Adam Davidson of The New Yorker writes, “The one thing that is clear is that any declared theory about what Mueller is up to and when he’s going to be up to it is inaccurate.” I suppose that is correct.
I don’t want to be inaccurate, so I won’t predict what Robert Mueller will do or when he will do it. I do feel comfortable saying a bit about what I think he should do and what I think the media are getting wrong.
The number one error people are making is not understanding that the Office of Special Counsel has been tasked with investigating what the Russians did in the 2016 election and that everything else is secondary to that. There are other nations that may have played a role in helping Donald Trump get elected. It appears that Israel, Saudi Arabia and the United Arab Emirates also played roles. I’m sure China was not entirely passive, although I’ve seen no signs that they had a preference about who would win. In any case, this has been primarily a counterintelligence investigation from the beginning, and under ordinary circumstances we do not get to see the results of counterintelligence investigations.
Robert Mueller has indicted 37 people on 199 different counts, but throwing people in prison wasn’t the point of appointing a special counsel. The Russians who were indicted were brought up on charges because they messed with our election, but bringing them to justice was and is less important than learning what they did. The rest of the people who have been charged have run into problems less because they’ve committed crimes than because they did not want to cooperate. Some of them have been charged with perjury or obstruction of justice, others have been nailed for committing frauds of one type or another. But these crimes were charged foremost as a means of pressuring them to help investigators learn what they actually want to know.
A counterintelligence investigation is meant to protect the country, and sometimes the best way to do that is to prosecute some folks. But we really need the Office of Special Counsel to do three things:
1. Uncover all the ways foreign powers (especially Russia) intervened and interfered in our election, and what help they may have had from Americans, including from people working on or with the Trump campaign.
2. Discover who may have been recruited or compromised by a foreign power (especially the Russians) and whether or not they are currently in a position to harm or undermine American national security.
3. Provide this information to people in government in a position to act on it.
Now, I think Donald Trump is a scoundrel who attracts other scoundrels like a magnet, so I’m pleased that people like Paul Manafort and Roger Stone are probably going to spend many years in prison. But the goal here is to protect the country.
By learning what foreign powers did to influence our election, we can hopefully better defend our future elections and avoid having a situation where a significant number of people don’t accept the results or respect the legitimacy of the process. If the people don’t buy into a representative system, that’s a recipe for civil unrest and puts us at risk for tyrannical and undemocratic governance. So, protecting our elections’ integrity is a key part of Mueller’s job.
If there are people in positions of power and influence who are compromised or worse by a foreign country, then we need to root them out. That’s what was done with Trump’s first national security adviser, Michael Flynn, and that’s the kind of task that counterintelligence investigations are supposed to accomplish.
In an ordinary case, a recommendation would be made to deny someone a job or security clearance. If they already have a job, as was the case with Flynn, then a recommendation will be made that the person be removed from that position. And in an ordinary administration, that advice would be heeded.
But this is not an ordinary case. In our present scenario, the FBI decided that the person who may be compromised (or worse) is the president of the United States. As Franklin Foer writes in The Atlantic, “A nation is waiting, with no clear sense of timing or resolution, to learn whether its leader is a foreign agent of a hostile power.”
The answer to that question may ultimately be qualified. Intelligence assessments are made with degrees of certainty, but rarely with certitude. What is glaringly, obviously adequate to deny someone a security clearance may not be enough to prosecute them as a traitor or spy. What we need to know is all the ways the president and members of his family and administration may be vulnerable to foreign influence or even blackmail.
It will be up to the only governmental entity with the power to protect the country against a rogue executive branch to do something with the information that Robert Mueller has accumulated. Maybe they will find it urgent to remove the president from office, and maybe they won’t. But the report from Mueller should not be a simple explanation of who he charged with crimes and who he declined to charge with crimes. That kind of report would be appropriate in a criminal investigation where all normal Department of Justice policies and protocols are followed. In that case, you don’t provide negative information about people who will not be charged and you redact names to protect the innocent. Grand jury testimony is guarded against disclosure, etc.
It looks like Attorney General William Barr wants to provide that limited kind of report to Congress, and he has some justification for that decision based on how the Office of Special Counsel law was written. But that is not what the country needs right now. It’s not what the country expects. It won’t help Congress protect our elections or decide whether or not to impeach the president or force the resignation of members of his administration.
Mueller’s report should include, first and foremost, a detailed account of everything he’s learned about foreign interference in the 2016 election, along with some guidance about how to protect against future efforts.
In addition, it should provide a counterintelligence assessment of the president’s vulnerability to foreign influence. There should be a classified version of this that is available to anyone in Congress who is willing to view it in a secure location and pledge not to reveal sensitive information that could compromise sources and methods. A declassified version should be made available to Congress and the public.
Only once these key elements are provided should we get to a discussion of what crimes the president (and others) may have committed that fall under the purview of the Office of Special Counsel. If the president conspired with WikiLeaks to disseminate stolen property, that’s one kind of crime. If he conspired with the Russians to coordinate the release of that stolen information, that’s another kind of crime. If he suborned perjury, tampered with witnesses, floated pardons, obstructed justice, lied under oath, and committed corrupt acts, those are still other kinds of crimes.
His crimes could warrant removal from office, but they’re of secondary importance. As a counterintelligence matter, we need to know if Donald Trump is a foreign agent of a hostile power. Even if he’s not, we need to know if he’s so compromised and subject to Russian blackmail that he cannot consistently act independently of Russia.
In other words, the Mueller Report should answer the key questions. If it doesn’t because attorney general William Barr says it doesn’t have to, then Mueller should provide the information directly to Congress by whatever means he deems necessary and adequate. Maybe he can do this by having his team testify to Congress, but that will only work if they are free to share their investigatory materials. If he must, Mueller should simply leak the report and dare anyone to punish him for it.
So, I cannot predict what will happen or when, but I can say confidently that the media are making things more difficult and precarious by not getting this story right. It is not about whether Trump committed crimes. It’s about protecting our elections and national security, and it’s about determining whether the president is able to act in the best interests of the country or if he’s basically captured by Vladimir Putin.
The media should be pressuring William Barr to abandon his position that the report can be treated as the kind of Department of Justice document normally produced at the conclusion of a criminal investigation. This is not a criminal investigation and never has been. From the beginning, the Office of Special Counsel took over a preexisting counterintelligence investigation of the president. The conclusions from that investigation are what we need to see.
It’s very obvious that Trump will want to only release the parts of the report that he deems favorable to him “No collusion!” And bury all the rest under executive privilege. So, once again we’ll be arguing this in the S.Ct. in front of justices who were picked by GOP Presidents so that they would make exactly these type of decisions – to defer to any Republican president over any issue of abuse of power.
He’s very likely to get away with any executive privilege challenge. But, hiding the evidence will only convince anybody who’s not a dire hard Trumpite that he’s covering up damaging evidence.
If he keeps things covered up he forces people to imagine what he might be covering up. And People’s imagination will be worse than whatever boring reality is. They try and imagine, “what could be so bad that he’s willing to go to this length to cover it up?”
. . . evidence that one of the two major parties in this country (hint: the one whose actions and agenda consign it to permanent minority status in a functional democracy) is engaged in a massive operation to corrupt elections and subvert democracy that rivals or surpasses anything the Russians may have managed to pull off.
thank you BooMan.
This is the real stuff, that no one else is telling us completely or correctly anywhere.
I do not trust Bob Mueller, a lifelong Republican, to hamstring Republicans when they are on the verge of taking the Supreme Court for generations. His report is likely to go out of its way not to put Trump in harms way. I hope I’m wrong, but James Comey was a Republican and look how that turned out for us. Oh, and Mueller is very close to Barr, the new AG.
Democrats (and especially Democratic Presidents(!)) should not trust Republicans to do the right thing under ANY circumstances. No Democratic President (if it ever happens again) should ever nominate a Republican for any position!
Other than insurance coverage for those with pre-existing conditions (which is huge), Obama’s legacy is Donald Trump due to his asinine nomination of James Comey as FBI Director. Thanks, bipartisan Obama! (Oh, but, he’s so cool, right?)
>> No Democratic President (if it ever happens again) should ever nominate a Republican for any position!
A-Fucking-Men!
re Comey: others have said that firing Comey may turn out to have been Trump’s biggest mistake; if so it’s an appropriate bookend to the man’s career, since appointing Comey was Obama’s biggest mistake.
I hope the House Democrats will get Mueller to testify, and that they can design their questions to focus inter alia on what he says he is not allowed to disclose.
As for the government entity with the power to protect the country from a rogue executive, the thing is, as others have observed, a number of them have already long known about shit way worse than what we know about, and what have they done / are they doing with that knowledge?
It’s the election integrity stuff in particular that has me (and apparently some others here) really concerned. I’m waiting for Coats’s response to the Senate committee’s follow-up to Heinrich’s question in that recent hearing, a follow-up that
BarrBurr (North Carolina in the news lately?) seems to have slow-walked. That’s his job.Aren’t these two things exactly the same thing?
Nope.
Exactly. The first is active; the second is passive. I think he is a blackmailed asset. He’s too stupid to be an “agent”.
I believe the former would be knowingly and the latter unwittingly. My bet is on knowingly and dimwittedly.
Right, And the latter would more properly be called an “asset” rather than an “agent.” But the distinction is a factual matter. Booman is right, but either way, it’s a danger to the country.
The point is, I think, that Mueller’s job is to provide the facts, but he is not going to make specific recommendations regarding the remedies. That’s the role of the courts (criminal) and the House of R. (political).
Let’s face it, at this point it should be pretty obvious that the Republicans are trying their hardest to break our political system and a report from Mueller probably isn’t going to make them change their minds.
Our government was designed so that congress and the courts would check the executive. The rules that have been put in place were not really designed to for a time when you have a party before country block in all three branches, but that is what we pretty much have now. We will have to see, but it is a very real possibility that there is nothing Robert Mueller can write that will get enough Republican Senators to convict Trump of anything and if you have court challenges you also now have a solid 4 and a mostly solid fifth vote to uphold Republican power, and by default, Donald Trump. The bottom line is that it is becoming more and more apparent that Republican voters, let alone most elected Republicans, couldn’t care less if Russia helped get Trump elected. What they care most about was that he did get elected and that they maintain a hold on the presidency.
My feeling is that if you can’t get enough votes in the Senate to maintain sanctions on Oleg Deripaska, you most likely won’t get enough votes to convict Trump if he got impeached unless something totally outrageous surfaces. I don’t know exactly what happens after a Trump impeachment and then a failure to convict in the Senate, but I’m guessing it won’t be good.
And the other, quite real, possibility is that the report will be a dud that incriminates only the losers like Manafort that have been already charged. That is not to say that Democrats shouldn’t be doing everything in their power to make the report as public as possible- it is most likely not going to reflect well on Trump, and at least the house needs to rise to the occasion. But I have great fear that the cancer caused by the Republican party on our democracy might be terminal.
Here are my two concerns:
DOJ policy says a sitting president can’t be indicted.
DOJ policy says a special report should not name people who are not indicted.
Therefore, I think it’s likely that the Mueller report won’t name Trump, which will allow him and his mouthbreathers to claim he’s been vindicated. I think we’re putting too much stock in Mueller – we should be looking to the House instead.
Realistically, given what Booman says about this being a counterintelligence investigation (primarily), th Democratic HOR’s role really should primarily focus on the many high crimes and misdemeanors that Trump has committed since being inaugurated because that can be public. The COINTEL stuff can’t. And so will have little effect on defeating Trumpism.
The Counterintelligence Investigation originated within the FBI, then after Comey’s firing, McCabe added Trump to the investigation and the question of Trump’s obstruction melded with the questions around national security. Then the DoJ under Rosenstein, in consultation with the FBI, wrote the Special Counsel tasking document and brought on board Mueller to carry out an investigation.
The FBI counterintel investigation and all its tentacles was folded into the SC purview and task. But my question would be when the counterintl investigation was brought under the SC umbrella did it become larger by definition where it no longer was completely dictated by FBI policies of how to handle a counterintel investigation and thus was overridden by SC directives? They may be one and the same, but we don’t see counterintel investigations that are directed to produce a semi public work product in the same manner as the SC at its conclusion.
What’s my point? Well, I wonder if Dir. Wray has been read in and if he is what his report of going forward to protect the country would look like. And what will we hear from Dan Coates?
This is some good stuff, BooMan. I think it’s too easy to get caught up in hoping Mueller will come to the rescue and magically set the stage for impeachment. That might be due in part to confusing what a Special Counsel does as opposed to a Special Prosecutor. Mueller is very good at what he does and he colors inside the lines (so he’ll never leak the report). I’ve read a couple others give this same framing re: this is a counter-intelligence operation. The report might be a road map for impeachment, but keeping the eyes on the prize: preventing this from happening again, is the ultimate goal.
Re the media getting it wrong: how is that a surprise to anyone? They get most things wrong, especially when there’s profit to be made from willfully getting it wrong. They will be the last to know.
I doubt I really understand the frame of counter intelligence. And I don’t know how one proves it. Seems to me there has been a conspiracy going on. I recall there was the offer to alleviate the Obama sanctions, so hang in the Vladimir until we take over, and keep our Moscow Hotel on the fires, and before then – in June – there was the meeting in the tower allegedly about adoptions that turned out to be either the Magnitsky Act or Hillary dirt, take your pick. Oh wait, you do this for me, I can help with your Hillary dirt and maybe even help you beat her in the general. You know we got some super hackers here and we just loves us your Facebook and we can fake up rallies and all, but we need some relief on those sanctions and your man should help us in Ukraine. Deripaska here needs help too.
Those secret meetings came to a head in Finland and no one knows what was said. And then there is the Trump Tower Moscow. Yeah we can help with that too but…. So maybe Trump is an asset of Vlad but he also conspires with him. Mueller should be able to nail him on those things and SDNY should get him on his Foundation and his company. Shit this man is a walking conspiracy with Russia and anyone else who can line his pockets. If this were Hillary or Obama they would be in jail. Now that’s what I want from Mueller. That Manafort sentencing memo and Stone indictment just doesn’t cut it Bob. I mean Roger has a pretty good friend in England living in the embassy. Check it out. Sorry Bob. Try harder.
At the moment this thing seems to be going the wrong way.