Thursday, May 30, 2019

Mueller on Mueller - we are left wanting more than 'does not exonerate him'

A little over a month ago, Friday, April 19, 2019, I posted [The founding fathers designed impeachment for a man without virtue][impeach]. In that post I presented the text of the report’s conclusion from the Mueller report, p. 182 of volume 2.

Because we determined not to make a traditional prosecutorial judgement, we did not draw ultimate conclusions about the President’s conduct. The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgement. At the same time, 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, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

With that in mind, here is the Full Transcript of Mueller’s Statement on Russia Investigation from the New York Times. I’ve added bold face emphasis and footnotes (in italics like this: [1]).

ROBERT S. MUELLER III, the special counsel: Good morning, everyone, and thank you for being here. Two years ago, the acting attorney general asked me to serve as special counsel and he created the special counsel’s office. The appointment order directed the office to investigate Russian interference in the 2016 presidential election. This included investigating any links or coordination between the Russian government and individuals associated with the Trump campaign.

Now, I have not spoken publicly during our investigation. I am speaking out today because our investigation is complete. The attorney general has made the report on our investigation largely public. We are formally closing the special counsel’s office, and as well, I’m resigning from the Department of Justice to return to private life. I’ll make a few remarks about the results of our work. But beyond these few remarks, it is important that the office’s written work speak for itself. Let me begin where the appointment order begins, and that is interference in the 2016 presidential election.

As alleged by the grand jury in an indictment, Russian intelligence officers who are part of the Russian military, launched a concerted attack on our political system. The indictment alleges that they used sophisticated cybertechniques to hack into computers and networks used by the Clinton campaign. They stole private information and then released that information through fake online identities and through the organization WikiLeaks.

The releases were designed and timed to interfere with our election and to damage a presidential candidate. And at the same time, as the grand jury alleged in a separate indictment, a private Russian entity engaged in a social media operation, where Russian citizens posed as Americans in order to influence an election. These indictments contain allegations, and we are not commenting on the guilt or the innocence of any specific defendant. Every defendant is presumed innocent unless and until proven guilty.

The indictments allege, and the other activities in our report describe, efforts to interfere in our political system. They needed to be investigated and understood. And that is among the reasons why the Department of Justice established our office. That is also a reason we investigated efforts to obstruct the investigation. The matters we investigated were of paramount importance. It was critical for us to obtain full and accurate information from every person we questioned. When a subject of an investigation obstructs that investigation or lies to investigators, it strikes at the core of their government’s effort to find the truth and hold wrongdoers accountable.

Let me say a word about the report. The report has two parts, addressing the two main issues we were asked to investigate. The first volume of the report details numerous efforts emanating from Russia to influence the election. This volume includes a discussion of the Trump campaign’s response to this activity, as well as our conclusion that there was insufficient evidence to charge a broader conspiracy. And in the second volume, the report describes the results and analysis of our obstruction of justice investigation involving the president.

The order appointing me special counsel authorized us to investigate actions that could obstruct the investigation. We conducted that investigation, and we kept the office of the acting attorney general apprised of the progress of our work. And as set forth in the report, after that investigation, if we had had confidence that the president clearly did not commit a crime, we would have said so. [1] We did not, however, make a determination as to whether the president did commit a crime.

The introduction to the Volume II of our report explains that decision. It explains that under longstanding department policy, a president cannot be charged with a federal crime while he is in office. That is unconstitutional. Even if the charge is kept under seal and hidden from public view, that, too, is prohibited. A special counsel’s office is part of the Department of Justice, and by regulation, it was bound by that department policy. Charging the president with a crime was therefore not an option we could consider. The department’s written opinion explaining the policy makes several important points that further informed our handling of the obstruction investigation. Those points are summarized in our report, and I will describe two of them for you.

First, the opinion explicitly permits the investigation of a sitting president, because it is important to preserve evidence while memories are fresh and documents available. Among other things, that evidence could be used if there were co-conspirators who could be charged now.

And second, the opinion says that the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing. And beyond department policy, we were guided by principles of fairness. It would be unfair to potentially — it would be unfair to potentially accuse somebody of a crime when there can be no court resolution of the actual charge. [2]

So that was Justice Department policy. Those were the principles under which we operated. And from them, we concluded that we would not [3] reach a determination one way or the other about whether the president committed a crime. That is the office’s final position, and we will not comment on any other conclusions or hypotheticals about the president. We conducted an independent criminal investigation and reported the results to the attorney general, as required by department regulations.

The attorney general then concluded that it was appropriate to provide our report to Congress and to the American people. At one point in time, I requested that certain portions of the report be released and the attorney general preferred to make — preferred to make the entire report public all at once and we appreciate that the attorney general made the report largely public. And I certainly do not question the attorney general’s good faith in that decision.

Now, I hope and expect this to be the only time that I will speak to you in this manner. I am making that decision myself. No one has told me whether I can or should testify or speak further about this matter. There has been discussion about an appearance before Congress. Any testimony from this office would not go beyond our report. It contains our findings and analysis and the reasons for the decisions we made. We chose those words carefully, and the work speaks for itself. [4] And the report is my testimony. I would not provide information beyond that which is already public in any appearance before Congress. In addition, access to our underlying work product is being decided in a process that does not involve our office.

So beyond what I’ve said here today and what is contained in our written work, I do not believe it is appropriate for me to speak further about the investigation or to comment on the actions of the Justice Department or Congress. And it’s for that reason I will not be taking questions today, as well.

Now, before I step away, I want to thank the attorneys, the F.B.I. agents, the analysts, the professional staff who helped us conduct this investigation in a fair and independent manner. These individuals who spent nearly two years with the special counsel’s office were of the highest integrity. And I will close by reiterating the central allegation of our indictments, that there were multiple, systematic efforts to interfere in our election. And that allegation deserves the attention of every American. Thank you. Thank you for being here today.

Now I think that statement (Volume II, p. 182), in its various forms, is pretty clear: “it does not exonerate him”. It is an opening to the Congressional investigations now underway as possible preludes to impeachment. But there is another view and that is that Mueller pulled up short. The logical contortion in that same statement muddies the message that it would take to bring the populace to fully support impeachment.

That’s the view of NY Times Gail Collins in Robert Mueller: Warrior or Wimp. (h/t Sherry Moreau)

If Mueller’s speech had been accompanied by Real English subtitles, they’d have said something like: “Look, the guy obstructed justice, but you can’t charge a president with a crime while he’s in office. You’re gonna have to impeach him first.”

But there was no helpful translation. So you know what happened.

“The case is closed! Thank you,” tweeted the president, who magically interpreted Mueller’s statement as saying that “there was insufficient evidence and therefore, in our Country, a person is innocent.”

The biggest message Mueller wanted to leave with the American public was a very loud howl about Russia’s attempts to undermine the American democratic system by hacking into the Clinton campaign computers and releasing private information that it stole there.

And it succeeded. A foreign power helped to throw the election to the candidate its leaders liked. It was exactly the sort of disaster the founding fathers would have pictured if their worst nightmares featured computers. …

Mueller ended by saying “Thank you for being here today.” For any member of Congress who has an ounce of self respect and even a smidgeon of a sense of responsibility to the Constitution, “being here” is not enough. Every day that Trump and his toadies do not honor the Congressional subpoenas is another day of obstruction of justice. Every day is another day in which we wake, after fitful sleep, to discover the answer to our question “what next?”

[1] “if we had had confidence that the president clearly did not commit a crime, we would have said so.” This is a succinct version of the quote I began with from Volume 2 of the Mueller report.
[2] In the preceding two paragraphs, I think, Mueller is referring to investigation of the President by Congress and impeachment as the alternative to criminal charges.
[3] Mueller could have said “could not” but he instead said “would, would not”. This is a man who chooses his words carefully. “could not” implies that the Mueller team had constraining information indicating Trump’s innocence. “would not” implies that the team may have had incriminating evidence and chose not to bring charges. Notice also that listening to Mueller this Wednesday morning indicated that he said “would, would not”, the repetition apparently a device of emphasis.
[4] Letting “the work speaks for itself” brings us back to the explanation in Volume 2 of Mueller’s report. “… 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, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.


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