It’s Mueller Report Day! Part One: Barr Press Conference

Ken AshfordL'Affaire Russe, Trump & AdministrationLeave a Comment

I suggest lowering expectations for the Mueller Report. I expect it to show evidence — evidence — of Trump’s obstruction, but since his motivation is an element that must be proven for an obstruction conviction, and since his motivation rests only in his head (or can at best be inferred, but not proved beyond a reasonable doubt), the report will likely conclude that an obstruction charge would be hard to prosecute. We already knew that.

Politically, of course, it will be damaging, but again, no new revelations. At the end, it will be fodder for impeachment talks, but in the end, nothing will come of it.

To the extent there is anything to look for, here are the questions:

Trump on obstruction and conspiracy

  • Did Mueller consider Trump’s enthusiastic encouragement of Russia’s operation and his move to offer Russia sanctions relief from a prosecutorial standpoint (that is, a quid pro quo trading the Trump Tower deal and election assistance for sanctions relief)? If so, what were the considerations about potential criminality of it, including considerations of presidential power? If not, was any part of this referred?
  • What was the consideration on Trump and obstruction? Did Mueller intend to leave this decision to Congress? [The report will not answer the second question; if Mueller did intend to leave the decision to Congress, as his predecessors Leon Jaworski and Ken Starr did for good Constitutional reasons, he will not have said so in the report.]

Paul Manafort on quid pro quo

  • Was Mueller able to determine why Manafort shared polling data with Konstantin Kilimnik on August 2, 2016? Did he know it would be shared with Russians close to the election interference operation? Did he agree to a quid pro quo involving the Ukrainian peace deal as sanctions relief he pursued for another 20 months? Did Manafort’s lies prevent Mueller from answering these questions?
  • What was the nature of and what was ultimately done with that polling data?
  • Why didn’t Mueller charge this as conspiracy or coordination? Did it have to do with Manafort’s lies and Gates’ limited credibility?

The June 9 meeting and follow-up

  • What consideration did prosecutors give to charging this as an instance of conspiracy or coordination?
  • What consideration did prosecutors give to charging the public claims about this meeting as an instance of false statements?
  • Did Trump know about this meeting and if so did that change the calculus (because of presidential equities) on a quid pro quo?
  • Did Mueller decide Don Jr is simply too stupid to enter into a conspiracy?
  • Did Mueller consider (and is DOJ still pursuing) prosecutions of some of the members of the Russian side of this meeting? [Note that Barr did not clear all US persons of conspiracy on the hack-and-leak; Emin Agalarov canceled his concert tour this year because his lawyer said he’d be detained, SDNY’s indictment of Natalia Veselnitskaya treats her as a Russian agent, and Rinat Akhmetshin and Ike Kaveladze may both have exposure that the Trump flunkies would not.]

The Seychelles meeting and related graft

  • Did Mueller decide the graft he uncovered was not criminal, not prosecutable, or did he refer it?

It is 9:30 a.m. now and Congress is expected to get the report at 11:00. News reports are saying that the White House has seen the report, or at least discussed it with DOJ officials.

AG Barr is about to give a press conference. This came as a late night surprise to reporters. He is expected to talk about the process of redaction.

Trump is plugging it.

… not to mention…

The Trump WH staff hope to make Mueller Report news a “slow burn” that will blow over by “next week,” (after the Holiday weekend). And they may well succeed. Certainly the rollout is being down to Trump’s benefit.

Barr is now speaking. My notes —

  • “no collusion” by Trump campaign or any American
  • Russia clearly tried to affect elections
  • Barr says he and Rosenstein ‘disagreed with some of the special counsel’s legal theories.’
  • On obstruction, the report recounts ten episodes involving the President and discusses potential legal theories for connecting these actions to elements of an obstruction offense
  • He says evidence shows non-obstructive intent, but this seems to be HIS conclusion
  • He says President Trump’s personal lawyer was allowed to read Mueller’s redacted report before release.

Please note this: Barr is confirming an extensive Russian effort to sabotage our democracy that Trump himself largely still refuses to acknowledge happened at all, for corrupt purposes. But he is doing HUGE pre-spinning.

Barr argues Trump didn’t do anything to prevent Robert Mueller from finishing his investigation, and contends that his actions can be explained by sincere frustration and anger that the probe was undermining his presidency. THAT’S NOT A DEFENSE!

And now Trump…

Embedded in Barr remarks is an important qualifier: Trump campaign collusion with WikiLeaks could not be an illegal conspiracy because WL publication of the emails was not a crime since WL didn’t help hack them.— Charlie Savage (@charlie_savage) April 18, 2019

Barr’s repeated use of the term “no collusion” only shows he is in the pocket of Trump.

Indulge me while I put on a lawyer hat. If I heard AG Barr correctly, he said that Trump could not be held liable for obstruction of justice because he acted (i.e., fired Comey) out of frustration and anger about an investigation which Trump honestly believed was brought for political purposes by his political enemies. In doing so, Barr has made a classic law school student mistake (although lawyers and even judges sometimes make this mistake too). Barr is conflating “intent” with “motivation”
To prosecute for obstruction of justice, intent must be proven. Although the word “intent” is often used synonymously with “motivation”, they are not the same thing. “Motivation” alludes to the ulterior cause, that induces a person to do a particular act. “Intent” refers to a purposeful action and a conscious decision to perform an act, that is forbidden by law.
Take a shoplifting case where Jane Doe walks off with mascara in her purse without paying for it. Her motivation may be obvious: she wanted the mascara. But wanting the mascara is not illegal. It’s her intent that matters. She could have wanted the mascara, but absent-mindedly put it in her purse, INTENDING to pay for it at the counter. That would make her innocent of shoplifting. On the other hand, if she put it in her purse INTENDING to hide it so she could leave without paying, that is a criminal intent.
Barr seems to be saying that Trump’s motivation (to end an investigation that was dogging him) is a defense. I am happy to agree Trump’s MOTIVATION may have been “legal” or reasonable, just as it is legal and reasonable to “want mascara”. But it is the INTENT that matters. And Trump’s firing of Comey was, it seems, INTENDED to cut off an investigation. (The fact that it failed to do so is also irrelevant). Barr actually seems to agree (without saying so) that the intent was to end the investigation, which leads me to suspect that Mueller concluded the same thing.

f an investigation. (The fact that it failed to do so is also irrelevant).