I wanted to wait on writing this editorial until after I had completed reading the full (although redacted) Mueller Report. I am slower than many in getting this done, but I finally completed Volume I (concerning the Russian interference in the election), and have begun Volume II (concerning the obstruction of justice stuff). I will have some thoughts on Volume I in another editorial.
I have not finished reading Volume II yet. In fact, I have only completed the Introduction of it.
However, that’s all I need to be able to declare, with full confidence, that Mueller believes Trump is guilty of obstruction of justice. So, it’s all I need to be able to state, emphatically, that the impeachment hearings need to begin. Not only for President Trump, but also for Attorney General Barr.
I will definitely finish reading the report to get all of the fine details of all of the evidence of obstruction. I have read many excerpts and opinions of others already, so have a general idea of the various instances of obstruction, but still want to read about all of the complete details.
I will probably have more to say upon completion of the full Volume II content, but I believe the Introduction alone is worth focusing an entire editorial on. First, I think it’s important for everyone to read the full introduction, so if you have not done so, I present it here (it’s not that long):
This report is submitted to the Attorney General pursuant to 28 C.F.R. § 600.8(c), which states that, “[a]t the conclusion of the Special Counsel’s work, he … shall provide the Attorney General a confidential report explaining the prosecution or declination decisions [the Special Counsel] reached.”
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. The Order appointing the Special Counsel gave this Office jurisdiction to investigate matters that arose directly from the FBI’s Russia inve stigation, including whether the President had obstructed justice in connection with Russia-related investigations. The Special Counsel’s jurisdiction also covered potentially obstructive acts related to the Special Counsel’s investigation itself. This Volume of our report summarizes our obstruction-of-justice investigation of the President.
We first describe the considerations that guided our obstruction-of-justice investigation, and then provide an overview of this Volume:
First, a traditional prosecution or declination decision entails a binary determination to initiate or decline a prosecution, but we determined not to make a traditional prosecutorial judgment. The Office of Legal Counsel (OLC) has issued an opinion finding that “the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions” in violation of “the constitutional separation of powers.” Given the role of the Special Counsel as an attorney in the Department of Justice and the framework of the Special Counsel regulations, see 28 U.S.C. § 515; 28 C.F.R. § 600.7(a), this Office accepted OLC’s legal conclusion for the purpose of exercising prosecutorial jurisdiction. And apart from OLC’s constitutional view, we recognized that a federal criminal accusation against a sitting President would place burdens on the President’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct.
Second, while the OLC opinion concludes that a sitting President may not be prosecuted, it recognizes that a criminal investigation during the President’s term is permissible. The OLC opinion also recognizes that a President does not have immunity after he leaves office. And if individuals other than the President committed an obstruction offense, they may be prosecuted at this time. Given those considerations, the facts known to us, and the strong public interest in safeguarding the integrity of the criminal justice system, we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.
Third, we considered whether to evaluate the conduct we investigated under the Justice Manual standards governing prosecution and declination decisions, but we determined not to apply an approach that could potentially result in a judgment that the President committed crimes. The threshold step under the Justice Manual standards is to assess whether a person’s conduct “constitutes a federal offense.” U.S. Dep’t of Justice, Justice Manual§ 9-27.220 (2018) (Justice Manual). Fairness concerns counseled against potentially reaching that judgment when no charges can be brought. The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor’s judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.
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. OLC noted similar concerns about sealed indictments. Even if an indictment were sealed during the President’s term, OLC reasoned, “it would be very difficult to preserve [an indictment’s] secrecy,” and if an indictment became public, “[t]he stigma and opprobrium” could imperil the President’s ability to govern.” Although a prosecutor’s internal report would not represent a formal public accusation akin to an indictment, the possibility of the report’s public disclosure and the absence of a neutral adjudicatory forum to review its findings counseled against potentially determining “that the person’s conduct constitutes a federal offense.” Justice Manual § 9-27.220.
Fourth, if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable 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.
What Mueller is saying in this introduction, clearly, is that the only reason he did not make a judgement on whether President Trump committed a crime is because he was working under a system that prevented him, from the start, of actually indicting the President for that crime. And since he could not indict him, it would be unfair to the accused (Trump) for Mueller to definitively state that he committed a crime when the accused could not have his day in court to clear his name.
In other words, Mueller was between a rock and a hard place on this.
Mueller explains that under these limitations, the best he could do is to investigate the issue fully, document all of the evidence the best he could “to preserve the evidence when memories were fresh and documentary materials were available”. What possible reason would he have to say that unless his intent was to preserve it for possible future action against President Trump when he is no longer President and could be indicted, or for possible use by the Legislative Branch in determining if there are impeachable offenses?
Finally, in the last paragraph, Mueller states, “Fourth, if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state.” This statement clearly suggests that Mueller believes he did commit the criminal act of obstruction. He is not saying that he did not have enough evidence to make the conclusion. The way this Introduction is written can leave the rational, intellectually honest reader with only one logical conclusion…that Mueller would have indicted were it not for the ridiculous DOJ policy against indicting a sitting President. And no, Sen. Lee (who is now dead to me, by the way, for this absurd interview), it’s not even a little bit confusing as Mueller clearly states his reasoning for anyone that bothers to read it and attempts to comprehend it (and when Lee was asked if he read it, he said that he had, but then made a lot of dissembling statements that clearly indicated he had not).
And this is where Barr’s impeachable offenses come in:
- He should never have interfered in the release of the Mueller Report in the manner that he did. The very reason for appointing Mueller in the first place was because it was determined that the DOJ could not objectively handle the investigation and judgments required when the investigation involved the President…the very person that the AG, Deputy AG and the entire DOJ answers to. It’s why we have a Special Counsel statute in the first place. So when Barr took it upon himself to “summarize” Mueller’s Report using his own subjective opinions and judgments, he defeated the entire purpose of the Special Counsel and tainted the entire investigation.
- As I have previously stated, if it turns out that Barr’s “summary” misrepresents the actual report in substantial ways, then that is tantamount to obstruction of justice on his own part. It seems to be clear to me that his “summary” indeed misrepresents the actual report.
- In the press conference that Barr should not have held in the first place (for the same reasons identified in number 1 above), he flat out lied to the American people. Specifically, when asked whether the dubious DOJ policy that a sitting President cannot be indicted was a factor in Mueller’s reasoning about not coming to a conclusion on the possible criminality of obstruction by Trump, Barr stated that it was not a factor in Mueller’s decision. That is clearly false as easily shown in the Introduction above.
In a previous editorial, I reluctantly agreed with Pelosi that it was not time to proceed with impeachment proceedings. I agreed that we needed to wait for the Mueller Report to see if he presents more concrete evidence of corrupt or criminal behavior from Trump. It is now very clear that Mueller has presented the goods. Impeachment is imperative. If not for this guy, pray tell what is the impeachment feature in the Constitution for?
Yes, I know the argument that the Republicans in the Senate will not convict Trump so it is seen as a futile effort that could be seen as overreaching by the Dems and, therefore, backfire on them and help get Trump re-elected. I used to be agreeable to that argument, but I no longer am.
I am convinced that the majority of Republicans can’t stand Trump. Yes, he has his loud sycophantic supporters in Congress. And there have been very few who have had any guts and spoken out against him. However, I still think that they would drop him in a heartbeat as soon as they realized he was a serious threat to their own re-election prospects.
When/if the Dems start impeachment proceedings, Trump is going to go off the deep end. I think that is a given. The Republicans do not want the actual facts and evidence against Trump presented in any type of official manner. They know damn well that they would lose in that venue. The only way they’ve been able to maintain any support for Trump is by using demagoguery, conspiracy theories, and his propaganda minions to deceive, deflect, and diminish his wrongdoings. This dynamic would be considerably different in official proceedings where people can go to prison for lying.
The Republicans know all of this. And they know how Trump will act during all of this. And they know it will be a losing shitshow for them. I believe when it comes to that, the Republicans will start to move in the direction of dumping Trump as quickly as possible. He will no longer be able to serve their purpose. I believe it would be likely that they convince him to resign, much like they did with Nixon. I hope he refuses and then becomes the first President to actually be impeached, convicted, removed from office, and indicted. That is the appropriate remedy for Trump. You might think that the Republicans would not actually vote to convict him, and there is good reason to believe that right now. However, I am confident that the craziness that Trump would display during the impeachments proceedings would be so severe that very few Republicans would survive supporting him. They know that.
Let’s get on with it.