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.