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Mueller Report Is Sobering Recounting Of Foreign Election Interference And Presidential Conduct: What Comes Next Is (Mostly) Politics – Analysis

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By George W. Croner*

(FPRI) — Last Thursday (April 18), the Attorney General held a news conference to commemorate his release of a redacted version of the “Report On The Investigation Into Russian Interference In The 2016 Presidential Election” (the “Mueller Report” or the “Report”).[1] The release followed the Attorney General’s summary of that same Report supplied to Congress on March 24, 2019, and had pundits, journalists, and a huge swath of the American public quivering with anticipation. As expected, certain matters in the Report had been excised by Department of Justice (DoJ) reviewers for the announced reasons of (1) protecting intelligence sources and methods, (2) protecting ongoing investigative inquiries, (3) protecting privileged grand jury information, and (4) protecting personal privacy. Nonetheless, what remains provides plenty of fodder for the debate that continues to dominate political dialogue and reporting across the country.

The Report consists of two “Volumes”: the first “describes the factual results of the Special Counsel’s investigation of Russia’s interference in the 2016 presidential election and its interactions with the Trump Campaign;” Volume II “addresses the President’s reactions toward the FBI’s investigation into Russia’s interference in the 2016 presidential election and related matters, and his actions towards the Special Counsel’s investigation.” The Report reflects the outcome of a massive investigative undertaking where more than 2,800 subpoenas were issued, nearly 500 search-and-seizure orders were executed, almost 50 pen registers were authorized, and approximately 500 witnesses were interviewed, including almost 80 before a grand jury.[2]

No Surprise: The Russians Interfered in the 2016 Presidential Election to Help Elect Donald Trump

In Volume I of the Report, Special Counsel Robert Mueller states, “The Russian government interfered in the 2016 presidential election in sweeping and systematic fashion.” That isn’t breaking news to those who have read the Intelligence Community Assessment (“ICA”) Assessing Russian Activities and Intentions in Recent U.S. Elections[3] issued by the Director of National Intelligence in January 2017. Notwithstanding indicting multiple Russian operatives who allegedly participated in the Russian government’s interference efforts, for millions of Americans, the cynosure of the Mueller Report isn’t about what the Russians did—it’s what Mueller says was done by the President of the United States or those acting on his behalf.

Before addressing that topic, however, some comment on Mueller’s sweeping Russian indictments is appropriate. On July 13, 2018, the Special Counsel indicted 12 Russian operatives for their role in the hacking of the Democratic National Committee, the Democratic Congressional Campaign Committee and the Clinton campaign, and for their leaking of hacked emails and documents. This followed an earlier indictment in February 2017 of 13 Russians and three Russian businesses for conspiring to defraud the United States and interfering with the 2016 presidential election. Realistically, it is unlikely that any of these Russian “defendants” will ever see the inside of an American courtroom. Thus, the wisdom of these indictments, at least measured from the precedent it sets as a “legal” stratagem for dealing with hostile foreign intelligence actions, could prove troublesome if adapted by other nations to respond to the efforts of American intelligence operatives perceived to “interfere” with internal matters. As The New York Times noted when Mueller’s February 2017 “Russian” indictment was first publicly announced, the CIA, for years, “[w]orked covertly to influence political outcomes abroad” including extensive measures undertaken to promote the virtues and benefits of liberty while encouraging oppressed peoples to stand up against tyrants.[4] If the precedent has now been set that such intrusive cyber measures, at the discretion of the aggrieved “target,” are to be resolved through that “target’s” legal system, as opposed to diplomatic or counterintelligence alternatives, the effect on U.S. intelligence operations and those who conduct those activities could prove problematic.[5]

Unfortunately, there is relatively little to be publicly heard about these potentially adverse consequences attendant to Mueller’s decision to indict state-sponsored Russian actors when there is virtually no likelihood that those indicted will ever stand trial. These are counterintelligence and cyber forensics concerns in which the public and, unfortunately, the candidate and other members of the Trump Campaign, always have shown only marginal interest.

These more tangential matters aside, on the overall issue of Russian interference in the 2016 presidential election, Volume I of the Report unambiguously concludes, “Russia interfered in the 2016 presidential election principally through two operations.” The first of these interference efforts was a social media campaign that favored Trump and disparaged Hillary Clinton; the second, conducted by a “Russian intelligence service,” executed computer-intrusion operations against persons working on the Clinton Campaign and then released stolen documents.

The Report is exhaustive in its detailing of both the Russian “active measures” social media campaign and Russian computer-intrusion activities. The Report acknowledges that the social media campaign coincided with Russian “outreach” efforts directed to the Trump Campaign in a “series of contacts” that included the now well-documented meeting held at Trump Tower on June 9, 2016, when a Russian lawyer met with Jared Kushner, Donald Trump, Jr., and Paul Manafort to deliver what an email described as “official documents and information that would incriminate Hillary.”[6] Through at least June 2016, as the Report notes, these outreach efforts coincided with the Trump Organization’s pursuit of a Trump Tower Moscow project.

In addition to this “active measures” social media campaign, beginning in March 2016, units of the Russian Federation’s Main Intelligence Directorate of the General Staff (GRU) hacked the computers and email accounts of the Clinton Campaign and, starting in April 2016, the GRU hacked the Democratic Congressional Campaign Committee and the Democratic National Committee (DNC). In total, the Report says that the GRU stole hundreds of thousands of documents from the compromised email accounts and networks. To expand its interference in the 2016 presidential election, facilitate dissemination, and insulate its role, the GRU transferred many of these stolen documents to WikiLeaks, which already had expressed its opposition to the Clinton Campaign. According to Rick Gates, longtime business associate of Paul Manafort and Manafort’s deputy during the time Manafort was serving as manager for the Trump Campaign, by the late summer of 2016, the Trump Campaign was planning a press strategy, communications campaign, and messaging based on the possible release of Clinton emails by WikiLeaks.

WikiLeaks’ activities proved particularly helpful in the aftermath of the October 7, 2016, public release of the notorious Access Hollywood videotape in which candidate Trump is heard speaking in graphically derogatory terms about women. The tape was released two days before the second 2016 presidential debate but, less than an hour after the video’s publication, WikiLeaks released the first batch of emails stolen by the GRU from the account of Clinton Campaign chairman John Podesta.

Interestingly, the Report’s section addressing “Trump Campaign and the Dissemination of Hacked Materials” constitutes some of the most heavily redacted parts of the Report – and the redactions are justified on the grounds of representing “Harm to Ongoing Matter.” Not redacted, however, is the reporting that the Special Counsel’s work identified multiple contacts between Trump Campaign officials and individuals with ties to the Russian government. According to the Report, these contacts were investigated as a possible “third avenue” of attempted Russian interference with or influence on the 2016 presidential election with particular focus on examining whether these contacts “resulted in coordination or conspiracy with the Trump Campaign and Russia, including with respect to Russia providing assistance to the Trump Campaign in exchange for any sort of favorable treatment in the future.” The conclusion: “[b]ased on the available information, the investigation did not establish such coordination.”

In sum, Volume I of the Report concludes: “The investigation established multiple links between Trump Campaign officials and individuals tied to the Russian government.” Ultimately, however, “the investigation did not establish that the Campaign coordinated or conspired with the Russian government in its election-interference activities.”

Given these acknowledged “multiple links” and the copiously documented contacts between Trump Campaign members and Russians executing the election interference efforts that the Report describes as “sweeping and systematic,” the conclusion that there was no “coordination” seems curiously flaccid. The Report does say that it addressed “the factual question [of] whether members of the Trump campaign ‘coordinat[ed]’—a term that appears in the [Special Counsel] appointment order—with Russian election interference activities.” Like collusion, “coordination” does not have a settled definition in federal criminal law. Thus, the Special Counsel determined to use an approach that required “an agreement—tacit or express—between the Trump Campaign and the Russian government on election interference.” According to the Special Counsel, such an “agreement” “requires more than the two parties taking actions that were informed by or responsive to the other’s actions or interests.”

This legalistic construct has struck many as an overly cautious interpretive matrix to use in evaluating whether an American presidential candidate’s obvious benefitting from hacking and other cyber activities of a foreign adversary was “coordinated” or coincidental. For one thing, the apparent decision to arbitrarily limit the inferences that can generally properly be drawn from one party engaging in conduct “informed by or responsive to the conduct of another” unnecessarily favors a legalistic view of relevance over the more logical interpretation given to such activity in day-to-day life. To most individuals, at some point, persistent parallel conduct coupled with “multiple links” between the participants increasingly suggests that the conduct is coordinated—not coincidentally parallel. For those, and there are many, who draw such a conclusion from the details revealed in the Report, that conclusion is not incorrect—and, logically, may be more supportable than the determination made by the Special Counsel. Consequently, given the scope of the contacts recounted in the Report between Trump Campaign personnel and Russians, and the broad spectrum of Russian cyber activities undertaken with the specific purpose of aiding Trump and harming his opponent, it is not surprising that many are confounded by the Special Counsel’s inability, or refusal, to render a conclusion on what is publicly perceived as having been the raison d’être of the inquiry.

But Mueller clearly and, arguably properly given that his was a tasking set by the Attorney General pursuant to DoJ regulations, calibrated the parameters of his decision-making to reflect the prosecutorial approach taken in DoJ’s Justice Manual.[7] The “Standards for Federal Prosecution” expressed in the “Comment” to § 9-27.220 of the Justice Manual, for example, set the standard for deciding whether to initiate a prosecution as follows:

Evidence sufficient to sustain a conviction is required under Rule 29(a) of the Federal Rules of Criminal Procedure to avoid a judgment of acquittal. Moreover, both as a matter of fundamental fairness and in the interest of the efficient administration of justice, no prosecution should be initiated against any person unless the attorney for the government believes that the admissible evidence is sufficient to obtain and sustain a guilty verdict by an unbiased trier of fact.[8]

Of course, in the federal criminal justice system, obtaining a guilty verdict requires proof beyond a reasonable doubt—a cornerstone of American criminal jurisprudence but, truthfully, not the standard employed by most people in making the more routine decisions of their daily lives. Critics will continue to insist that such a standard is unwarrantedly generous to the current occupant of the Oval Office and members of the Trump Campaign where, at least in their eyes, the salient question is not whether a sustainable criminal prosecution exists but whether an American presidential candidate and his supporters “coordinated” or “colluded”— read colloquially, not in the parsed way Mueller concluded was required by principles of federal law—with the Russians to win the 2016 presidential election.

These differing interpretive prisms produce even more conflicted viewpoints on the issue that is the subject of Volume II of the Report—the obstruction-of-justice investigation of the President.

More of a Surprise: Mueller Does Not Conclude that the President Committed a Crime, But Also Does Not Exonerate Him

As with Volume I, I do not attempt here to dissect the entire 180+ pages of facts and discussion in Volume II that ultimately reach the ambivalent, but not necessarily ambiguous, statement that the Special Counsel could neither conclude that the President committed a crime, nor exonerate him. By most media accounts, Mueller’s reticence caught both William Barr and Deputy Attorney General Rod Rosenstein by surprise because both anticipated that Mueller would reach a conclusion. As we now know, the Attorney General rushed to fill the void by announcing that he and Rosenstein had concluded that “the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.”

Ironically, Barr insists that his determination was guided by the same principles of federal prosecution that Mueller had so meticulously examined in describing the charging decisions reached in connection with Volume I of his Report. Barr has not elaborated on the critical insights that persuaded him that he could exonerate the President when Mueller specifically stated that he could not; that, in fact, if the Special Counsel “had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state.” Mueller did not so state, but the Attorney General has now done so.

Notwithstanding Barr’s eagerness to render a final prosecutorial judgment, from an evidentiary perspective, the Report certainly furnishes the timber necessary to construct an obstruction of justice charge, and it seems likely that the Special Counsel would have had little difficulty so concluding were the target of his inquiries not the President. The Report reflects the Special Counsel’s determination that: “[t]he President’s efforts to influence the investigation were mostly unsuccessful but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests.” So, it appears, the investigation uncovered that the President’s efforts to interfere were neutralized by the embarrassing disobedience of his closest staff, which had the effect of superseding his own worst instincts. Nonetheless, viewing the President’s pattern of conduct as a whole, the Report finds that there were “multiple acts by the President that were capable of exerting undue influence over law enforcement investigations, including the Russian-interference and obstruction investigations.”[9] These included (1) the fallout from Michael Flynn’s discussions with Sergei Kislyak which prompted Trump’s now infamous requests of James Comey for “loyalty,” for his assistance to “lift the cloud” of the Russia investigation, and his request to Comey to “let this Flynn thing go;” (2) Trump’s firing of Comey and the claim that the reason was a recommendation received from Rod Rosenstein when, as Mueller reports, the evidence supports that Comey was fired because of his refusal to state publicly that Trump was not personally under investigation; (3) the President’s role in the false characterization of the June 9, 2016 Trump Tower meeting; (4) Trump’s efforts to have former White House Counsel Don McGahn engineer the removal of the Special Counsel from office; and (5) Trump’s subsequent efforts to have McGahn lie about those efforts to have Mueller removed. The foregoing represent only a sampling of the evidence compiled in the Report, but they suffice to validate the Special Counsel’s unwillingness to exonerate the President from any charge of obstructing justice.[10]

“Compiled” seems to be an apt verb, in this instance, since the Special Counsel takes care to note that his Office “conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.” Such preservation, of course, would be unnecessary had Mueller concluded that the evidence absolved the President of any wrongdoing. The Report is somewhat opaque, probably deliberately, on the subject of what can or should be done with the Special Counsel’s findings. Mueller’s surprising reticence to make a definitive statement on criminal conduct by the President stems, at least in good part, from the now famous (or infamous) 2000 opinion from the Department of Justice’s (DoJ) Office of Legal Counsel (OLC) concluding that a sitting President cannot be indicted.[11] Operating as an attorney within the Department of Justice subject to DoJ regulations, the Special Counsel felt obliged to forego a “traditional prosecutorial judgment” on the facts he had developed as they related to the President because, in his view, (1) the OLC Opinion precluded any indictment of the President and (2) accordingly, “fairness” militated against expressing any judgment that the President had committed crimes when no charges could be brought.[12]

These considerations did not, however, keep the Special Counsel from noting—in perhaps the most freighted twin statements found in the Report—that: “If we had confidence 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 legal standards, however, we are unable to reach that judgment.”

As noted earlier, Barr rushed to preemptively supply that judgment, but his efforts accomplished little more than further tarnishing his own credibility. Nonetheless, while one can argue with Barr’s judgment and legal analytics in reaching his substantive conclusion, there is no legitimate basis for objecting to his authority to make it. The Attorney General is the nation’s chief law enforcement officer. He or she appoints special counsels and determines the scope of their investigation under regulations confirming the Attorney General’s overall authority over special counsel activities.[13] Since Congress declined to renew the provisions of the “Independent Counsel”[14] statute in 1999, the scope of the “special counsel” position has been defined by those DoJ regulations with ultimate authority clearly committed to the Attorney General.

What Happens Now

While the dozen unidentified referrals listed in Appendix D of the Report suggest the possibility of further investigative and prosecutorial activity related to matters initially uncovered by the Special Counsel, Barr’s pronouncement likely signals that the obstruction of justice inquiry directed at the President of the United States will no longer be pursued by the executive branch of the government.

Debate over possible impeachment proceedings in the Congress was a well-reported media topic even before Mueller issued his Report; but, Mueller’s conclusion that he could not clearly state that the President had not obstructed justice and, therefore, that the Report did “not exonerate him” was chum in the water for impeachment advocates. The Report makes specific reference to impeachment in a well-publicized footnote (#1091) found near the end of Volume II’s discussion that rejects the view that the President enjoys absolute constitutional immunity to engage in acts that would corruptly obstruct justice through the exercise of otherwise-valid Article II powers. The impeachment reference arises in the context of the Special Counsel observing that impeachment does not serve as a suitable substitute for criminal prosecution once a President leaves office—a possibility recognized by the same OLC Opinion that precludes indicting a sitting President.  According to Mueller, the Impeachment Judgment Clause in the Constitution recognizes that criminal law plays an independent role in addressing an official’s conduct distinct from the remedy of impeachment. According to Mueller, “Impeachment is also a drastic and rarely invoked remedy, and Congress is not restricted to relying only on impeachment rather than making criminal law applicable to a former President.”

Impeachment is also, as Mueller acknowledges, a “political” remedy. As such, it inevitably reflects political calculations and considerations. At least unofficially, the most recent presidential impeachments of Nixon and Clinton suggest that one of those considerations is the presence of a “smoking gun.”[15] Prudence would suggest that a similar “smoking gun” be unearthed before House Democrats seriously consider pursuing articles of impeachment, especially given that only such a “smoking gun” would present any possibility of securing sufficient Republican support for a conviction in the Senate. Clinton’s example of a highly partisan House impeachment effort embarrassingly squelched in the Senate should offer an object lesson to the more zealous advocates demanding immediate impeachment proceedings.

Thus, the President may well avoid impeachment, and the likelihood of his conviction in the Senate, at least for now, is even more remote. However, there is nothing—literally nothing—in the Mueller Report that supports the President’s claim of “exoneration.” The Report directly refutes that claim. It discusses the possibility of both impeachment and potential criminal prosecution after the President leaves office; indeed, the Report acknowledges that one benefit of the thorough investigation conducted by the Special Counsel is the preservation of evidence while memories are fresh and documents available. The Special Counsel concedes that existing DoJ policy that forecloses indicting a sitting President precluded his making a “traditional” prosecutorial decision, but that, if the investigation had demonstrated that the President clearly did not commit an obstruction of justice, he would have so stated. The Special Counsel did not feel that the facts allowed him “to reach that judgment.” No matter what dictionary one consults, this is not how “exoneration” is defined.

Given the fevered expectations developed over the nearly two years that Mueller exhaustingly spent pursuing his assigned task, it was inevitable that, in failing to deliver a definitive conclusion on the President’s conduct, his Report might be viewed by many as falling short of expectations. But Mueller’s mandate was distorted by those expectations. The Special Counsel was assigned to “conduct the investigation confirmed by then-FBI Director James Comey in testimony before the House Permanent Select Committee on Intelligence.” The investigation referenced by Comey was a counterintelligence investigation (which explains its disclosure in testimony before the House Intelligence Committee) into Russian interference in the 2016 presidential election. Mueller’s inquiry did a commendable job of publicly revealing the size and scope of that Russian interference effort and, in conjunction with the Intelligence Community Assessment issued in January 2017, provides a framework for analyzing what can and must be done by way of counterintelligence and cybersecurity initiatives to prevent a similar intrusion into the next presidential election. The focus on the President’s conduct is understandable; but, if that fixation ends up obscuring the counterintelligence aspects of what the Mueller Report reveals about those Russian activities, we will have squandered a precious opportunity to address this serious danger to our democratic institutions—a danger that, in the long run, is more threatening to the nation than the actions of any one President.

*About the author: George W. Croner, a Senior Fellow at FPRI, previously served as principal litigation counsel in the Office of General Counsel at the National Security Agency. He is also a retired director and shareholder of the law firm of Kohn, Swift & Graf, P.C., where he remains Of Counsel, and is a member of the Association of Former Intelligence Officers.

Source: This article was published by FPRI


[1] Report On The Investigation Into Russian Interference In The 2016 Presidential Election, Special Counsel Robert S. Mueller, March 2019.

[2] Appendix D of the Report furnishes the prosecutorial results of this investigative undertaking. Mueller’s Office initiated 14 different criminal proceedings that are now in various stages (post-indictment to final adjudication) in the federal criminal justice system (including the Russian indictments that are unlikely to result in any final adjudication). His Office also generated 14 criminal referrals now being processed by other U.S. Attorney’s Offices—only two of which (Michael Cohen and Gregory Craig) have been publicly identified. 

[3] Assessing Russian Activities and Intentions in Recent U.S. Elections (UNCLAS) (the “ICA”), January 6, 2017. Available at https://www.dni.gov/files/documents/ICA_2017_01.pdf. I discuss the ICA at greater length in Fact and Denial: Trump’s Inexplicable Refutation of the U.S. Intelligence Community’s Conclusion of Russian Election Interference, FPRI E-Notes, July 18, 2018, found at https://www.fpri.org/article/2018/07/fact-and-denial-trumps-inexplicable-refutation-of-the-u-s-intelligence-communitys-conclusion-of-russian-election-interference/.

[4] See, e.g., Andrew McCarthy, Russia Launches “Information” War, U.S. Responds with Lawsuit and Self-Destruction, National Review, February 17, 2018

[5] Id.; See, also, Jack Goldsmith, The Downsides of Mueller’s Indictment, Lawfare, February 19, 2018. This is not to say that the Justice Department’s efforts to deter those involved in foreign cyber intrusions through a “name and shame” strategy that imposes costs on the culprits is completely toothless or misguided. But, at least insofar as the Russian 2016 election hacking is concerned, the intrusion is state-sponsored and an indictment is virtually certain to have no effect on such Russian activities. Moreover, to the extent the public disclosures in these indictments afford the Russians any insight into those American intelligence and forensic capabilities that have supplied convincing attribution of such activity to the Russians, Russian intelligence operatives will certainly seek to adapt to, or otherwise counter, those capabilities.

[6] As noted in the Report, the Trump representatives were “expecting to receive derogatory information about Hillary Clinton from the Russian government.”

[7] Department of Justice, Justice Manual (2018).

[8] Justice Manual, § 9-27.220, Comment.

[9] As one who writes frequently on foreign intelligence matters, it was especially discouraging to read the finding that the President reached out to both the Director of National Intelligence and the Director of the National Security Agency on separate occasions in March 2017 to seek their cooperation in suggesting that the Russian investigation was interfering with his ability to conduct foreign affairs and to rebut contentions that he had links with Russia. Those with a memory of the discussion heard on the “smoking gun” Watergate tape (the June 23, 1972 conversation) will recall that the substance was a conversation between Nixon and Haldeman about having the CIA direct the FBI to back off its investigation into the Watergate burglary for “national security” reasons. As George Santayana memorably observed: “those who do not remember the past are condemned to repeat it.”

[10] Whether that reluctance also stems from the fact that the Report documents 14 separate prosecutorial referrals that remain outstanding (only two of which have been publicly identified) remains to be revealed by future events.

[11] A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. 222 (2000 OLC Op.).

[12] As expressed by the Special Counsel: “The concerns about the fairness of such a determination would be heightened in the case of a sitting President where a federal prosecutor’s accusation of a crime, even in an internal report, could carry consequences that extend beyond the realm of criminal justice.”

[13] See, generally, 28 C.F.R. Part 600 General Powers of Special Counsel and, particularly, 28 C.F.R. § 600.4 (Jurisdiction): “The jurisdiction of a Special Counsel shall be established by the Attorney General.”

[14] Whether a congressional effort to recreate a position substantively equivalent to the old “Independent Counsel” would continue to survive constitutional muster is a matter of debate. While the Supreme Court upheld the constitutionality of the original “Independent Counsel” statute in its 1988 decision in Morrison v. Olson, 487 U.S. 754 (1988), it is unclear whether the constitutional reasoning of the Morrison court would be applied today to uphold a similarly configured statute.

[15] History identifies the June 23, 1972 “obstruction” conversation with Haldeman as Nixon’s “smoking gun;” for Clinton, it was the infamous “stained” blue dress.

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Published by the Foreign Policy Research Institute

Published by the Foreign Policy Research Institute

Founded in 1955, FPRI (http://www.fpri.org/) is a 501(c)(3) non-profit organization devoted to bringing the insights of scholarship to bear on the development of policies that advance U.S. national interests and seeks to add perspective to events by fitting them into the larger historical and cultural context of international politics.

One thought on “Mueller Report Is Sobering Recounting Of Foreign Election Interference And Presidential Conduct: What Comes Next Is (Mostly) Politics – Analysis

  • Avatar
    April 25, 2019 at 10:50 am
    Permalink

    Knee deep in BS.Mueller Report was a distraction.
    and an insane waste of money

    Reply

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