Mueller Report - Section by Section Summary - Volume II

[15yds4gibberish]

The two page introduction to Volume 2 is perhaps the part of the Mueller report that packs the most important material in the smallest space.  This section of the report is difficult to reconcile with Barr’s press conference.

Mueller lists four “considerations that guided our obstruction-of-justice investigation.” 

First Consideration:

Because Mueller is an officer of the Justice Department,

The use of the word “jurisdiction” here is not casual.  Mueller does not say he was ‘guided by’ or ‘influenced by’ the OLC’s opinion, Mueller describes himself as bound by the OLC’s view as a matter of jurisdiction.  In his own view, Mueller lacked the authority to indict the president.  The office declined to make a ‘traditional prosecutorial judgement’ because it was jurisdictionally barred from reaching one of the only two determinations such ‘binary’ judgement can yield.

The report goes on to state, in the very next sentence, two prudential considerations that directly contradict Barr’s denial that Mueller was deferring to Congress:

In summary, Muller makes two things clear: The OLC’s opinion is central to Mueller’s decision not to resolve obstruction matters, and the impeachment process, which Muller references explicitly in a footnote, is the accepted mechanism for evaluating presidential lawlessness.

Second Consideration:

 

Mueller can’t prosecute the president, but he can conduct an investigation, and the President may be indicted after he leaves the office.  Mueller then explicitly says:

It’s important to read the second point in the context of the first. Taken together they same something like the following: We can’t indict Trump now, so we are deferring to Congress in the short term and creating a record for prosecutorial assessment when the president leaves office.  In other words, Muller is not declining to make a prosecutorial judgement; he’s declining to make one now and leaving that task for someone else to do later.

 

Third Consideration:

Here Mueller exercises his principled judgement (whether this judgement is a good one or bad one is a question for another day).  Given that he can’t indict the president,

Driving Mueller’s judgement here were “fairness concerns” about a situation in which a judgement of criminality would not result in a

A judgement that the president had committed crimes, without an accompanying charge, Mueller writes,

In other words, Mueller is saying that given he can’t indict Trump now, so he is deferring to Congress in the short term, and to the judgement of future prosecutors after Trump leaves office, but in the meantime, the Justice Department  should not be pronouncing on the merits of whether the president has committed crimes – allegations against which there is no forum in which to present a defense and wouldn’t be fair to a president so accused.

 

Fourth Consideration:

The fourth point is where Mueller gives the game away (but it is also indicative of how he is duty bound and instead of saying it like it is, he relies on buttoned down and precise legal language to stick to the mission – If by some miracle Mueller turns out to be a dynamic witness it won’t be because of the words he uses, it will  be because he kept his head down, did his job while everyone around him hasn’t, and therefore his words may have weight).  He begins…

While Muller does not allow an evaluation that would inculpate the president, he has no apparent reservation about clearing the president if the facts warrant.    The trouble is, he says, “we are unable to reach that judgement” in the face of ‘difficult issues…’

In short Mueller believes the evidence of presidential obstruction of justice is strong enough, but that would involve precisely the type of traditional prosecution judgement that he believes he cannot render.

Of course, he writes all this before he lays out the detail…

[15yds4gibberish]

Vol 2 Section Summary: Background Legal and Evidentiary Principles

The first half of this section provides some useful background principles on obstruction of justice.  The second half offers a straightforward account of the manner in which the special counsel’s office came to investigate obstruction in connection with the Russia investigation.

The predicate facts for opening an obstruction investigation may be found of page 12 of volume 2.

In this section, Mueller also explains his decision not to subpoena the president’s testimony:

Normally, one might assume the Grand Jury Secrecy redaction was because of a 5^th Amendment claim, but in this case things appear to be more complicated.  “The President did agree to answer written questions” but only about Russia related activities, not obstruction. It’s possible a subpoena was issued, then withdrawn, while negotiations continued.  Mueller describes having concluded that the subpoena process would create “substantial delay” and that

 

Vol 2 Section Summary: Factual Results of the Obstruction Investigation

This section comprises 12 subsections, lettered A-L, each of which details some aspect of the factual findings of the obstruction investigation.  Ten of these subsections, B-K, each detail a potentially obstructive pattern of behavior by Trump.  Subsection A describes campaign – and transition period – “response to reports about Russian Support for Trump.”  And subsection L details some “overarching factual issues” that affect multiple earlier fact patterns.

A note about Muellers methodology here.  Because Mueller does not evaluate the matters he describes in a traditional law enforcement analysis, he never says directly how strong he feels the evidence of criminality is about any of the incidents.  What he does instead is describe the factual findings in detail and then in an “analysis” section address the evidence with reference to three common elements of obstruction statutes:

·         The presence of an obstructive act.

·         Whether there is a nexus to an obstructable proceeding.

·         Whether there is evidence of criminal intent.

One cannot evaluate Mueller’s conclusions because he hasn’t given any.  This leads us to read the evidence he lays out and judge for ourselves along at least two, sometimes diverging, lines of evaluation:  Is it obstruction?  Is it impeachable?

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Vol 2 Section Summary: A – The Campaign’s Response to Reports About Russian Support for Trump

There’s not a lot that’s factually new in this section.  Multiple examples of stuff like this:

…

This section concludes with a theme that appears throughout the report:

 

Vol 2 Section Summary: B – The President’s Conduct Concerning The Investigation of Michael Flynn

In briefest summary, this section describes the following events.  The President of the United States, seven days after taking office, demanded loyalty from his FBI director.  Shortly thereafter he isolated Comey to ask that he drop a sensitive FBI investigation in which he had a personal interest.  He did this knowingly and intending to interfere with the investigation of Russian interference in the election and contacts between his transition team and Russian officials.

When it comes to obstruction, there was no Grand Jury investigating the matter at the time, so it’s hard to argue a nexus to a proceeding.   As a matter of impeachment, however, it is a quintessential abuse of power.  While there may be viable technical defenses against a criminal charge, there just isn’t a plausible way to understand it as a good-faith exercise of power.

 

Vol 2 Section Summary: C – The President’s Reaction to Public Confirmation of the FBI’s Russia Investigation

In this section, Mueller reports that Trump was angered by Session’s recusal in the Russia matter, and infuriated by Comey’s March 20, 2017, testimony acknowledging the Russia investigation and not declaring clearly that the president wasn’t under investigation.  He reports that Trump asked intelligence community leadership to make public statements that the president had done nothing wrong and may have asked Director of National Intelligence, Dan Coats, to intervene to tamp down the Russia probe.  Mueller reports that Trump leaned on Comey to state publicly that he was not personally under investigation.  And he reports that it was in this period that Trump began contemplating Comey’s removal.

Overall, this section doesn’t rise to the level of criminal obstruction.  It also doesn’t rise to the level of impeachable offense – Congress is not going to impeach the president for asking the intelligence community leadership to make favorable public statements or for being mean to the Attorney General.

What this section does is provide context to other sections in the report.

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Vol 2 Section Summary: D – The President’s Reaction to Public Confirmation of the FBI’s Russia Investigation

This section provides the definitive factual account of the Comey firing, about which a great many facts were disputed, and about which the White House ran an active disinformation campaign with little precedent in the modern US history.

The salient facts include these:

·         Trump decided to fire Comey after Comey declined in his May 3 testimony to say the president wasn’t under investigation.  The president became somewhat obsessed with the idea, discussing it with Steve Bannon – saying “the same thing each time – no fewer than eight times over two days.”

·         Trump’s principal goal does not appear to have been to shut down the Russia investigation, but to retaliate against Comey, against whom he was consumed with anger.

·         The original Comey termination letter stresses in the opening sentence that Comey had informed Trump three times “that I am not under investigation concerning the fabricated and politically-motivated allegations of a Trump-Russia relationship.”

·         When Rod Rosenstein wrote his memo supporting the firing on the basis of his handling of the Clinton email investigation, he knew it was a pretext.  Trump asked him explicitly, Mueller writes, to include “the Russia stuff” in the firing memo.  Rosenstein responded that the Russia investigation was not the basis of his recommendation and shouldn’t be mentioned.  The President told Rosenstein he would appreciate it if he put it in his letter anyway.  When Rosenstein left the meeting, he told DOJ colleagues that his own reasons for replacing Comey were not the President’s reasons.

·         The reports that the president boasted about the matter in the Oval Office to the Russian ambassador and foreign minister, saying he had relieved “pressure” on himself with respect to Russia are all true.

As a matter of criminal obstruction, there are a couple of problems.  First, if the president has an Article II defense about anything, surely it is about a core staffing matter like firing the FBI director.  Second, it’s hard to untangle Trumps motives.  There’s definitely an element of wanting to stop the Russia investigation, but the dominant factor appears to have been vindictive anger at Comey.

That said, there is evidence that the president was trying to block the investigation itself.  Rather than cut and paste a long snippet, Mueller summarizes it starting on page 76 of Vol II. 

As a matter of impeachment, this section describes a sustained demand for a wholly self-interested investigative outcome, a willingness to disrupt a critical institution to get that outcome and to retaliate against an official who would not deliver it, a willingness to set the entire apparatus of the White House to lying about the reason for the action, and the recruitment of senior Justice Department officials to create a pretextual paper trail to support it.

This is exactly the sort of conduct the impeachment clauses were written to address.

 

Vol 2 Section Summary: E – The President’s Efforts to Remove the Special Counsel

The basic facts in this section are these:  Trump became fixated on Mueller’s supposed conflicts of interest, despite being informed by staff that they were “ridiculous” and “silly.”  In response to the WaPo’s disclosure that the new office was investigating possible obstruction of justice, he then called McGahn twice at home over a weekend and directed him to have Rosenstein remove Mueller.  McGahn decided to resign rather than carry out the order (“for fear of triggering another Saturday Night Massacre”), but he was ultimately persuaded by Priebus and Bannon not to resign.  The president did not raise the matter again, though he did make “repeated efforts to have McGahn deny the story.”

This section clearly meets all three elements of obstruction.  According to Mueller, the president clearly ordered the firing of Mueller.  The nexus with a pending proceeding is also, by this point in the investigation, not subject to reasonable dispute.  And as to the issue of intent, in contrast to the muddiness of that question in prior episodes, it is crystal clear – There is no other basis for the president’s attempted action other than to stymie the investigation.

[15yds4gibberish]

Vol 2 Section Summary: F – The President’s Efforts to Curtail the Special Counsel Investigation

This is a particularly aggravating section.  The facts are these:

Some important points to highlight here:

·         Corey Lewandowski was not a government employee.  This is not an example of a president exercising his Article II powers to manage the executive branch.

·         Sessions was recused from the Russia probe because he had and actual conflict of interest in the matter.  In other words, the president of the United States recruited a private citizen to procure from the AG of the United States behavior the AG was ethically barred from undertaking.

·         Trump did not merely seek to get Sessions to involve himself in a matter in which he was recused.  Trump wanted the AG to both limit the scope of the investigation (to future crimes!) and to declare it’s outcome on the merits with respect to Trump himself.

Bottom Line: This is an unlawful obstruction of justice.

 

Vol 2 Section Summary: G – The President’s Efforts to Prevent Disclosure of Emails About the June 9, 2016, Meeting Between Russians and Senior Campaign Officials

This section describes gross presidential misconduct, but it seems principally about lying to the public, not obstructing a proceeding.

 

Vol 2 Section Summary: H – The President’s Further Efforts to Have the Attorney General Take Over the Investigations

As a matter of obstruction, this section mostly adds further texture to the episode described in subsection F.

As an abuse of power, Trump was also trying to induce sessions to investigate his political opponents, both publicly and privately. 

This isn’t obstruction of justice, it’s the inverse, the initiation of injustice.  Consider:  The president of the United States was trying to induce the AG of the US to initiate a criminal investigation based on no known criminal predicate against a private citizen he happened to dislike.  This wasn’t rhetoric, and it wasn’t a joke.  If this isn’t unacceptable to Congress, then no member of Congress can say they weren’t warned when some future AG complies with such a presidential request – including to launch an investigation against such a member of Congress.

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Vol 2 Section Summary: I – The President Orders McGahn to Deny That The President Tried to Fire the Special Counsel

 

The facts are pretty straightforward: After the news broke that Trump had sought to get McGahn to have Mueller fired, Trump sought to get McGahn to deny the story.  He also sought to get him to create and internal record denying the story.  McGahn refused.

The attempt to get McGahn to write an internal memo disputing the story is the critical point here.

 

If not for this, the president’s conduct might be defended as a mere effort to lie to the press (as in subsection G).  But one doesn’t order the creation of false internal documents for purposes of denying a published story.

There’s more (including the now infamous ‘why do you take notes? Lawyers don’t take notes.’) but basically this one meets all the criteria for obstruction.

 

 

 

[15yds4gibberish]

Vol 2 Section Summary: J – The President’s Conduct Toward Flynn, Manafort, [Redacted]

Lot’s o redactions in this section – which appear to relate to the Roger Stone prosecution.  But here’s the summary:

This section is about witness tampering.  For brevity, I’m only going to highlight a few things in the report about the presidents conduct toward Manafort and leave the reading about Mike ‘stay strong’ Flynn alone for now.

Basically, the president’s lawyers told Manafort, or at least so Manafort told Gates, that the “president is going to take care of us…”

As Manafort’s trial progressed, Trump publicly flirted with the idea of a pardon and blasted the prosecution.  He praised Manafort’s bravery and refusal to flip.  And he commented on the trial during the jury’s deliberations.

There’s little doubt this series of communications, public and private, were corrupt efforts to influence a witness and a jury.  As Mueller writes:

And

And

 

Notably, Trump got what he wanted.  Manafort did not end up cooperating, so the reality may well be that the president’s obstructive conduct did obstruct the investigation.  The president hinted that Manafort should not ‘flip’ and that he would take care of him.  And Manafort acted in a fashion consistent with his relying on those assurances.   Needless to say, none of this is authorized in any sense by Article II of the Constitution…

For impeachment purposes, the spectacle of the president of the United States publicly and repeatedly urging witnesses not to cooperate with federal law enforcement and entertaining the notion of using his Article II powers to relieve them of criminal jeopardy or consequences if they don’t cooperate… is a grotesque abuse of power.

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Vol 2 Section Summary: K – The President’s Conduct Involving Michael Cohen

 

The president’s interactions with Michael Cohen are similar to his conduct toward Manafort, save that they are more extensive and because Cohen reached a cooperation deal with prosecutors, they also took on a vindictive and threatening tone later on.  Another difference in Cohen’s case, unlike in Manafort’s, Trump was to some degree involved in the underlying conduct. 

Trump was aware that Cohen in preparing his statements to Congress was keeping to the “party line” on the Trump Tower Moscow negotiations – Which is to say lying.  While Trump did not, in Mueller’s account, play any direct role in coaxing Cohen to lie, Trump’s personal lawyer did remind Cohen that he was protected under the Joint Defense Agreement and would not be if he “went rogue” and that the president loved him and had his back if he “stayed on message.”   The president’s counsel also helped edit the false statement.  Over 10 days of drafting, “phone records reflect that Cohen spoke with the President’s personal counsel almost daily.”  Later, the president’s counsel later “told him that the president was pleased with [his] statement that had gone out.”   But, as Mueller puts it, “the evidence available to us does not establish that the president directed or aided Cohen’s false testimony.”

After the search warrants were executed against Cohen, the president called him, encouraged him to “hang in there” and “stay strong.”  The report also describes a number of back channel communications  about how the president loved Cohen and had his back, during this period.

And then, Cohen reached his deal and everything changed.  At that point, the president began publicly suggesting that Cohen’s family member had committed crimes and urging a tough sentence for him.

It is hard to escape the view that this was a sustained effort first to encourage a witness not to cooperate and then to retaliate against him for reaching a plea deal.  As Mueller puts it, with characteristic understatement:

 

[15yds4gibberish]

Vol 2 Section Summary:   Overarching Factual Issues

This section is short, and is a good one to read, summarizing much of what appears above.  This is where Mueller makes the point to not look at points in isolation but in terms of an overall potentially obstructive pattern (aka read the damn report).  I’ll only highlight a couple of points that are new here.

For those of you who’ve written, and for those who are meme-ing at me again today, that there can’t be obstruction if there isn’t an underlying crime, I’ll let Mueller speak to that point.  I’ve cut and pasted the whole paragraph, but only highlighted the end because it addresses very specifically what has always been wrong with that argument:

Mueller then goes on to provide some of the reasons for obstruction even though they “did not establish” an underlying crime:

The other interesting global observation Mueller makes in this section is when he describes “two distinct phases” of presidential behavior, reflecting “a possible shift in the president’s motives.”

 

Vol 2 Section Summary: Legal Defenses To The Application of Obstruction-Of-Justice Statues To The President

The final section of new stuff in the Mueller report is an analysis of the obstruction statues in relation to Article II of the Constitution in response to arguments submitted to the office by the president’s lawyers.  I am not going to try to summarize all the legalism here, instead I’ll let Mueller provide his summary of it, highlighting the last, very important, sentence:

In this country, no one is above the law, not even the president.

END OF VOLUME II

 

[World Citizen]

@15yds4gibberish Excellent job on this.  Mueller is extremely precise in his language and there is much reading between the lines to fully appreciate his report. 

While I am not surprised, I am disappointed and disgusted by the lack of intellectual honesty by the usual suspects on here.  This is fundamental to our democracy and it is a shame that we as citizens can't become united in opposition.  

 

[I AM IRONMAN]

Tell that to Obama and Hillary!

[World Citizen]

5 minutes ago, I AM IRONMAN said:

Tell that to Obama and Hillary!

Tell what to Obama and Hillary?  If you can, try to speak in complete sentences, and most importantly, have a point.

[zulu1128]

[NotBigdaddybloom]

Once again I’ll reiterate the obvious .., except for hypocritical assholes!

[NotBigdaddybloom]

The treasonous pricks that started this coup deserves prison time! 

[thc6795]

We got him...this time. 

I dont know who said but when President Trump is re-elected I too hope he loses the pop vote by 10 million. Just so I can read about you bitches heads exploding. 

#2020isalock

[I AM IRONMAN]

3 hours ago, World Citizen said:

Tell what to Obama and Hillary?  If you can, try to speak in complete sentences, and most importantly, have a point.

Wow...I thought you were smarter then that but it appears you are just another sheep in the heard. SMDH.

#wakeup

[maxchoboian]

7 minutes ago, I AM IRONMAN said:

Wow...I thought you were smarter then that but it appears you are just another sheep in the heard. SMDH.

#wakeup

THAN that...it's smarter than that.

[Cat_Scratch]

I read a lot of the report when it first came out. I admit I never finished reading it because I did not see anything that was going to hang anyone. Maybe I should try rereading it the mind of a Democrat.