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Sunday, April 21, 2019


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.

Which raises the next question:  Should the House Democrats impeach Trump?  That will be the subject of my next post.


Chris said...

Professor Wolff,
Mild but sincere rejoinder:

"Mueller leads the Democrats to the mountain top, shows them the Promised Land, but says he himself shall not go with them."

Isn't the promised land that the Democrats need to take defeating Trump on anti-establishment policy? That is, the Bernie Sanders route. It seems like we have spent years arguing about impeachment for sometimes compelling reasons, and sometimes asinine ones, but it has led, or at least furthered, an incrustation within the Democratic party (especially its corporate core) to treat Trump as an aberration and not a symptom of a deeper problem. If the Democrats simply see impeaching him as the promised land, we'll just have another right-wing bigoted fuck in office within 2-4 years (and one immediately following, Pence is pure evil).

I must remind you, and all readers, that in terms of polling and campaigning, the whole russia and/or impeachment angle has ZERO political traction. At the corporate, main stream, establishment level, you would think it's as popular as medicare for all, legal weed, or a raised minimum wage. It's not. It's not even close.

Okay all that said, of course if he broke the law, and is corrupt (he is), I'm all in favor of fair and equal trials which target Trump, and don't think he's above the law. If anything those in power should be more susceptible to the law.

Robert Paul Wolff said...

Chris, Chris, you need to develop a little literary flexibility It is Easter Sunday, so I used a biblical tagline to characterise what Mueller thought he was doing. I didn't say he was OUR guide to OUR Promised Land. I said it was as though he was Moses to the Congressional Democrats' Hebrews.

Anonymous said...

Excellent summary, thank you.

Nate C said...

"Did Trump and his coterie conspire with the Russians to corruptly influence the outcome of the election? Mueller concludes that they did not."

should read

Did Trump and his coterie conspire with the Russians to corruptly influence the outcome of the election? Mueller does not conclude that they did.

talha said...

"Does God exist? Enlightenment thinkers such as Voltaire does not conclude that they did." Voila! A crack remains open for God to exist!! Hallelujah! And so goes the current "resistance" hanging on for dear life on the fact that you can't prove a negative. Meanwhile, the rest of the (rational) world proceeds on the basis of what is plausible in light of the evidence. Evidence schmevidence cry the brave and hardy band as they follow Maddow down the next rabbit-hole.

Nate C said...

The correction is a simple point of fact (rather strange that it would elicit such a reaction). Anyway, allow me to recommend that you read the report.

Christopher J. Mulvaney, Ph.D. said...

Thanks to Dr. Wolff for his summary. I have been under the weather for the past several days and do not yet have the intellectual where-with-all to read and comprehend! I guess the difference between Chris and I is this old atheist smiled at the older atheists' use of a biblical metaphor.

If there is a promised land to be attained in the next two years it looks like this: The dems put forward a ticket and platform that draws moderate and left factions together. The presidential campaign has a field organization that leaves no neighborhood uncovered. The platform leans left. Dem candidates savage their opponents for enabling Trump at the expense of their constitutional duty. I'd bet real money that should the above obtain there will be a massive increase in turnout comparable to the midterm's 14+ %. With continued Democratic gains in the suburbs, high turnout among millennials and minority groups, we will see a near 60/40 landslide.

If Dems work to create a new coalition of voters a party realignment will likely occur. Then Dems will have a built in advantage for several cycles going forward.

Both Adorno and Benjamin used the term "constellation" at times to describe the array of forces and relations (of all types, not just production!) that are arrayed in times of crisis. In every crisis there is potential, as Benjamin says, "...a revolutionary chance in the fight for the repressed past..." The constellation of forces at this juncture mitigate for freedom. Take the forces that mitigate for freedom, bring them together, then deploy them in the fight against fascism. That is our job and the choice is Socialism or Barbarism.

P.S. I've always thought that whoever came up with that slogan had to be familiar with Giambatistta VIco [1668 -1744], who saw civilizations going through three stages: Savagery, Civilization, and Barbarism. There is no better term to describe the Trump administration.

Michael Llenos said...

If bumper stickers could tell (and be allowed the telling of) future events, they would say:

Trump > 2020 Election

Trump > 22nd Amendment

Trump > U.S. Democracy

But they would never allow a bumper sticker to say:

Trump > Putin


Putin > Trump

For that would put a damper on their secret plans of World Domination. People may comment that I'm going too far into the future of the possibilities of Trump's plans. Just as conspiracy theorists thought George Bush sr. wanted a New World Order. But there is a difference. Bush and Gorbachev (or Yeltsin) were not good friends, while Putin and Trump are close buddies. Reagan wanted Gorbachev to 'tear down this wall.' While I believe Putin probably doesn't care about any walls at all. There exists no opposing friction, just unbridled cooperation between the two superpowers. Or at least, the latter behind the scenes.

Michael Llenos said...

There is hope though. The reason why the President could never become a dictator of the United States is that he has no personal Praetorian Guard (or personal Secret Police) like the 3 Axis countries (& their leaders) of WWII had. The President distrusts both the FBI and the CIA and probably even the Secret Service. And I don't think Putin is going to ship over half a million Russian combat forces to take over Washington D.C.. So the person that can exploit the military and political situations of the United States & Russia, for the long term, could only be Putin. The KGB and Spetnaz are Putin's and are not just assigned to him as the leader of Russia--which means Putin probably realizes all of this (and all of the above) and is not planning on Trump to rule the United States as a monarch. Personally, I like both the U.S. Green Berets and the Russian Spetnaz. I do realize many would disagree with me. Some people think the Knights of Westeros 'rock', but many think they don't as well. What can I say, I like The Hunt for Red October, and I like the fact that the Russians dismantled the German army forces of WWII.

Michael Llenos said...
This comment has been removed by the author.
s. wallerstein said...

Christopher Mulvaney,

The Trump administration isn't barbarism. When there's barbarism, there's no chance of impeachment and of winning the presidency in the next election.

Barbarism is what the U.S. does in the rest of the world, not what it does at home and what it has done consistently since World War 2. I live in Chile and I can tell you from personal experience.

Yesterday I looked for Fort Apache in YouTube. That's a weekly discussion program moderated by Pablo Iglesias, the leader of Spain's Podemos Party, in HispanTV, a Spanish language channel from Iran. The program is leftist, anti-imperialist and generally quite learned. I couldn't find it and checked the HispanTV website, only to find that Google has eliminated all their programs. I can't vouch for HispanTV's other programs, but Fort Apache (Iglesias is a Hollywood movie fan, hence, the title) has as high an intellectual level as this blog. Who is pressuring Google to censor alternative TV? Isn't that barbarism? Yet they are not going to censure this blog or Chomsky.

Christopher J. Mulvaney, Ph.D. said...

Mr. Wallerstein,
Barbarism is much more complicated, and geographically diffuse, then you suggest.For example, if we stick to Vico's understanding, Western Civilization is the entity that is now in the barbaric stage.

I'll try to presume you do not think me so ignorant as to think that what the U.S. does abroad is not barbarism. But it seems you do presume, for example that I do not know of the history of Chile and U.S. intervention. Barbarism is organizing a military coup and everything that happened as a result, eg, murder, disappearances, military rule, suspension of civil rights, etc . But at the risk of offending, Chilean armed forces and national police were complicit in the barbarism instigated by the U.S.

Perhaps not living in the U.S. gives one a rose colored view of the state of internal affairs here. This country was born on the twin barbarisms of genocide and slavery. The sequelae of those crimes are embedded in the domestic police forces and government policies at all levels (fed, state and local) to this day. The town I live is subject to a consent decree with the Justice Dep't that resulted from the widespread pattern and practice of police brutality and unnecessary use of force (murder). Racially motivated murder under cover of law is barbarism.

Chris said...

Professor Wolff,
Mea Culpa. I'll be candid, I *am* semi astute in literature (agree with Marx that Tristram Shandy is *the* novel!), but bible references are quickly lost on me. I only made it through the Gospels. Mostly so I could establish just how anti-Christian the republican party really is. ;)

s. wallerstein said...

Christopher M.,

Professor Wolff has asked us not to belabor the history of U.S. barbarism abroad in his post entitled "A Modest Request", so I'll not go into the details of U.S. intervention in the Chilean coup and in so many other other acts of barbarism outside of U.S. territory.

No, I didn't think that you are ignorant about U.S. barbarism abroad. I've read your previous comments and I know that you are a well-informed person.

However, it seems to me that at times people on the left in the U.S. lose their sense of proportions when they talk about Trump (I'm no fan of Trump). Trump is not Pinochet and the U.S. is not a fascist dictatorship. Google, as I point out above, suppresses critical media (from Iran), while it will never suppress critical media in the U.S. itself. What's more (pardon me this time, Professor Wolff), many of U.S. atrocities abroad were committed by governments headed by liberal Democrats hawks.

Christopher J. Mulvaney, Ph.D. said...

Mr. Wallerstein,
For the same reasons, I did not go into any detail about U.S. intervention abroad. Barbarism isn't limited to foreign affairs as practiced by the hegemonic power. I respect your opinions and find your posts worth the read, but as you can guess, I was a little surprised by the tact you took in your response. Again, I don't think I, or any other educated lefty needs to be reminded about liberal democrats hawks.

It is easy to lose ones sense of proportion over Trump. We have had bad presidents before, but Trump is in a different league. Trump is a malignant narcissist, a diagnosis worth reading about if you are not familiar with it. He is, in part related to his psychological pathology, the least knowledgeable about our system of government. He is a con man which is to say he is a bullshitter, saying whatever he thinks he needs to say at any given moment. Placing children in cages after separating them from their parents after being advised as to the inhumanity and long-term consequences of such a move by gov't experts is simply barbarism. I could go on, and on.....

Most importantly, Trump is a fascist. He blames a group of people for our problems, gins up hate and fear among voters so he can attack the hated group and secure his own power. He is not yet a Pinochet but he wants to be. His understanding of politics was the result of his relationship with Roy Coen who advised senator Joe McCarthy's paranoid attack on various institutions for having 'communists' in their midst.

U.S. government institutions have been systematically undermined, and made considerably less function than they were. Newt Gingrich gave us the government shutdown. Now the political dysfunction is so great that the majority party can not pass a repeal of the Affordable care Act, something they voted in the affirmative 70 (roughly) times during Obama's administration. They, when McConnell decided that Obama's administration would fail, adopted the strategy that only bills that would pass with Republican party support alone would be brought to the House or Senate floor for consideration. They have packed the Supreme Court. The only part of government that is reasonably functional is the House. The republican party has become the party of white supremacist/nationalists, etc., and acts more like a stalinist party in a totalitarian state than a small "d" party in a republic.

If anything, I am understating the nature and extent of the legitimation crisis we now face and have just scratched the surface of the problem. Governments whose institutions fail to function have the choice to reform or fall into the hand of demagogues. We are at that point now. I guess if it seems people are hysterical in reacting to Trump, don't be so quick in attributing it to psychological dysfunction.

We have a year and a half and we will see. A win for the left, or not.

s. wallerstein said...

Christopher M.

I see more continuity between Trump and previous rightwing presidents as well as between him and liberal hawks. The leftwing political theorist Corey Robin (CUNY), author of the Reactionary Mind, a study of rightwing thought from the French Revolution until the present, has been particularly good at pointing out such continuities.

I agree with you that Trump is a conman, a bullshitter and a demagogue. I don't see him as a fascist in any meaningful sense of the word. He may want to be one, but the political circumstances don't permit him to indulge his fantasies and in any case, neither of us has any access to what his fantasies are.

I don't find people to be "hysterical" (your word) in reacting to Trump, but maybe a bit too passionate in their rejection to allow for a rational analysis. Trump is repulsive, to be sure, vulgar, misogynistic and sexist, violently ugly, aggressively ignorant, everything that intellectuals like us have hated since high school or maybe even grade school. It's hard to look at him with a cold eye, but successful politics requires a cold eye.

In any case, I wish you luck in getting rid of Trump and in spite of our differences, I'm on your side.