What happened aboard Air Force One in the early morning hours of October 8, 2018? What was said and what deal was brokered between President Donald Trump, Deputy Attorney General Rod Rosenstein, and White House Chief of Staff John Kelly that day? If we knew the answer to that question, the things that are happening now might make much more sense. Will the public release of the Mueller Report answer that question?
With the Mueller Report being delivered to the Department of Justice this past Friday, it marks “the end of the beginning” of investigation and public insight into understanding Russia’s efforts to interfere with America’s election process and the criminal and unethical acts of Donald Trump and those close to him.
As we await the disclosure of findings from the report, two key questions are prominent:
1) Why was this phase of the investigation, as conducted under Special Counsel Mueller, ended now when clearly so many of the cases which Mueller was investigating are still open and ongoing?
2) What is covered in the report that will be made public, and what won’t be covered and/or made public:
Let’s address #1 first, because it is important in understanding the answer to #2.
Mueller and all his attorneys and investigators deserve our thanks for nearly two years of thankless hard work. They are patriots. Whatever they have concluded, and whether we agree with their conclusions or not, and whether we ever see everything they found, they deserve thanks. pic.twitter.com/TevDx8IgHh
— Seth Abramson (@SethAbramson) March 23, 2019
The Mueller Investigation has clearly been terminated long before the matters which it was tasked to investigate are concluded. This was the most complex investigation, by more than an order of magnitude, ever undertaken by a Special Counsel or Independent Counsel, and it has concluded quite rapidly (674 days) compared to the Starr Report (1,693 days) and the Iran-Contral Investigation (2,420 days). The big question is WHY? On the surface, the situation is quite perplexing for the following reasons:
1A) There are many legal and counter-intelligence cases handled by the Special Counsel’s office which have not yet concluded, and which could potentially yield additional evidence of criminality;
1B) There are known cooperating witnesses who were not charged or were given reduced charges because of the information which they gave to the Special Counsel, yet no charges have yet been brought related to the information gathered in those matters;
1C) There are many matters for which clear and convincing evidence of criminal conduct is already in the public domain but for which no charges have yet been brought; and
1D) There are known key witnesses (including POTUS) who have not yet even been interviewed by the Special Counsel and the Grand Jury.
It is assumed (but not yet verified) that the remaining open matters, along with matters already referred out, will be picked up by other entities, such as the FBI, CIA, Congress, the Department of Justice and its various field offices, the New York City District Attorney, and the New York Attorney General.
There are a number of possible reasons why the Mueller investigation might have ended prematurely, some reasonable, some nefarious:
• It is possible that personal issues caused Mueller to need to leave the investigation, and it was decided to end the Special Counsel probe and transfer the cases to other entities rather than appoint a new Special Counsel.
• It is possible that Mueller and the Department of Justice came to a mutual determination that it was in the best public interest to inform the public and Congress, NOW, of some results while continuing remaining ongoing investigations through other entities. With the 2020 election cycle starting up, the importance of giving information to the public and Congress now may have outweighed other considerations. (This explanation may well be what will be initially offered to the public. Whether it is the truth or not will only be known over time and through Congressional investigation.)
• It is possible that Acting Attorney General Whitaker and/or Attorney General Barr have acted in an inappropriate way to bring the investigation to a premature end in an effort to obstruct justice on behalf of Donald Trump (recall that Barr’s “job application” for the Attorney General position essentially consisted of a dubiously reasoned treatise on why there was no grounds to investigate the President). It should be mentioned that based on information known to date, both Deputy Attorney General Rod Rosenstein and Special Counsel Robert Mueller have acted with ethics and integrity in pursuit of justice in this matter. If justice has been obstructed by those above them in the chain of command, we should expect to learn of it when these individuals are interviewed by Congress.
• Last October it seemed that Trump was on the verge of firing Rosenstein and attempting to end the Special Counsel probe. It is possible that Rod Rosenstein and Donald Trump reached an implicit or explicit “understanding” to allow the Special Counsel investigation to continue for a short time further. What might that understanding look like? Well, there are many possible scenarios, but one might perhaps be something along the lines of deciding that Trump would not fire Rosenstein and would not take other actions to terminate the Special Counsel probe provided that Rosenstein agreed to the ending of the Special Counsel’s probe and his leaving the DOJ upon Trump’s dismissal of Jeff Sessions, and Trump’s subsequent appointment and Senate approval of a new Attorney General — one whom Rosenstein had reason to believe would act ethically (and, perhaps, Trump had reason to believe would not). It is possible that the “understanding” included assurances that criminal charges would not be filed by the Special Counsel against members of Trump’s family in the interim. Of course, such a discussion would have been highly inappropriate and would have constituted obstruction of justice by Trump… yet, in an environment where a sitting President is considered to be immune from indictment and extensive evidence of obstruction by the President was already gathered, Trump had nothing further to lose. Trump talking directly with Rosenstein about the Mueller investigation, when Rosenstein was providing oversight to the investigation, was highly inappropriate. His doing so sequestered at many miles high in the sky aboard Airforce One was beyond the pale. (Such a meeting location was surely chosen to assuage Trump’s paranoia over the possibility that Rosenstein might be wearing a wire.) Yet it isn’t completely outside the realm of possibility that Rosenstein might have believed that such a course offered the most likely path for justice being served in the long run.
• There are perhaps other possible explanations which I am not clever enough to discern. While such is certainly feasible, what is certainly NOT a possible explanation is that the Special Counsel probe concluded because all criminal and counter-intelligence investigations have been finished and all possible charges stemming from those acts have been filed. POTUS and his cult of followers will likely make such claims, and it is important to remember that this is gaslighting nonsense and that nothing could be further from the truth.
THREE LAWS OF THE TRUMP PRESIDENCY
1. Follow the money.
2. The controversies will distract you from the scandals.
3. Many secrets, no mysteries. https://t.co/ug4yNHLV3D
— David Frum (@davidfrum) December 28, 2018
Now lets talk about what we are likely to learn from the Mueller Report and what we are likely not to learn. While Congress and the public have been clamoring for full release of the report and the investigatory materials to the public, the reality is that this is quite unlikely to happen anytime soon, and there are some very good reasons why it wont happen.
As Charlie Savage noted in the New York Times (See: Will the Mueller Report Be Made Public? 17 Answers to What May Come Next) :
“Here are some categories of elements that may raise legal or policy concerns about disclosure to Congress or the public:
1. Any highly classified information, such as something that could help the Russian government identify and take out an intelligence source;
2. Anything that remains relevant to an ongoing investigation, such as those that Mr. Mueller spun off to regular prosecutors or the ongoing counterintelligence investigation into Russia;
3. Testimony and files that were presented to the grand jury and so are subject to a federal rule of criminal procedure that generally forbids disclosure of such material absent a court order;
4. Negative information about people whom prosecutors scrutinized but decided not to charge with a crime, which the Justice Department normally does not make public (this is why Mr. Comey’s news conference about Hillary Clinton’s email server was so broadly condemned by other law enforcement officials);
5. Internal executive branch information, like confidential communications with the president or agency deliberations, that could be subject to a claim of executive privilege.”
I’d guess that category #2 above alone encompasses more than 80% of the potentially relevant information Mueller has collected that would be of interest to the general public.
So where does that leave us, the general public, in terms of learning what Mueller has learned? I’d love to be wrong, but it likely might leave us with just a small portion of the big picture of the criminality that the Mueller investigation has uncovered. We might be provided with some additional evidence and disclosure of Mueller’s conclusions with regards to Trump’s direct and personal efforts to obstruct justice… my sense is that this is the topic most likely not to be covered by any of the above criteria (although a bizarre argument could be made that it falls under topic #4, since Department of Justice policy holds that the President cannot be indicted). Even on this topic, I would expect some major bombshells to be dropped, possibly including our being told what happened on Air Force One on October 8, 2018. And we might learn something about Trump’s illegal or unethical financial dealings. Most any other topic that Mueller has addressed could potentially be, in most part, hidden or redacted from public disclosure due to the five criteria given above.
I’m also guessing Mueller’s report might highlight some of the things that have long been in the public domain but for which the mainstream media has ignored or failed to recognize as important. Many of these topics have been catalogued in Seth Abramson’s book, Proof of Collusion: How Trump Betrayed America.
Some members of Congress with classified clearances may get to see more than the public does. And the public will continue to learn more through court filings in future indictments and trials. But it will be up to the Democrat-led House of Representatives to take its cues from Mueller’s probe by engaging in subpoenas and hearings aimed at disclosing more to the public than Mueller’s Report can publicly report.
Topic #4 above warrants some additional discussion, because of the subtleties involved. Typically in making a decision to bring criminal charges in many of the matters applicable to this probe, law enforcement seeks to bring charges in cases that it believes it can convince a jury “beyond a reasonable doubt”… which equates to about a 90%+ certainty. If they fail to bring charges in a particular matter, it does not necessarily mean that the subject of the investigation is innocent… it just means that at the present time prosecutors do not believe that they can convince a jury beyond a reasonable doubt. At a later time, when more evidence is available, they might change their mind and charge the case. So a failure to prosecute does not equate to a determination of innocence.
Further, the 90% certainty/”beyond a reasonable doubt” criteria applies to criminal prosecutions… it does not apply at all to the duty of the House of Representatives to impeach the President for high crimes and misdemeanors, or for the duty of the Senate to put on trial and then potentially remove from office a President who has been impeached. If Congress simply believes it is more likely than not that Trump is beholden to Putin in inappropriate ways, then that is more than enough to meet the criteria necessary to protect America from a President who consistently acts in a manner consistent with his being compromised by a hostile adversary.
It is time for Congress to stop gaslighting the public and avoiding its responsibility by telling us “we have to wait for the Mueller report” before contemplating impeachment. Evidence of Trump conspiring with Russia; his ongoing conduct in a manner consistent with his being a Russian asset; his ongoing attempts to obstruct justice; his ongoing violations of the Emoluments Clause of the Constitution; his persistent abuse of power; and his violation of his Oath of Office have been in plain sight for the past two years. On top of all of this, Trump’s conduct is consistent with his being mentally disturbed and suffering from a severe psychiatric personality disorder that appears to be getting worse on a daily basis. In a world in which Trump’s criminal, unethical and mentally unstable actions have seemingly become normalized, new acts supporting his impeachment are often disclosed on a weekly basis, and in some weeks there are many. How can Congress continue to allow such a man to make policy decisions for America and to have access to our nuclear codes?
Across the Atlantic, it is estimated that around one million people took to the streets of London this past Saturday to protest Brexit along with the social and economic ruin that will inevitably result from the UK’s withdrawal from the EU. If the US Congress fails to do its duty to bring to full public light and act upon the criminal and unethical acts of the Trump administration, will Americans have the backbone to take to the streets in similar numbers to demand it?
It is our obligation as citizens to do so. But it remains to be seen if we will.
These links provide considerably more depth on many of the topics I’ve covered in this column:
Natasha Bertrand in The Atlantic: What Mueller Leaves Behind
David Frum in The Atlantic: Even Without Mueller’s Report, Congress Had All the Facts It Needed
Kurt Bardella in NBC/THINK: Mueller report’s release to AG Barr is the end of the beginning for Trump, not the beginning of the end
Abby Vesoulis in Time: Mueller’s Investigation Lasted 674 Days. Here’s How That Compares to Other Probes
Megan Garber in The Atlantic: Americans Can’t Stop Mythologizing Robert Mueller
Madeleine Carlisle and Olivia Paschal in The Atlantic: After Mueller: The Ongoing Investigations Surrounding Trump
David A. Graham in The Atlantic: Imagining Trump’s America Without Robert Mueller
David Remnick in The New Yorker: It’s Mueller Time
Twitter Thread by Seth Abramson: Does this sound like Mueller to anyone? Not to me.
Twitter Thread by Seth Abramson: The counterintelligence component of Mueller’s investigation
Twitter Thread by Seth Abramson: A lot of the reporting surrounding this major event is *wrong*
Eric Tucker and Jonathan Lemire in The Chicago Tribune/AP: Trump not firing Rosenstein, says they had ‘a very nice talk’ aboard Air Force One
Added after initial publication:
Benjamin Wittes in Lawfare: How to Understand the End of the Mueller Investigation (Hint: You Can’t Yet)
- Better Days - November 26, 2021
- Independence And Freedom: Observations From The Field - July 4, 2021
- The Dominoes of Impeachment – Part 4 – Why Conviction Is Possible - February 11, 2021