Friday, April 26, 2019

Reading Diary Of The Mueller Report by Benjamin Wittes

I'm reading this outstanding article, he calls it a "reading diary", by Benjamin Wittes of the Lawfare Blog. It's outstanding stuff and I hope everyone here will read it as he analyzes each section of the report and interprets what it says (vs. what Barr says it says)
I'm adding some key passages in the comments, but do read it for yourself.

From Volume 1:

The genesis of the FBI investigation was a foreign government's intelligence agency's notification to the FBI that Padadopoulos had informed them that the "Trump Campaign had received indications from the Russian government that it could assist the Campaign through the anonymous release of information damaging to Democratic presidential candidate Hillary Clinton."

"Sorry, Devin Nunes. There's no mention of the Steele dossier."

"But no doubt the Trump folks were also particularly vulnerable to this sort of manipulation. While they weren’t active partners in this scheme, they were suckers."

"If the active measures section of the report is exonerating of Trump and his campaign, the section that follows it—the Russian hacking section—is not. It is much worse than is commonly understood for Trump."

"But here’s the thing: It wasn’t for lack of trying. Indeed, the Mueller report makes clear that Trump personally ordered an attempt to obtain Hillary Clinton’s emails; and people associated with the campaign pursued this believing they were dealing with Russian hackers. Trump also personally engaged in discussions about coordinating public relations strategy around WikiLeaks releases of hacked emails. At least one person associated with the campaign was in touch directly with the Guccifer 2.0 persona of the GRU. And Donald Trump Jr. was directly in touch with WikiLeaks itself—from whom he obtained a password to a hacked database. There are reasons none of these incidents amount to crimes—good reasons, in my view, in most cases, viable judgment calls in others. But the picture it all paints of the president’s conduct is anything but exonerating.

"This was not “no collusion.” It was Keystone Kollusion—and the incompetence of it is likely the reason no crime was committed."

Trump ordered that the "missing" Clinton emails be found and very likely believed that the Russians had them:

"The Trump campaign was seeking exactly the spoon-feeding it was accused of taking; it just couldn’t manage to find the right spoon, and it kept missing when it tried to put any spoons in its mouth."

(I love the way Wittes writes.)

"As the operation progressed, WikiLeaks handled the distribution, and both the campaign and the GRU dealt with WikiLeaks—and thus didn't have to deal directly with one another."

IOW "collusion" by proxy.

"In short, while this section does not describe a Trump campaign conspiracy in the Russian hacks, it does describe direct engagement between the GRU and Stone; it describes both the campaign and the GRU seeking to coordinate with WikiLeaks on the release of information; and it describes the campaign being eager to retrieve what turned out to be fictitious emails and its agents being willing to deal with Russian hackers to get them. The president personally was involved in these latter two episodes, Mueller reports.

It’s a remarkable story, and it's not a flattering one. If nobody ran afoul of the law, the likeliest explanation is the *dumbest of dumb luck.*"

"Russian Government Links to and Contacts with the Trump Campaign"

"This section comprises more than 100 pages—which gives you an idea of how much material there was to investigate regarding Russian contacts and links with the Trump campaign. It’s a he
ck of a read, but it’s a complicated one that tells a confusing story I’ll be working to understand for a long time. Mueller tells it through a legal lens; he’s a prosecutor, after all, looking to answer legal questions. But I found myself reading it through a very different lens—the lens of patriotism."

"So there you are, on the legal side. The evidence arising out of links or contacts isn’t all that close to establishing coordination in the sense that conspiracy law would recognize. But the volume of contacts, the lies and the open questions make it impossible to say that there’s no evidence of it—much less that there’s positive evidence falsifying it."

"what is the story these contacts tell if it’s not one of active coordination? They surely aren’t, in the aggregate, innocent. They aren’t normal business practice for a presidential campaign. When Mueller asks whether they constituted some sort of third avenue for Russian interference, he’s really asking, in the prosecutorial language available to him, what to make of them."

"[H]ere’s what I see in the story Mueller has told over these more-than-a-hundred pages.

"I see a group of people for whom partisan polarization wholly and completely defeated patriotism. I see a group of people so completely convinced that Hillary Cl
inton was the enemy that they were willing to make common cause with an actual adversary power at a time it was attacking their country to defeat her. To me, it matters whether the conduct violated the law only in the pedestrian sense of determining the available remedies for it—and in guiding whether and how we might have to change our laws to prevent such conduct in the future. To me, the salient facts from this section are the following:

* Trump was willing to do business with and seek favors from the Russian state even as it was attacking the country for whose presidency he was running—and he was willing to lie about doing so.

*His campaign’s senior leadership was eager to benefit from that country’s efforts to dish dirt on his opponent and was willing to meet with people it knew to represent that country in order to receive such information.

*Multiple campaign staff and advisers engaged in conduct in relation to that country that legitimately gave rise to counterintelligence scrutiny.

*Multiple campaign staff and advisers lied to investigators about their dealings with Russian officials or intermediaries to such officials in a fashion that gave rise to criminal charges or other actions.

I don’t know the right word for this pattern of conduct. It’s not “collusion,” though it may involve some measure of collusion. It’s not “coordination” or “conspiracy.” But in Clinton, Democrats, and liberals, the Trump campaign saw a sufficiently irreconcilable enemy that it looked at Vladimir Putin and saw a partner. To my mind, anyway, that’s the story Mueller told in this section. It may not be a crime, but it is a very deep betrayal."

Repeating: "But in Clinton, Democrats, and liberals, the Trump campaign saw a sufficiently irreconcilable enemy that it looked at Vladimir Putin and saw a partner."

This constitutes Wittes' notes of Volume I which is basically Russian interference and the Trump campaigns willingness to accept it. Volume II deals with the case of obstruction which I think is so well documented elsewhere as to let me spend my time on more pressing least for the time being. :

OK, I admit it. I can't help myself. Volume II

"Mueller says explicitly that “we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available” "

"It is important to read the second point in the context of the first one. Together they say something like the following: We can’t indict Trump now and are thus deferring to Congress in the short term and creating a record for later prosecutorial assessment when the president leaves office. In other words, Mueller is not declining to make a traditional prosecutorial judgment; he is declining to make a traditional prosecutorial judgment now and leaving that task for someone else to do later."

"By contrast, as a matter of impeachment, this is an easy and overwhelming case—and it’s very simple indeed. The president of the United States, seven days after taking office, demanded loyalty from his FBI director. Shortly thereafter, he isolated Comey in order 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. It is a quintessential abuse of power, and while there may be viable technical defenses against a criminal charge, there simply is no plausible way to understand it as a good-faith exercise of presidential power."

"The point is that the evidence here is mixed, and the president would have a viable defense that he was acting within his lawful power and not to impede the investigation but out of anger that Comey would not clarify its focus publicly with respect to him. If a criminal case were ever to be contemplated against Trump for obstruction, I suspect the Comey firing would not lie at its core but would feature in some broader obstructive pattern of conduct.

"These distinctions may or may not be important as a matter of criminal law. As a matter of impeachment, they are utterly unimportant. I don’t know how anyone can read this section and regard the conduct described in it as meriting any kind of congressional toleration. It describes a frank abuse of power: 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. I believed this was impeachable conduct at the time. The Mueller report reinforces that belief.

"Indeed, while the question of the prudential wisdom of impeachment politically may be a hard one, I don’t think the impeachability of the conduct described in this section is even a close call. This is heartland impeachment material—the sort of conduct the impeachment clauses were written to address. And any member of Congress disinclined to support impeachment needs to grapple with the following question: ***If you take the position, either overtly or by averting your eyes, that this conduct is okay in a president’s relationship with the law enforcement apparatus of the country, what isn’t okay?*** What would a president have to do before you would say that political consequences aside, his conduct is intolerable morally and institutionally unacceptable to me as a member of a coordinate branch of government with ultimate oversight over presidential conduct?"