and defended President Trump’s incessant, dishonest attacks against DOJ, the FBI, and the professionals on Special Counsel Mueller’s team as “sincere” frustration and anger. These kinds of attacks are never acceptable. The President’s attacks and Barr’s conduct are deeply damaging to our institutions.

Second, it is striking that the report lays out in great factual detail Russia’s sweeping interference in the 2016 U.S. elections (which was already established) and the “numerous links between the Russian government and the Trump Campaign,” but draws conclusions only about criminal charging decisions. The report also provides a road map to issues that were not able to be conclusively settled during the course of the Special Counsel’s investigation. The upshot: It is still up to Congress to investigate the non-criminal aspects of Russia’s election interference and the Trump campaign’s role, to hold accountable those who participated in and knowingly benefited from a foreign state’s attempts to subvert our democratic processes, and to pass legislation that could help secure our elections from future interference.

Joshua Geltzer (@jgeltzer), Founding Executive Director of the Institute for Constitutional Advocacy and Protection as well as Visiting Professor of Law at Georgetown University Law Center, emphasized the Report’s detailing of significant intermingling of Russian election interference activities and Trump campaign activities:

Among the Mueller Report’s significant contributions to our understanding of the 2016 Russian disinformation campaign is its thorough documentation of how intertwined that campaign became with the online messaging of the Trump team itself. This is a finding of importance regardless of the level of direct coordination between the Trump team and Russian actors: this shows how the campaign of a U.S. presidential candidate, wittingly or unwittingly, echoed, amplified, and fed back into the disinformation operations of a hostile foreign power. In Mueller’s words, “on multiple occasions, members and surrogates of the Trump Campaign promoted–typically by linking, retweeting, or similar methods of reposting–pro-Trump or anti-Clinton content published by the [Russian Internet Research Agency] through IRA-controlled social media accounts.” While we already knew of this activity generally, it’s remarkable to see this thorough documentation of it–and it speaks to the complicated ways in which Russian and Trump activities intermixed and intermingled in 2016, regardless of the “collusion” question.

Rolf Mowatt-Larssen, Senior Fellow at the Harvard Kennedy School’s Belfer Center for Science and International Affairs. He is a former Director of Intelligence and Counterintelligence at the Department of Energy; and, at the CIA, a former Chief of the Europe Division in the Directorate of Operations, and former Chief of the Weapons of Mass Destruction Department, Counterterrorism Center. He explains the different standards in assessing criminal liability and espionage-related activity and why it takes longer to prove the latter:

Every reader of the Mueller report should examine the evidence from two vantage points with distinctly different standards of judgment. What crimes were committed? That is a question of the law. Second, did members of the Trump campaign establish contact with agents of a foreign power (Russian intelligence and/or Wikileaks) for the purpose of enlisting their assistance to help get Trump elected? Those are two different questions that could have opposing answers. On the one hand, collusion/conspiracy might not reach the legal threshold for prosecution. On the other hand, not reaching the legal standard for prosecution does not “exonerate” anyone from being guilty of espionage-related activity. That is a separate determination based on different standards evidence that applies to prosecution.

Historically speaking, it is common for FBI and CIA to have gathered sufficient evidence against a target of a counterintelligence investigation to establish that someone is a spy. In many cases, however, there is insufficient evidence to arrest and prosecute that person. It can take years to reach the legal threshold for prosecution for espionage activity even if the counterintelligence case is compelling. Thus, it should not be surprising if the case for collusion in the Mueller report is not conclusive.

Barbara McQuade (@BarbMcQuade), Professor at the University of Michigan Law School. She served as United States Attorney for the Eastern District of Michigan and Co-Chair of the Terrorism and National Security Subcommittee of the Attorney General’s Advisory Committee from 2010-2017. She explains how the report could be used as “a roadmap for Congress” on potential impeachment proceedings.

The Mueller Report appears to be a roadmap for Congress to conduct impeachment proceedings as to obstruction of justice. The report explains that the special counsel believed that a sitting president could not be indicted, and that “fairness counseled against” concluding that President Trump committed crimes because he could not avail himself of the normal adversary process for public name-clearing before an impartial adjudicator.

Instead, Mueller decided to “preserve the evidence when memories were fresh and documentary materials were available.”  The report does not say that the special counsel left it to the Attorney General to decide, as Barr indicated in his letter to Congress. Instead, Mueller lays out 10 episodes of potential obstruction of justice, stating, “While this report does not conclude that the President committed a crime, it also does not exonerate him.” This is not a tie or a tossup. This is a referral to Congress. Mueller did not recommend charges because he did not believe it was his role to do so.

Andy Wright (@AndyMcCanse), Senior Fellow and Founding Editor of Just Security and Partner in the Washington Office of K&L Gates, served as Associate Counsel to President Barack Obama in the White House Counsel’s Office and as Staff Director and Counsel to the national security subcommittee of the U.S. House Committee on Oversight and Government Reform. He explains in this article that the release of the redacted version of this report may not signal the end of debates over Executive Privilege, and is likely only the beginning of congressional activity related to the findings and remaining investigatory steps.

 

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