The Mueller Report: On Law and Morals

Four weeks ago I wrote this post about the Barr letter summarizing his views of the Mueller Report. This week we finally got to see that actual Report. Like many others, I devoted several hours Thursday night to give a cursory read of what Mueller presented.

Cover of the Mueller report.

The report is laid out in two volumes; the first on Russian election interference and the hacking of DNC e-mails and the second on matters of obstruction of justice. As expected, the first part of Volume I repeated in narrative form everything that had been covered in the earlier indictments of Russian agencies and individuals.

Mueller and his team were meticulous in spelling out what the legal standards they would use to conclude that a crime had occurred. There had to be intent to commit the offense with clear knowledge of the illegality involved and a demonstrable act. There was no evidence that the Trump campaign was aware of the “active measures” to impact the election (although Manafort’s sharing of polling data fits that supposition) or that the DNC servers were going to be hacked.

It appears so far (this may change when the likely Stone redactions are removed) that there was no illegality with regard to the sharing and celebration over the WikiLeaks dump of the hacked e-mails. The same is true with the Trump campaign using/sharing the active measures items from groups like TNGOP (one of the Russian fake twitter accounts).

Yet it is troubling moral behavior even if not illegal. The “win at all costs” mentality which demonizes opponents and believes the worst of others is deeply problematic. Imagine a shady appliance store selling hugely discounted flat-screen TVs. You may not be involved in stealing TVs or in receiving stolen property but you know these prices are too good to be true. You didn’t coordinate (or “collude”) but you knew illegal stuff happened somewhere along the way and just didn’t care.

The rest of volume one is about other contacts between the Trump campaign/administration and the subsequent lying/misdirection about those contacts. There are a lot of these. The Mueller team explain that the laws about conspiracy (not collusion) would apply if parties clearly and definitively acted in concert to violate laws governing foreign influence, campaign finance, or fraud. The team did not charge any individuals with conspiracy on any of these grounds.

Again, things that fall short of legal standards still raise troubling moral issues. Some of the outreaches to Russians were about legitimate policy and yet were covered up. Others might have questionable status but were not brought to completion. The avoidance of standard channels and the lying about what had happened has been a feature and not a bug of the Trump administration.

Volume two is about obstruction. The obstruction question hinges on several elements of law as well as the DOJ Office of Legal Counsel policy around indicting a sitting president. The report makes clear that to violate the law, one would have to knowingly attempt to interfere with an ongoing investigation or proceeding with some corrupt motive. The decision to consider the OLC guidelines reflects a concern that even a sealed indictment puts a defendant at great disadvantage because of the impossibility of mounting an affirmative defense. So proceeding without a prosecutorial decision occurs out of a desire to be fair to the administration within the guidelines of due process.

Yet, in spite of the legal limitations, the Mueller report is clear about the concerning nature of what occurred. This is evident in this description from the beginning of the obstruction volume.

Beginning in 2017, the President of the United States took a variety of actions towards the ongoing FBI investigation into Russia’s interference in the 2016 presidential election and related matters that raised questions about whether he had obstructed justice.

That these actions occurred is not in question. The report instead explores whether they approach the legal standard, the OLC guidelines notwithstanding. The Mueller team divides the obstruction questions into two time periods — before and after the appointment of the Special Counsel. Activities prior to that, while unusual, fail the legal test because there was no investigation related to the president and his team. Matters after that point raise more difficult questions as some of the incidents do appear to be designed to disrupt the ongoing investigation. This is why the following paragraph appears at least three times by my count:

[I]f we had confidence that after a thorough investigation of the facts that the President clearly did not obstruct justice, we would so state. Based on the facts and the available legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

Again, this conclusion seems to fit with a distinction between what can be legally charged and what is of deep moral concern. The President appeared to be willing to do what ever might work to his advantage including clear deception and giving orders that subordinates refused to follow because they were so far outside the norm (and likely opened them up to personal liability.

This pragmatism over morality endorses a “whatever accomplishes the goals” strategy. I was reminded reading the responses to the report of this PRRI poll from October of 2016. It asked respondents if a candidate with immoral personal characteristics could still be effective in public life. While only 40% of Americans agreed in 2011, over 60% agreed in 2016. For white evangelicals, this jumped from 30% to 70%.

The two days since the report was released have shown the same tenuous views of morality. Administration talking points cherry-pick pundit or politician overreach of what the Mueller report would show and use those as indicative of all media or political figures. Sarah Sanders directly contradicts what she told the Special Counsel’s office, knowing that her denials will likely work.

There are voices calling for impeachment hearings, notably Senator Warren. But the issues of impeachment are complicated. While many have argued that impeachment is intended for more than just illegal behavior (see Clinton 1998), the phrase “high crimes” has become entrenched in our public discourse. In the absence of crimes in the Mueller report, it’s hard to see where impeachment proceedings would lead.

It is far more important that attention be paid to the moral questions raised by the Mueller report. Congressional hearings on administrative oversight are important, not as a means of scoring political points but as illumining distortions and overreach by the administration. Reporters should be getting politicians on the record on the importance of moral consistency and not on political gamesmanship (kudos to Romney for his meager attempt at this). The question of whether obstruction is acceptable should be asked at town hall meetings (if they happen). The 2020 candidates should be required to address how they will restore norms within a functioning government. And voters must move away from a pragmatic focus on personal preferences to support for a moral president who looks out for the citizenry as a whole and not just political interests.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s