My Takeaway from the Mueller Testimony

The New York Times and other major media depicted Mueller’s testimony as being a loss for the Democrats.  Nothing new was revealed, no existing facts were heightened or sensationalized.  It was nothing more than a regurgitation of the Report.  Certainly nothing happened that caused any Republicans in Congress to give second thoughts about whether to stand behind Trump.

However, when Mueller was asked in his morning appearance whether he didn’t indict Trump because of the standing Justice Department opinion that a sitting president cannot be indicted, he responded, “That is correct.”  When a Republican representative followed up to clarify, he confirmed what he had just said.

But in his opening statement for his afternoon appearance, he backtracked and said that opinion kept them from even considering whether Trump had committed a crime.  That revised statement was a disappointment for the Democrats.

But wait, something doesn’t make sense.  Mueller did find that there wasn’t sufficient evidence to sustain a charge regarding collusion with the Russians.  So while he couldn’t indict, he could exonerate.  The fact that he didn’t do the same on the obstruction charge leads to the inescapable conclusion that he felt Trump committed obstruction, as he indicated in his morning testimony.  But no one asked that question.

Since it now is clear that the Special Counsel felt he could not determine whether Trump had engaged in an obstruction of justice, but just laid out the facts, it is up to the House to determine whether he engaged in obstruction and thus engaged in an impeachable offense.

What Trump Did and Didn’t Do - The Mueller Report and Beyond

There is no way to get around the fact that the Mueller Report makes very clear that there was no collusion or cooperation with Russia regarding its interference in the election for the purpose of insuring Trump’s election.  Therefore Trump and his campaign did not commit that crime, or at least the evidence was not sufficient to ensure successful prosecution of guilt beyond a reasonable doubt, which is the criminal standard Mueller was using.

With regard to the obstruction charge, I don’t know the fine points of law on this subject, but Mueller was not willing to say what he did regarding the Russia charge … there was no obstruction.  And so he said that the findings do not exonerate Trump.  He just laid out the facts for and against.

But in our system of justice, if you don’t have enough facts to prove a crime, even though it sure looks like it, the person should not be charged, and if he is he will be found not guilty.  Thus from this technical perspective, Barr was correct in his prosecutorial decision.

So Trump and his campaign either did not commit these crimes, or at least could not be successfully prosecuted for them, which we must take as legally the same thing.  Innocent until proven guilty is our system’s maxim.

One more point should be made about Trump not being guilty of a crime.  Many people point out how the report is loaded with examples of Trump lying and forcing others to lie.   But lying is not a crime, unless it’s under oath, and Trump did not lie under oath because Mueller never got to take live testimony from him.  Nor was there sufficient evidence to prove that he forced others to lie under oath, which would be what’s termed “suborning perjury.”

But there is one potential crime that the Mueller report does not seem to have addressed:  accessory after the fact, or aiding and abetting, Russia’s interference in the election.  Certainly Trump and his campaign knew that Russia was interfering in the election.  That was a crime and the Special Counsel has indicted numerous Russian operatives in that regard.

Now, failure to report a crime is generally not a crime itself.  However, if you take action to help conceal the crime, then you become an accessory after the fact which is a crime.  And so the question is, did Trump and/or campaign officials help or conspire to conceal information of Russia’s election interference.  Did they do something beyond not reporting?  That remains for Congress to investigate.

But beyond the Special Counsel’s narrow prosecutorial question, whether there was sufficient evidence to successfully prosecute a crime, that leaves the question whether Trump committed a "high crime or misdemeanor" which is an impeachable offense, or whether he acted in a manner not befitting the office of President.  These are both questions for Congress to assess.

With regards to cooperating with the Russians or obstructing justice, the Report lays out a multitude of facts, which may well meet the lesser standard of proof for an impeachable offense, which is closer to the preponderance of the evidence, was it more likely it happened or not.  Also there is the question of whether he was an accessory after the fact, or aided and abetted.   As for being unfit for office, unfortunately, one cannot impeach a President for being unfit for the office.  Only the public can remove him for that cause by voting him out of office. May the investigations begin.

The Mueller Report and the AG’s Decision

The long-awaited report has arrived and, at least as it’s been summarized by the Attorney General, Democrats are very disappointed.  

Regarding Russia’s interference in the election, Mueller found no collusion or coordination.  Given the information that has been made public over the course of the investigation, this is not a surprise, or should not be.  Knowledge of  Russia’s dirty tricks, and hoping to benefit from the dirt, is not the same as colluding or coordinating.

Regarding obstruction of justice, the Special Council declined to make a “prosecutorial” decision.  He has just presented evidence for and against.  Why he chose to not make a decision is beyond me.  

Without question, Trump acted to obstruct, he had the intent to obstruct, and it pertained to an ongoing proceeding, namely the investigation.  So it would seem that the Attorney General’s three requirements for prosecution were met.  One of course needs evidence to prove all three points, but just from Trump’s own Tweets, one would seem to have sufficient evidence on all three points.  

The fact that the report exonerated Trump and the campaign from collusion with Russia should not in any way impact the obstruction charge.  Perhaps most people would not try to obstruct a proceeding if they knew they were innocent.  But Trump is not most people.  He obviously was obsessed by this investigation.  The mere fact of it roiled him.  So not only should the exoneration on collusion not be determinative regarding the obstruction charge, as the Attorney General said in his letter, it should really have no impact.

As for the Attorney General’s decision to make the decision his and say there wasn’t sufficient evidence, it is unseemly and reeks of politics.  Mueller, after months of deliberation, was very careful to say that while he wasn’t recommending a charge, the report did not exonerate the President regarding obstruction.  

Yet the Attorney General did just that, although actually what he said was that there wasn’t sufficient evidence to charge the President.  Now, insufficient evidence does not mean not guilty.  But for the public, and certainly for Trump’s supporters, that is a distinction without a difference.

Congress and the American people clearly need to see the entire report.