April 29, 2019 10:02AM

The Mueller Report: FAQs

1.  Did Trump collude with Russians who tried to influence the 2016 presidential election?

            No. In Volume 1 of his report, Mueller didn’t mention “collusion,” which is not a legal term.  He did, however, find that there was no evidence of a conspiracy, and he therefore exonerated Trump on that count.  Still, Mueller concluded that the Russians did interfere, Trump was aware of the interference, he benefited from and encouraged the interference – e.g., Don, Jr. was eager to get and use information on Hillary Clinton – and he didn’t report the interference to the FBI.  So, there was no crime and maybe no impeachable offense, but Mueller’s findings will likely inform voters regarding Trump’s fitness for office.

2.  Did Trump obstruct justice by impeding either Comey’s or Mueller’s investigations?

            Maybe.  In Volume 2, Mueller cited numerous acts that could have frustrated both investigations. Trump fired Comey, tried to fire Mueller – but didn’t succeed because White House counsel Don McGahn refused to follow instructions – discouraged testimony, encouraged lying, and dangled (but didn’t actually offer) pardons.  Given the evidence, Mueller concluded that he could not exonerate Trump from an obstruction charge.  Nonetheless, Mueller would not say whether there was an indictable crime because of a written Justice Department policy that a sitting president cannot be indicted.  It would be unfair to charge the president without affording him an opportunity to defend himself at trial.  In other words, there may or may not have been sufficient evidence of a crime or impeachable offense; but there was clearly too much evidence to exonerate.  Mueller left the criminal charge up to Attorney General Barr; and he left impeachment up to Congress.

3.  Since the FBI director serves at the pleasure of the president, could Trump fire Comey at will?

            Yes.  There are no statutory conditions on the president’s authority to remove the FBI director.  He or she serves at the will of the president.  But if the president acts with “corrupt intent” – e.g., to impede an investigation into his own conduct – then he can be charged with obstruction of justice. In this instance, by Trump’s own words, hefired Comey because of “this Russian thing.”  

4.  But can there be corrupt intent if “this Russian thing” was not a crime?

            Yes. It’s not necessary to prove an underlying crime in order to charge someone with obstructing justice. Admittedly, however, it’s more difficult to show corrupt intent if there’s no underlying crime.  After all, how could Trump have obstructed justice related to the conspiracy investigation if there was no conspiracy?  The short answer is that Trump’s motive might have been corrupt even if unrelated to proving his innocence.  For example, he may have wanted to protect personal (e.g., family) interests, or business interests, or his political standing with voters.  Or he may have wanted to frustrate an investigation into someone else’s crime; or to avoid exposure to a gray area of the law, or to non-criminal impeachment.

5.  Trump cooperated with the investigation.  How then could he have obstructed justice?

            On one hand, Trump provided roughly one million documents; he did not invoke executive privilege; and he allowed White House counsel Don McGahn to testify. But, on the other hand, he refused to testify in person, and he provided inadequate answers to Mueller’s written questions.  If time were not of the essence, Mueller would likely have used his subpoena power. Limited cooperation isn’t sufficient to preclude an obstruction charge.  

6.  Mueller’s report, as released, was redacted by Attorney General Barr.  Were the redactions proper?

            Yes. Barr followed the law, which requires that he redact grand jury testimony, classified material, items related to ongoing investigations, and details that could compromise the privacy of innocent persons.  Barr committed to as much transparency as lawful, and it appears that he honored that commitment. Only a few of the redactions were grand jury related; most of the redactions involved ongoing investigations.

7.  Barr, in his summary of Mueller’s report, concluded that the evidence didn’t support a charge of obstruction.  Did Barr overreach?

            Maybe.  The Mueller report presented substantial evidence that might have led to an obstruction charge.  Indeed, Mueller concluded that the scope and nature of the evidence foreclosed exonerating the president.  Yet Mueller declined to charge Trump with obstruction – not for lack of evidence, but because Justice Department policy barred indictment of a sitting president. That left the matter in the hands of Mueller’s boss – initially Acting Attorney General Rosenstein (who first appointed Mueller as special counsel), then Attorney General Barr.  It was Barr’s prerogative either to charge Trump, exonerate him, or say nothing further.  With Rosenstein’s backing, Barr concluded that the evidence was insufficient to charge Trump with obstruction.  Some observers disagreed – probably including Mueller himself, although we don’t know for sure.  Other observers thought the decision was reached in haste.  But it’s clear that the decision was Barr’s to render.

8.  Should the House of Representatives undertake further investigation of Trump’s conduct?

            Yes. As noted, Mueller proffered significant evidence of obstruction by Trump.  It was Barr, but not Mueller, who decided that the evidence was insufficient to charge Trump.  Congress may believe that Barr’s decision was wrong or premature.  But even if Congress were to agree with Barr, the job of the House is not to charge the president with a crime, but to determine if impeachment is warranted.  Impeachment does not require a prosecutable crime. The standard is treason, bribery, or other high crimes and misdemeanors.  The House is empowered to conduct further investigations to determine if that standard has been met.  Given the evidence compiled by Mueller, my sense is that further investigation is justified.

9.  Should Congress be able to subpoena the un-redacted Mueller report?

            Perhaps not the full report, but a less redacted version.  Congress’s and the public’s need to know must be balanced against privacy and secrecy requirements as well as separation-of-powers concerns.  Barr’s redactions were less than anticipated, and mostly related to ongoing investigations.  But some redacted grand jury testimony might yet be unveiled.  One exception to grand jury secrecy is disclosure “preliminary to or in connection with a judicial proceeding.”  If the House opens a preliminary investigation into impeachment, that investigation would likely qualify as a judicial proceeding.  It might also be desirable for a federal judge to review redacted material in private to determine if further disclosures are permissible.

10.  Will Trump be impeached?

            Probably not.  Despite Barr’s denial, Trump may have obstructed justice.  Even if not, he may have committed “high crimes and misdemeanors” that are impeachable offenses.  At the time of the Framing, “misdemeanors” meant misdeeds, not petty crimes as the term is now understood.  Accordingly, a president can probably be impeached for non-criminal behavior that amounts to serious dereliction of duty, abuse of power, or other conduct that demonstrates his unfitness to serve.  That said, impeachment is more of a political process than a legal process.  There are no well-established rules of procedure, rules of evidence, or due process safeguards.  Moreover, the public seems disinclined to impeach President Trump – especially with a Republican-controlled senate and little chance that a conviction, requiring a 2/3 vote, could be secured.  House Democrats may therefore prefer that voters make the final decision regarding the president’s asserted misbehavior.  In other words, let the 2020 ballot box dictate the outcome – unless, of course, further House investigation uncovers additional evidence that is sufficiently compelling to persuade 20 of 53 Republicans to join 45 Democrats and 2 Independents in removing President Trump.

11.  Was the cost of the investigation justified?

            I have no basis on which to determine whether the investigation was efficiently conducted, or whether the special counsel might have fulfilled his mission at lower cost.  Weighed against the cost – now estimated at $30 million – are the direct and indirect results of the investigation.  Dozens of people and three companies were charged, with guilty pleas by five persons.  Indictments were filed against former campaign manager Paul Manafort, deputy campaign chair Rick Gates, foreign policy advisor George Papadopoulos, national security advisor Michael Flynn, advisor Roger Stone, personal attorney Michael Cohen, and others.  Perhaps more important, Mueller documented the depth and breadth of Russian interference in the 2016 election, even as he exculpated President Trump of conspiracy charges.  And Mueller’s report has provided Congress and the American public with extensive evidence related to Trump’s possible obstruction of justice. 

12.  The Mueller investigation was fueled, in part, by the so-called Steele dossier.  Should Mueller have investigated its provenance? Should Congress do so?

            Yes and yes.  The dossier was compiled by former British spy Christopher Steele on behalf of Fusion GPS, an opposition-research firm working for the Hillary Clinton campaign and the Democratic National Committee.  The media obtained the dossier, which relied in significant part on Russian sources, and used it to feed the now-disproved “collusion” narrative that was the primary focus of the Mueller investigation.  The FBI used the dossier to support its application to the Foreign Intelligence Surveillance Court for a secret warrant on one of Trump’s foreign policy advisors, Carter Page. Mueller barely mentioned the dossier in his report, but he refuted and rejected its claims.  Trump supporters may legitimately question whether a special counsel should have been authorized to conduct an extensive and extended probe based on fabricated intelligence that was funded for political motives by the opposition party.  Even if the Mueller report has produced useful information, an inquiry into its origin and rationale seems warranted.