Small “d” democracy

By Mark Lurinsky

Sometime after Robert Mueller’s late May press conference cast doubt on his willingness to become a witness at public hearings, I decided that I would recommit to the challenge of reading the full Mueller Report, which I had bought and put aside.  (Democracy isn’t a spectator sport, I told myself.)  I’m glad now that I pressed on.  With Mueller’s testimony to Congress now imminent, reading the report makes even more sense for us.

Why Mueller Matters

Donald Trump, both as a presidential candidate and during his time in office has worked relentlessly to cast doubt on and minimize the unanimous findings of all U.S. intelligence agencies that the Russian interference with our 2016 elections was a major occurrence and that the Putin regime is continuing in its efforts to manipulate the U.S. 2020 elections.  He has repeatedly resisted the attempts of members of his own administration, such as the former homeland security secretary Kirstjen Nielsen and Congress to organize concerted federal government action to secure our elections.  Most recently, he has refused to commit himself to rejecting and reporting offers of campaign help by hostile foreign governments in future elections, while at the same time empowering his attorney general to open highly politicized attacks on agents of the FBI and the intelligence agencies and others Trump blames for the investigation into Russian interference.

Both as a candidate and as president, Trump has also asserted that “I have nothing to do with Russia,” despite the large number of credible reports to the contrary, which he has glibly dismissed.

With partisan divisions running high in our country, it has been extremely difficult to find a common language, and establish objective truth.  We have been tremendously fortunate that former FBI director Robert Mueller was appointed as special counsel to investigate and establish the relevant facts and produced the objective report we need.

The report points to the increasing urgency for Congress and the American people to continue the investigations.

The Key Takeaways

Mueller’s own executive summaries are essential reading, even if you never get through the full report.  Lawfare has the full text of these executive summaries in its blog.  Some of the most significant takeaways can be found in those summaries and the brief introductions to the two volumes:

Russian Interference:

“The Russian government interfered in the 2016 presidential election in a sweeping and systematic fashion.” 

“First, a Russian entity [the Internet Research Agency, LLC, “IRA”, funded by the Putin functionary Russian oligarch Yevgeniy Prigozhin] carried out a social media campaign that favored presidential candidate Donald J. Trump and disparaged presidential candidate Hillary Clinton.” Volume I, Section II. of the report details the efforts of the IRA to create the pretense that its thousands of posts on Facebook, YouTube, Twitter, Tumblr and Instagram accounts were from Americans.

“Second, a Russian intelligence service conducted computer-intrusion operations against entities, employees, and volunteers working on the Clinton Campaign and released stolen documents [in co-ordination with Wikileaks].”  In addition, the investigation found that the GRU, the Russian Federation’s main military intelligence service, targeted individuals and entities involved in the administration of the elections.  “Victims included U.S. state and local entities, such as state boards of elections … secretaries of state, and county governments, as well as individuals who worked for those entities.”  The report also noted that the GRU targeted “private technology firms responsible for manufacturing and administering election-related software and hardware, such as voter registration software and electronic polling stations.”

Links Between The Russian Government And The Trump Campaign:

“The investigation … identified numerous links between the Russian government and the Trump campaign.”     “Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in election interference activities.” Trump and other campaign officials disseminated Russian generated content, and made direct attempts to coordinate with Russia through various high profile campaign official meetings with Russian-linked operatives.   It is noteworthy that this section of the Volume I introduction points out that “A statement that the investigation did not establish particular facts does not mean that there was no evidence of those facts.”

Trump And Obstruction Of Justice:

In Volume II’s introduction and various other places, the report points out that an existing opinion of the Justice Department’s Office of Legal Counsel and other considerations precluded the investigative team from a traditional criminal prosecution of Trump. A criminal accusation against a sitting president would “preempt constitutional processes for addressing presidential misconduct.” [It would be hard to take this last references as anything other than an allusion to a potential impeachment investigation.]  In order to preserve evidence of possible crimes and safeguard the integrity of the criminal justice system, the investigative team conducted a “thorough factual investigation.” The Investigation outlined evidence of Trump and his associates’ acts of obstruction of justice and other interferences with investigations and official proceedings.

Ten specific instances of possible obstruction were analyzed by the investigators:

1. Trump’s conduct toward the investigation of Michael Flynn: Although Trump’s national security advisor Michael Flynn ultimately pled guilty to lying to the FBI about his contact with the Russian ambassador and to other crimes, the investigators found “substantial evidence” corroborating then-FBI Director Comey’s account that Trump privately asked him to “let Flynn go”.[1]
2. Trump’s reaction to the public confirmation of the FBI Russia investigation.
3. Trump’s firing of FBI Director Comey.
4. Trump’s efforts to remove the special counsel. After first lambasting attorney general Sessions for allowing the special counsel’s appointment [“you were supposed to protect me.”] Trump phoned White House Counsel Donald McGahn and ordered him to direct Assistant Attorney General Rosenstein to remove Mr. Mueller.  Despite Trump’s subsequent denials, the testimony of McGahn and other high level administration insiders substantiated this account of events.
5. Trump’s efforts to limit the special counsel investigation. Trump associate Corey Lewandowski testified that he was asked to give Jeff Sessions a Trump-dictated message demanding that he “un-recuse” himself from the investigation and then declare that the activities of the past campaign would be off-limits to the investigators.  Trump followed up by ordering Reince Preibus, his chief of staff, to demand Sessions’ resignation.
6. Trump’s efforts to prevent disclosures about the June 9, 2016 Trump Tower campaign meeting with Russian operatives.
7. Trump’s efforts to have Jeff Sessions take over the investigation.
8. Trump ordered Don McGahn to deny that he tried to fire the special counsel. This account reads to me as an example of classic witness tampering, since Trump directed that McGahn write a false letter to the effect that he never ordered the firing of the special counsel.[2]
9. Trump’s conduct toward potential witnesses Michael Flynn, Paul Manafort and others. It’s hard to read this as anything other than more witness tampering, especially regarding Manafort, since the former campaign manager’s business partner Richard Gates, told investigators that Manafort was told by Trump’s personal lawyer that they should “sit tight” and they would be “taken care of” at the same time that Trump was encouraging public speculation on potential presidential pardons.[3]
10. Trump’s conduct involving Michael Cohen and the Trump Tower Moscow project.

The report does not state conclusions on these instances as obstruction of justice. Instead, for each of the instances, the related section sets forth an analysis of how this evidence might align with the three main elements needed to prove an obstruction of justice offences under criminal law:  an obstructive act, a connection to an official proceeding, and a corrupt intent.  It is this delineation of the evidence and discussion of its importance that has been referred to by some as Mueller’s “road map” for Congress to pursue its own investigation and action.  Notably, the report states that “The conclusion that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.”  [Volume II, page 8.]

Mueller’s conclusion on the evidence of obstruction of justice is key: Although the team did not make a traditional prosecutorial judgement, “if we had confidence after a thorough investigation that the President clearly did not commit obstruction of justice, we would so state.  …we are unable to reach that judgment.  Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”

Why We Need Congress And The Courts To Investigate Further

Perhaps the most useful analysis I’ve seen of the Mueller Report came from Fordham law professor Jed Shugerman.  Shugerman argues convincingly in a recent New York Times op-ed that while the various evidence presented in the volume on Russian interference and the Trump campaign’s “numerous links” with the Russians did not establish beyond a reasonable doubt (the criminal prosecution standard) that the campaign conspired and coordinated with the Russian attacks on our election, this evidence quite credibly could be sufficient under a preponderance of the evidence standard that is closer to what would apply in an impeachment investigation.  [I would add that the evidence the Mueller team uncovered is especially relevant to a common sense criterion that Americans would and should use in evaluating Trump’s trustworthiness and fitness in his re-election bid.]

Moreover, the aggregate impact of Trump and his team’s various acts of obstruction can’t be ignored in evaluating the not fully resolved issues of coordination with the Russians, as Shugerman also reminds us.  Lies by individuals associated with the Trump campaign “materially impaired the investigation of Russian election interference,” as the report noted, and it specifically named campaign advisor George Papadopoulos, national security advisor Michael Flynn, campaign chair Paul Manafort and others caught in identified lies. Further, “some of the individuals interviewed or whose conduct we investigated … deleted relevant communication or communicated during the relevant period using applications that feature encryption”, and in such cases the investigators weren’t able to corroborate witness statements or fully question witnesses about statements that appeared inconsistent with other known facts.  Accordingly, “given these identified gaps,” the investigators could not rule out that “the unavailable information would shed additional light on (or cast in a new light) the events described in the report.”   

Further, despite reports that the Mueller team had obtained some access to Trump entities financial records, the evidence of Trump’s longer-term ties to Russian banks, Russian oligarchs and Russian organized crime figures, all of which have been explored by investigative reporters, is also not found in the Mueller report itself, which leaves a lot more to be investigated by Congress and others with independence from the Trump White House.

My reading of Bob Mueller’s report left one thing perfectly clear to me, the investigations, including an impeachment investigation, must go forward.

But don’t take my word for it.  Read it yourself!

Mark Lurinsky has been an activist on matters of public policy since 1968. He is currently a member of BlueWaveNJ’s Electoral Reform Working Group and is co-chair of the Healthcare Committee.

Under the blog title Small “d” democracy, Mark will continue to weigh in on the current issues that define how our country can become a more just, equal, and democratic society.

[1] The national security implications of Trump’s relationship with ex-general Flynn, beginning in February 2016, are actually much more chilling than this section of the report indicates, since it’s been well established Flynn was actively working for a company affiliated with the government of Turkey for the last three months of the presidential campaign under a $600,000 public relations contract and he was earlier a paid intelligence consultant to several Russian companies with suspected links to the Putin regime and its intelligence services.  Trump named Flynn his national security advisor with the highest level of access to all our intelligence, but he was also reportedly on Trump’s short list for the vice president job before Pence was chosen.

[2] McGahn refused to do it, despite Trump’s threat that, “If he doesn’t write a letter, then maybe I’ll have to get rid of him.”

[3] Trump and his intermediaries’ overtures to Michael Flynn were similarly in the direction of encouraging him not to cooperate with the investigation, including after the point that Flynn withdrew from a joint legal defense with Trump in November 2017.  The transcript of a voicemail Flynn’s attorney received from Trump’s lawyer (reportedly John Dowd) seems on the face of it a solicitation to maintaining improper back door communication with him about the investigation:  “It 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 … we need some kind of heads up.  Um, just for the sake of protecting all our interests if we can… [R]emember what we’ve always said about the President and his feelings toward Flynn and, that still remains …”