Friday afternoon we learned that Special Counsel Robert Mueller had delivered his final report to Attorney General William Barr. Yesterday, the public got to see Barr’s interpretation of the report, marking the official end of the Special Counsel’s 24 month review.
To recap, Mueller was appointed to review three issues — whether Russia interfered with the 2016 election, if anyone in the Trump campaign acted in coordination with that attempt to interfere with the election, and if the President obstructed justice with regard to either of the first two points.
The answer to the first question is clearly “yes”. As Mueller made clear in the major indictments out of his office, the Russians intentionally disrupted the 2016 campaign by stoking anti-Clinton and pro-Trump sentiment on social media. Russian actors also hacked into the DNC servers and worked to disseminate the results to the broader public in order to weaken Clinton.
The answer to the second question is “no” but has to be qualified. Because the coordination was to be specifically about the attempts to influence the election (as opposed to other avenues of coordination), there was insufficient evidence that the Trump campaign intended for the Russians to engage in election meddling. This is not to suggest that the campaign was morally upright: they seemed eager to take advantage of whatever the Russians had learned through their independent initiatives. As many commentators have noted, the Trump campaign never once contacted authorities to express concern about Russian outreach. But crimes of omission are notoriously difficult to address. One has to demonstrate a willful negligence, being fully aware of the harm that would result. That’s not to say that the Trump campaign/administration wasn’t attempting to coordinate. The efforts at backchannels and shifting stories about Trump Tower Moscow (or New York) suggest a willingness to take advantage of a Russian relationship, but not in ways that violate the law even if they violate operational norms.
Which brings us to obstruction. We all heard the president make his quip about Russia and the 30,000 e-mails. We also heard the interview with Lester Holt and the reference to “the Russia thing.” Why don’t those rise to the level of prosecution?
Barr’s letter quotes Mueller that the evidence on obstruction neither accuses the president nor exonerates him. I would suggest that this also is due to the challenge of intent. To prove obstruction in court, one would have to demonstrate that the president acted in particular ways that he knew would disrupt the ongoing investigation into the election interference.
Here is where I think Mueller ran into a wall. First, since 2016 Trump has been unwilling to accept the intelligence community’s conclusion that Russia interfered. Furthermore, the president’s twitter feed provides a shotgun effort to minimize anyone involved in the investigation with false claims of Deep State actors and insurance policies and illegal investigations (which he has repeated in the last 24 hours while claiming he trusts the results.) The big problem in demonstrating intent is that Trump has a long record (well established by journalists like Daniel Dale) of saying whatever he needs to say at the moment.
It appears that the guiding principle of the president is to protect his legitimacy and denounce his critics. But his comments, as we have seen, do not hold to measures of logical consistency. They are purely tactical statements based on his need to maintain image. So one day he can say that he fired Comey because of the Clinton investigation and the next day he can say it was because of Russia and the next he can say it’s because the FBI had lost confidence. It becomes impossible to draw a straight line between any one of these comments and subsequent actions.
This is all remarkably depressing because it worked. The president’s willingness to say whatever he needs to say without the shame he should feel for lying to the press and the public winds up undermining any legal attempt to hold him accountable for the messages he shares.
As Michael Cohen testified to the Oversight Committee, this “flexibility” makes the demonstration of intent challenging, if not impossible. If he didn’t mean what he said on any given occasion, there is no intent to obstruct.