Obligatory Mueller post

Mostly, so that it doesn’t take up all of quick hits.  I’m supposed to be relaxing on spring break, not spending all my time reading about the Mueller report and various reactions ;-).  So, lots of different stuff.

1) I like what Drum does in emphasizing Trump’s repeated instances of “corrupt intent.”

It’s hard to read the report in its entirety without coming to the clear conclusion that Mueller believed Trump was guilty of obstruction of justice on many, many occasions. In multiple cases, all three parts of his three-part test are present: the obstructive acts are there, the “nexus” to official proceedings is there, and corrupt intent is there.

However, he decided not to recommend charges because he knows the Attorney General disagrees with him about whether the law and the Constitution allow a sitting president to be indicted. [emphases mine] Based on the evidence he lays out, this appears to be the sole reason he balked at recommending charges.¹ If this case had been about any other person on the planet—or if the AG didn’t have such strong protective instincts—Mueller would have recommended charges.

In the end, Mueller appears to have backed off because he didn’t want to be involved in a big political fight. This does not speak very well for his willingness to do what’s right regardless of how it might affect him personally.

2) Chait:

The Mueller report is the story of a crime that succeeded and a cover-up that quite possibly did too.

Trump has repeatedly claimed, and his attorney general has repeated, that the Mueller report proved (as William Barr put it Thursday morning) “there was in fact no collusion.” Mueller’s report shows this claim of exoneration is at best highly misleading and at worst outright false.

The standard of proof used by Mueller is “establish,” which essentially means “to prove.” Mueller established both that Russia set out to help Trump’s campaign, in part by breaking American laws, and that the campaign expected to benefit from those actions, criminal and otherwise. The report states that it failed to establish “coordination,” which it defines as “more than the two parties taking actions that were informed by or responsive to the other’s actions or interests.”

And it emphasizes repeatedly that it brought charges only when prosecutors could meet that forbidding standard of proof:

As the report explains, “a statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.” The failure to establish these crimes does not mean investigators proved the negative or even that they found no evidence for them…

It is famously difficult to prosecute the leaders of tight-knit criminal syndicates, which is why known mob bosses can walk the streets as celebrities for years or decades. This is the case even though there are specific laws designed to target the Mafia. Now imagine a mob boss who commands the loyalty of a national party and can hand out get-out-of-jail-free cards to his underlings when they get pinched, and you’re beginning to see the difficulty of establishing the kinds of criminal-conspiracy charges Mueller was after.

Trump’s defenders have muddled the distinction between the standard of proof required to convict a defendant in court — the standard Mueller was operating under — and the standard of proof in the court of public opinion. When you’re charged with a murder, you might beat the rap if the key witnesses recant or mysteriously die right before the trial. You would then be legally entitled to walk free, but your fellow citizens are not required to accept your boasts of exoneration.

Trump beat the rap. But Mueller’s report shows in excruciating detail the moral culpability that oozed out of the candidate and covered everybody beneath him.

3) Ezra: “The best defense of Trump is still a damning indictment: The Mueller report’s defense of Trump: exculpatory incompetence, misplaced rage.”

The story the report tells is that a foreign government illegally interfered in America’s presidential election on Trump’s behalf, and rather than treating that incursion as an attack on America’s political institutions, Trump treated it transactionally, as a gift to him personally.

And so, rather than defend America from Russia’s attacks, he defended himself from the investigations into Russia’s attacks. Rather than see Russia’s hacks as a threat to the legitimacy of America’s elections, he saw the investigation as a threat to the legitimacy of his own election. So rather than defend the rule of law, Trump subverted it.

The irony is that if Trump’s defenders are right, then it was Trump himself who delegitimized his presidency. He did it through specific acts of obstruction, like firing James Comey and trying to fire Jeff Sessions and lying to the public, but he also did it by failing to understand that being president of the United States means putting America, well, first.

4) I’m really intrigued by the impeachment angle.  I think Brian Beutler makes a really strong case:

This is not principally an argument about what constitutes sound political strategy—about what approach will galvanize whose base more. My biases tell me that impeaching Trump would inspire Democratic voters, and bog Republicans down with endless recitations of their party’s hideous corruption. My biases tells me that running scared from the impeachment question would deflate many Democratic activists, by signaling to them that the party doesn’t really consider Trump’s presidency to be an emergency after all, and will refuse to hold his regime accountable for its crimes even if the next election goes well. But that could be wrong.

The real importance of impeachment at this point is to shelter the country from what Trump and his allies will do if Democrats remain aimless. Democrats aren’t really buying time for themselves. They are buying time for Trump to get the GOP back on its horribly dishonest but unified message that he has been exonerated and that the investigation itself was criminal. If Democrats don’t pull the country into a debate about impeachment, we won’t get a draw. We will get a debate about investigating the investigators and jailing Trump’s critics. Cowardice creates a void that Trump will fill with autocratic ambition, and his crooked attorney general will be there to help.

5) Jennifer Rubin:

Constitutional scholar Laurence Tribe tells me, “Volume II provides a perfect roadmap for impeaching this president for obstruction of justice if the House opts to pursue that path.” He continues, “Although Attorney General Barr did his darnedest to get in the way, and may have succeeded in creating a narrative that will protect the president, he had no way to erase or scrub that roadmap into oblivion.” Tribe points out that “it’s not just that the Mueller Report on p. 8 of the second volume says the Special Counsel’s Office is ‘unable to reach [the] judgment’ that ‘the President clearly did not commit [the crime of] obstruction of justice’ but that the Report elaborates numerous shocking instances of what any objective observer would have to describe as such obstruction.” And he concludes, “In a word, if we could imagine the Constitution’s framers reading this report on what President Trump had personally done to interfere with and undermine lawful inquiries into Russia’s role in helping him win the presidency, we would have to conclude that they would have regarded him as guilty of many high crimes and misdemeanors worthy of impeachment and removal from office.”

6) Greg Sargent, “Democratic equivocation over impeachment is a moral and political disaster.”

7) George Conway lets loose.  Seriously, how do they stay married: “Trump is a cancer on the presidency. Congress should remove him.”

So it turns out that, indeed, President Trump was not exonerated at all, and certainly not “totally” or “completely,” as he claimed. Special counsel Robert S. Mueller III didn’t reach a conclusion about whether Trump committed crimes of obstruction of justice — in part because, while a sitting president, Trump can’t be prosecuted under long-standing Justice Department directives, and in part because of “difficult issues” raised by “the President’s actions and intent.” Those difficult issues involve, among other things, the potentially tricky interplay between the criminal obstruction laws and the president’s constitutional authority, and the difficulty in proving criminal intent beyond a reasonable doubt.

Still, the special counsel’s report is damning. Mueller couldn’t say, with any “confidence,” that the president of the United States is not a criminal. He said, stunningly, that “if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state.” Mueller did not so state.

That’s especially damning because the ultimate issue shouldn’t be — and isn’t — whether the president committed a criminal act. As I wrote not long ago, Americans should expect far more than merely that their president not be provably a criminal. In fact, the Constitution demands it.

8) OMG Barr is just the worst.  Former federal prosecutor Renatto Mariotti:

Now that we have seen almost the entire report of more than 400 pages, we know Barr intentionally misled the American people about Mueller’s findings and his legal reasoning. As a former federal prosecutor, when I look at Mueller’s work, I don’t see a murky set of facts. I see a case meticulously laid out by a prosecutor who knew he was not allowed to bring it.

Mueller’s report detailed extraordinary efforts by Trump to abuse his power as president to undermine Mueller’s investigation. The case is so detailed that it is hard to escape the conclusion that Mueller could have indicted and convicted Trump for obstruction of justice—if he were permitted to do so. And the reason he is not permitted to do so is very clear: Department of Justice policy prohibits the indictment of a sitting president…

Moreover, Mueller’s team “found multiple acts by the President that were capable of exerting undue influence over law enforcement investigations.”

But Barr hid these inconvenient facts.

9) And, yes, put me on team impeachment even if Republicans will never remove Trump.  That should be an obvious moral shame on them, not just a political calculation on the part of Democrats.  Truly, if our constitutional system means anything, it means that a president who has provably acted as Trump has should be held as accountable as we can do so (which, is presumably, impeachment without removal.

But, Ezra argues makes a good case against, so, rare disagreement with Ezra:

The idea that “we shouldn’t impeach because the Senate won’t convict,’” Bouie writes, “is an instrumentalist vision of politics that treats it primarily as a tool for removal.”

I agree that it’s an instrumentalist vision of politics, but politics is often instrumental! And when it comes to the underlying question here — protecting American democracy — I’m an instrumentalist. Whatever its motivations, if an impeachment drive is certain to fail and likely to strengthen Trump and congressional Republicans going into the 2020 election — thereby rewarding the very behaviors it’s meant to curb — then I have trouble understanding the point of it…

Absent public support for impeachment, and amid a strong economy, it would give the White House an opportunity to run the playbook Bill Clinton ran so successfully in the 1990s: Here’s Trump, focusing on economic growth, and there are the Democrats, focusing on their doomed vendetta against the president.

This is a strategy that would unite Republicans and split Democrats, and if Trump won using it, then the harm to American democracy would be incalculable. I think it’s a mistake for liberals to wave that prospect away.

I’m not at all sold on the idea that this would strengthen Republicans, but it is a possibility, and I think a decent case that the worst possible outcome is: impeachment, non-removal, Trump re-election and that should be avoided at all costs.  Still, I think impeachment is the right call.

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