So like everyone else, I’ve been obsessing about what is going on with the Mueller report. This column by David Leonhardt comes close (with a few interspersed objections) to my own take on this. Here are the last three paragraphs:
Barr’s summary doesn’t answer why Russia went to such lengths to help Trump win, writes The Atlantic’s David Frum: “Mueller hasn’t provided answers, so much as he has posed a question.”
I don’t know why people think they know what Mueller answers Mueller has provided or not. We don’t know because we haven’t seen his report; we’ve only seen what Barr has told us about it. We know that Mueller came to a conclusion about conspiracy, but we don’t know why, and we don’t know the full extent of the facts that he uncovered in relation to Trump’s relationship with the Russians. There’s already plenty that’s already known to suggest there is significant corrupt intent if not treasonous intent. It wasn’t Mueller’s job to prove corruption.
Is it really such a mystery? See below.The Politico Magazine editor Blake Hounshell asks a related question: What’s behind Trump’s unique affinity for Russian president Vladimir Putin? “It seems quite clear now that Trump did not collude with Putin to game the 2016 presidential election. Why he still seems to want to collude with Putin to reshape U.S. foreign policy remains a mystery.”
Writing in Slate, the legal expert Richard Hasen poses another unanswered question: Why did Mueller not charge Paul Manafort and Donald Trump Jr. for encouraging Russian officials to give them dirt on Hillary Clinton? “Mueller’s reasoning matters, and we need to see the full report,” Hasen writes.
The bottom line is that we have to see the full report. The facts are one thing, and one’s interpretation of them is another. There are already enough facts out there to suggest that Trump is corrupt and unfit. Clearly Mueller for reasons I speculate about below—what I call the Clinton Lesson--wanted to be as conservative as possible about drawing conclusions.
The Russia connection for Trump speaks more to his venality and corruption than it does to questions of coordination or conspiracy. It was not Mueller’s mandate to prove that Trump is corrupt—he’s left enough bread crumbs around for others to do that. His mandate was to learn whether there was any deliberate coordination between the campaign and the Russian government to swing the election in Trump's favor. Unless there is information to contradict what is already known, clearly there was some coordination, but whether it rises to the level of an indictable or impeachable offense is more determined by the politics rather than what is technically illegal. The only reason Trump isn't being sent up the river is because 45% of Americans have been conned into thinking that he's basically a good guy who's being treated unfairly by establishment insiders.
I think Trump's actions were treasonous, if by treason we mean that one acts in a way that supports your country’s enemy's interest at the cost of the interests of one own country. Since in Trump’s opinion the Russians' helping him to win is the best possible thing that could happen to the U.S., it would be difficult to see him as having treasonous intent, but that doesn't mean that he hasn't abetted the interests of an adversary when it suits his interests.
So I still think there’s an argument to be made for treason, at least in the court of public opinion, but first you have to prove corruption—that he was willing to abet the interests of a foreign adversary in pursuing his own venal interests. The removal of sanctions against Russia and legitimating Russia’s actions in Ukraine were clearly part of the Trump agenda. He neither understands nor cares about U.S. policy toward Russia; he only understands and cares about his own interests, and if he can make a deal with Russia to promote his own interests even if it goes against established U.S. policy, well he’s the president, right? What he wants becomes automatically U.S. policy, so if he changes policy, how can it be wrong?
So there’s been a lot of talk about why Mueller punted on the obstruction charge. He’s being criticized for undermining the fundamental reason to appoint a special prosecutor in the first place, which is to have a legitimate non-political actor make the call on criminal behavior by an elected official. Instead Mueller has kicked the decision to a political appointee, Wm Barr, who has no compunction about concluding that there can be no obstruction if there is no underlying crime to obstruct. It’s easy to punch holes in that logic.
Even if Trump himself has committed no underlying crime, he clearly tried to obstruct the FBI probe into Flynn, who was subsequently proven a criminal. He was clearly involved in trying to cover up what the Trump Tower meeting was about. It looks probable, whether provable or not, that Trump has improperly dangled pardons to Manafort, and I"m sure others. So there’s a case to be made that Mueller failed to fulfill his responsibilities under the special prosecutor statute. Everyone who knows him says this failure is baffling and that it’s not in his nature to back away from a tough decision. So there’s got to be more to it, maybe some secret strategy. Maybe.
I think the mostly likely reason to explain this is what I’d call the “Clinton Lesson”—that the justice system should leave fundamentally political problems to the politicians. Ken Starr’s zeal in pursuing Bill Clinton was an over-the-top, partisan imposition of his Clinton hatred, and James Comey clearly overstepped when he scolded Hillary Clinton about the email nonsense. Regardless of what is in the special prosecutor statute, Mueller was not going to overstep by criminalizing what is fundamentally a political problem. He may be right or wrong about that, but it makes sense to me that he might think that way in this particular political climate.
The difference between now and Watergate lies in that there was a bi-partisan revulsion for Nixon. And it doesn’t matter that Trump is more revolting than Nixon by a factor of ten, Trump still has a 45% approval rating—Nixon’s approval rating, and even Carter’s, was in the twenties. It’s always naive to think that some abstract principle of right or wrong, or technically legal or illegal, can govern things in the political sphere. Responsible actors in the political sphere, including special prosecutors, can only do what is politically feasible. Mueller recognizes that it doesn’t matter how impartial he may in fact be; he is perceived as a partisan political actor thanks to Fox News and Trump’s own vilification of the investigation. And he realizes that his conclusions will be legitimate only to those who agree with them.
So Mueller, in refusing to exonerate Trump on obstruction, at least leaves the door open for the Democrats to make the case that Trump is corrupt and unfit for office, which was never within the scope of his mandate. Mueller, like most elite establishment types, probably believes that Trump is unfit, but he’s not a zealot the way Ken Starr was. So he is restraining himself from imposing his view to allow the political actors to find a way to persuade at least 60-70% of the country that Trump is unfit. That’s not Mueller’s job; it’s congress’s and the press’s job. Whether 60-70% of the country is persuadable is another question. I doubt it. Mueller probably feels that politically this was the most he could do without de-legitimating his investigation in the eyes of half of the country, and it might turn out that it’s important for the facts uncovered by the investigation to retain their legitimacy.
His goal in being conservative about his conclusions might have been in the interest of preserving the legitimacy of the facts that he has uncovered. And he might be very willing to talk about the facts—or just let the full report do his talking for him. We’ll see. But in any event, this isn’t over. It’s just the end of the beginning. In the meantime, it’s mostly a PR battle, and in the short run this works in Trump’s favor, but we still know a lot less than what is there to be known. Let’s hope that the Dems find a way to play effectively the cards Mueller has dealt them.