I have now read the Mueller Report, all but one Appendix [see below]. You can find it here. Since I suspect very few of you will plow through it, I will spend this post giving you my take on it.
The Report is 458 pages long, and as one would expect in a document produced by lawyers, it is awash in footnotes, more than two thousand of them. It is divided into two Parts followed by four appendices. Part I considers Conspiracy, Part II considers Obstruction of Justice. Two appendices list acronyms and people mentioned. A third gives Mueller’s written questions to Trump and Trump’s “answers.” The fourth lists completed and on-going prosecutions. I did not read Trump’s “answers.” I don’t think I missed much.
Part I is 200 pages long, and it tells a story with which we are pretty much familiar. The Russians tried to get Trump elected. The entire Trump world welcomed the help and had endlessly many meetings and contacts with all manner of Russians, both about the famous emails and about the Trump Tower project. Did Trump and his coterie conspire with the Russians to corruptly influence the outcome of the election? Mueller concludes that they did not.
What about collusion? Recall the definition I surfaced on Google:
Collude: cooperate in a secret or unlawful way in order to deceive or gain an advantage over others.
Did they collude? Did they ever! Lord knows they tried. But I have had my say about that. What interested me was Part II, on obstruction, because here I learned something. Not about the facts, by and large. They are pretty well already known, thanks to some superb investigated journalism and a monumentally leaky White House. No, I learned something about the law, which I will now relay to you. I ask pardon of the lawyers among you, to whom this will be old news.
Obstruction of Justice is a crime with three elements. These are The Obstructive Act, the Nexus to an Official Proceeding, and Intent.
The obstructive act is the thing the person is accused of having done.
The nexus to an official proceeding is the connection to some legal or other official proceeding – a trial, a grand jury process, a Congressional hearing or investigation – that is obstructed or interfered with by the obstructive act. The official proceeding need not actually be under way. It is sufficient that it is reasonable to believe that such a proceeding – a trial, a grand jury hearing – will take place.
And the intent is the conscious and deliberate purpose of the accused corruptly to interfere with or obstruct the proper legal proceeding.
So, to prove, let us say, that someone is guilty of obstruction of justice for bribing a witness to give perjured testimony in a trial, one would need first to show beyond a reasonable doubt that the accused had offered money or something else of value to a prospective witness to lie under oath; then one would have to establish that an actual trial was taking place or could reasonably be expected to take place in which the individual could reasonably be expected to be called as a witness. And finally one would have to show beyond a reasonable doubt that the accused understood all of this sufficiently actually to intend by the offering of the bribe to be soliciting false testimony.
Part II of the Mueller Report consists in the main of ten parts, in each of which a separate act imputed to Donald Trump is then subjected to this pattern of analysis. For example, the eighth act is: “The President orders McGahn to Deny that the President Ordered the Firing of the Special Counsel.” Each part begins with a brief Overview, followed by an extended statement of the relevant facts [with a gazillion footnotes], and then an analysis of the Obstructive Act, the Nexus to an official proceeding, and Intent.
In six or seven of the ten analyses [I was reading fast and did not keep track] Mueller concludes that the evidence establishes that each of the three elements of Obstruction is present. In the remainder, he indicates that the evidence falls short of establishing one or another of the elements.
In a normal prosecutorial proceeding, the next step would be for the prosecutor to seek a grand jury indictment of the accused on each of the six or seven counts that meet the evidentiary and legal threshold. But Mueller stops dead, and does not. Why? Because he considers himself bound by the opinion of the Office of Legal Counsel of the Department of Justice that a sitting president cannot be indicted.
But couldn’t Mueller at least conclude by saying that Trump would have been indicted were he not a sitting president? This is interesting. Mueller says that the usual recourse for someone accused of a crime is to go to trial [to have his or her day in court, as the saying has it], where the accused can cross examine witnesses, put on an affirmative defense, make arguments to a jury, and be judged by “a jury of his peers.” But because Trump cannot be indicted, he does not have that opportunity, and Mueller says it would be unfair to accuse him. So Mueller walks right up to that line and stops.
In short, Mueller does not merely provide Congress with a “road map for impeachment,” as many commentators have said. He takes Congress by the hand and leads it right up to the finish line of that journey, and then says, “The next step is up to you.” If I may on Easter Sunday invoke an Old Testament image, Mueller leads the Democrats to the mountain top, shows them the Promised Land, but says he himself shall not go with them.