The Mueller Report

The Mueller Report…What do we know now?

A week ago, on Thursday, April 18, Attorney General Bill Barr held a press conference about the Mueller Report. He then sent a redacted version of that report to congressional members which he also made available for public view.

Let us not be naïve. Both political sides are putting their “spin” on the Report and the analyzed events. These spins range from one extreme, “This is the best day so far in the Trump presidency” to the other extreme, “He should be impeached!” Trump himself exclaimed at first, “No collusion! No obstruction!” Nevertheless, upon becoming aware of the details of the Report that portray him in a negative light, he has claimed that the Report is full of lies.

As seekers of truth, we need to work hard to filter out the spin. This means we need to read with great care the Mueller Report for ourselves and to not accept blindly the “Cliff Notes” of secondary sources. It also means reading and listening to various points of view. I have forced myself to listen to CNN, Fox News, MSNBC and PBS, plus going on line to view additional sources.

Original purpose of the Mueller investigation

What has been overlooked by most news outlets is the conclusion that Mueller arrived at regarding the main purpose of his investigation: Did Russia interfere in our 2016 presidential election? Mueller’s answer was a resounding “Yes!” He provided pages and pages of evidence showing the multiple ways Russia tried to influence the election on behalf of Trump and against Hillary Clinton. Nevertheless, neither the White House, nor the Republicans, nor the Democrats have taken enough steps to block this type of interference in the future.

Attorney General William Barr

Every Attorney General swears to uphold the Constitution and is the highest law enforcement officer in the country.  He or she is supposed to be a neutral arbiter of justice and should be above partisan politics. The Attorney General is the attorney for the U.S. people, not the private defense attorney for the president. I believe that Attorney General Barr has lost credibility for the following reasons:

  1. Barr shared the redacted document with the White House and Trump’s lawyers prior to making it available to Congress or to the public. The Attorney General should be committed to equality and to not show favoritism.
  2. In Barr’s four-page summary letter of March 24, 2019 as well as in his press conference last Thursday morning, he distorted the Mueller Report on both the allegations of collusion and obstruction of justice, the right of Congress to evaluate the report, and the supposed eagerness of the President to cooperate with the investigation. (see below)

The Redaction of the Report

Attorney General Barr has emitted a redacted edition of the Mueller Report, not the complete version. Four kinds of information were blacked out. They are the following:

  1. Grand Jury material
  2. Classified information regarding secret intelligence content and sources
  3. Information that could interfere with other ongoing legal investigations
  4. Information that could hurt the privacy and reputation of ´peripheral third parties’

It seems reasonable to me that the first three types of information should not be revealed to the general public.  Because I am committed to the truth, I am not quite so convinced that peripheral third parties need to be protected. Nevertheless, I believe that Republican and Democrat congressional leaders have the right to see the entire non-redacted version plus the evidence that undergirds it. The reason is obvious. Attorney General Barr has lost credibility in the eyes of half of our citizens. He did not let Robert Mueller confirm the veracity of his “Summary” of last month nor the redacted version last week. I do not trust Barr to be the “gatekeeper” of what information is released. I also believe that Barr, Mueller, Don McGahn and others need to appear before Congress to answer important questions so that the truth can be made more public.

Legal Context – A President cannot be indicted but can be impeached

According to the Justice Department’s traditional position and the specific judgment of its Office of Legal Counsel, a sitting president cannot be indicted while in office. The rationale behind this is that presidents should not be distracted from fulfilling their executive responsibilities due to legal procedures against them. The options are the following:

  1. A president can be accused of a crime, but not indicted. Nevertheless, without being indicted, a president does not have a legal way to respond to the alleged crimes.
  2. A president can be indicted for crimes committed during his/her presidency, but only after leaving office.
  3. If a president’s actions reach the level of “high crimes and misdemeanors”, Congress has the responsibility to impeach a president. This is essentially the only way to remove a president from office.

In addition, Barr wrote an unsolicited letter to the Justice Department in June 2018 before he had become Attorney General. In that article he wrote that the Mueller investigation was illegal and a waste of time and taxpayer money, and that a sitting president could not commit obstruction of justice. Many people think that Trump chose Barr to be the Attorney General precisely due to these opinions. In essence, Mueller’s only course of action was to lay out the evidence and then let Congress take the next step. He clearly stated this, “We determined not to apply an approach that could potentially result in a judgment that the President committed crimes.”

No Conspiracy and Cooperation between Russia and the Trump Campaign

The good news for Trump is that Mueller did not find evidence of conspiracy. The word “collusion” is not a legal term, and as a consequence, Mueller chose to hold a rather strict definition of the legal crime of “conspiracy”. Although Russia interfered in the election in support of Trump and against Hillary Clinton, and the Trump Campaign appreciated their support (ex. “We love WikiLeaks!), Mueller did not find that there was actual cooperation between the Russian government and the Campaign.

Obstruction of Justice

In his summary letter a month ago, Barr concluded (together with Deputy Attorney General Rod Rosenstein) that Trump was not guilty of obstruction of justice. This is where Barr distorted the facts. The Mueller Report clearly stated that it did not reach that conclusion. The Report reads, “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. We are unable to reach such a judgment.” It continues, “While this report does not conclude that the President committed a crime, it also does not exonerate him.” Thus, Attorney General Barr gave false information when he provided the first “spin” of the Mueller Report in his March 24th letter and then again in his press conference on April 18.

Why didn’t Mueller reach a decision regarding possible obstruction of justice? He investigated 10 episodes of alleged obstruction by the Trump campaign and administration. He then laid out the evidence both in favor and against that possible obstruction. Was the evidence so divided and balanced that Mueller could not reach a decision? No! He believed that his role was not to render a decision. He wanted the evidence to be weighed in the court of public opinion. If there would be a judgment, it would not be made by him nor by the Attorney General. The U.S. Constitution dictates that it is the Congress that should evaluate if impeachment is required for an obstruction of justice. (See comments below on Congress)

Did President Trump eagerly cooperate with the Mueller investigation?

                           During his press conference and in other moments, Barr affirmed that President Trump willingly and eagerly cooperated with the investigation. The facts do not confirm this claim. Mueller wanted to directly interview the president and so requested. Trump’s lawyers fought this request over and over again. Finally, it was agreed that Mueller would ask questions that Trump would answer in writing. (Mueller considered subpoenaing the president to an oral interview, but finally decided against doing that because the delay tactics of Trump’s lawyers would have caused the Report to have been extended by months or years.)

                           In his written answers, Trump was not very cooperative nor transparent. Over thirty times, he answered “I do not remember” or “I do not recollect”. Given that he had several days to turn in his answers, he had plenty of time to review emails, his notes, etc. to refresh his memory. (This is particularly ironic given that he has boasted over and over again that he has one of the best memories of anyone in the history of humanity.) During this past week, Trump has again refused to turn over his tax records. He has also demanded that his White House staff (both current and previous) refuse to appear before Congressional committees, even when they have been subpoenaed. It sure seems that he is trying to hide information from public view.

The Role of Congress to Evaluate the Report

Barr repeatedly affirmed that Mueller never said that the report was to be evaluated by the Congress. This goes directly against Mueller’s testimony. On repeated occasions, Mueller indicates the role of Congress to not only read his report, but if necessary, to act upon it. For example, “The conclusion that Congress may apply obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.”

The Report also states, “With respect to whether the President can be found to have obstructed justice by exercising his powers under Article II of the Constitution, we concluded that Congress has authority to prohibit a President’s corrupt use of his authority in order to protect the integrity of the administration of justice.” It is quite clear that Mueller wants Congress to evaluate his findings.

“Sincere” Beliefs?

Attorney General Barr made an unusual comment that has not received much comment by the press. He claimed that some of President Trump’s actions were based upon his “sincere” beliefs that he was being unfairly attacked. I take issue with the word “sincere”. Only God can determine the sincerity of people’s hearts. So, unless Barr has an infallible connection with God, he should be an impartial Attorney General and not vouch for the sincerity of anyone.

Where do we go from here?

The two options that are generally proposed are: (1) We should forget about the Report and move on with other challenges; or (2) Congress should begin impeachment procedures now. I disagree with the first option because the serious Russia threat needs to be addressed and because Mueller has placed the ball in Congress’ court.  I am against the second option because an impeachment procedure is painful and divisive for the entire nation and should only be entered into after thoughtful deliberations. I urge a third way. It is the responsibility of Congress to clarify remaining doubts and answer lingering questions by calling Mueller, Barr, McGahn, and others to bear witness to the truth. Let us follow that truth wherever it leads.

A National Emergency?

February 21, 2019

Our political turmoil continues. The negotiators in Congress who were representing the Democrats and Republicans were able to reach compromise legislation on federal spending last week and averted a governmental shutdown. The legislation passed with overwhelming, veto-proof, majorities in both chambers. The bill dealt with border security, but only authorized $1.375 billion dollars for the construction of 200 miles of a new barrier along the border between Mexico and the United States. This was much less than the $5.7 billion that Trump had requested. On Friday, February 15, President Trump announced that he would sign the legislation into law, but that he was also declaring a national emergency in order to secure more funds for expanded construction of the wall. White House officials say that the declaration would permit the president to redirect $3.6 billion from the military, $2.5 billion from counter-narcotic programs, and $600 million from the Treasury towards wall construction.

Justification for and Weaknesses of the Declaration of Emergency

The 1976 National Emergencies Act is a U.S. federal law that grants special power to the President during an emergency but identifies restrictions for the use of that power. An emergency declaration can be rescinded by a joint resolution of both Chambers of Congress, but this would require a 2/3 majority in both the House and in the Senate in order to override a veto by a president.

Since its enactment, the law has been utilized 59 times, and over thirty of those declarations are still in effect. Republican and Democrat Presidents have invoked it, but this time is different. Previous uses of this act have always enjoyed widespread, bi-partisan acceptance. Recent examples include (1) the prohibition of the importation into the U.S. of diamonds from Sierra Leone {Clinton Executive Order 13194} and (2) the blocking of property of individuals contributing to the conflict in the Democratic Republic of the Congo {Bush Executive Order 13413}. Although these and other declarations are somewhat important for those involved, they hardly rise to the level of a “national emergency”.

What is new in Trump’s Declaration is that he wants to transfer funds authorized for other purposes into the construction of the border wall. In its federal spending bill, Congress specifically prohibited the use of funds beyond the $1.375 billion for the construction of a new wall. The U.S. Constitution maintains a fairly clear separation of powers of the three branches of our government (Legislative, Executive and Judicial). It is the Congress that has the “power of the purse”, that is, the responsibility to authorize federal spending, not the Presidency.

How will this conflict play out? It is likely that challenges will take place in both Congress and in the Courts.

Challenges in Congress

            Now that the Democrats have the majority in the House of Representatives, it is very likely that Speaker Pelosi will introduce a Joint Resolution to rescind Trump’s emergency declaration. It is also likely that the resolution would pass the House with a substantial majority. Through a special provision, the Senate would have to vote on that same legislation within a short period of time. Republican Senate Leader McConnell would probably not want to bring any legislation to the floor in which Trump would lose the vote, but in this case McConnell would not have any other option. Many Republican Senators (including Lamar Alexander, Susan Collins, and Marco Rubio) have expressed that the declaration would establish a “dangerous precedent” and, as a consequence, they would support a resolution to rescind the emergency declaration.[1]

            It is not so likely that such a Joint Resolution would garner the two/thirds majorities in both the House of Representatives and the Senate which would be needed to override a Trump veto.

Challenges in the Courts                                                                                               

In his White House speech, President Trump himself predicted that his emergency declaration would be challenged in the courts. “They will sue in the 9th Circuit (Court of Appeals) even though it shouldn’t be there, and we will possibly get a bad ruling and then we will get another bad ruling and then we will end up in the Supreme Court and hopefully we will get a fair shake and win in the Supreme Court, just like the (travel) ban.”[2] Trump made these comments in a sing-song fashion as if to ridicule the judicial process, but in fact, he is probably correct in predicting what would happen in the various venues of the legal proceedings.

As of today (February 21, 2019), sixteen states have begun proceedings to sue the President. The legal suit claims “Contrary to the will of Congress, the president has used the pretext of a manufactured ‘crisis’ of unlawful immigration to declare a national emergency and redirect federal dollars appropriated for drug interdiction, military construction and law enforcement initiatives toward building a wall on the United States-Mexico border.”

Some other legal proceedings will probably come from ranchers who own land on the Southwest Border who do not want their land taken by the government through the use of “eminent domain”.

It is also possible that Democrats in Congress will sue the President, but I think they will express their disapproval through a vote on a joint resolution to rescind the declaration.

In the end, it is likely that the legal proceedings will reach the Supreme Court. The decision they might reach is somewhat difficult to predict. Although “Conservatives” have a 5/4 majority in the Supreme Court, it is not at all certain how they will rule. The newest Justice, Brett Kavanaugh, is known to be in favor of expanding powers for the presidency and would probably vote in favor of the declaration of national emergency. Nevertheless, other conservative justices usually tend to defend the constitution over “extenuating circumstances” and might rule that Trump has violated the law.

At times, President Trump has shown himself to be brilliant in his use of social media to advance his goals (tweets, rallies, etc.). At other times, he has made mistakes that have hurt his cause. His Rose Garden speech on February 15 was not one of his better moments. He made statements that weakened his argument that border wall construction was an “emergency”.

  1. If it were truly an “emergency”, the border wall construction should have been his only topic. Nevertheless, he started his speech by rambling about a host of other items: Brexit, trade, Syria, North Korea, praising himself for being suggested for the Nobel peace prize, etc. before he got to the main issue of the “national emergency”.
  2. During the speech he referred to his emergency declaration and claimed, “I didn’t need to do this, but I’d rather do it much faster.” Emergencies usually require urgent action. By his own words, he unintentionally admitted that the declaration was not urgent, merely just convenient.
  3. After the speech, Trump spent the weekend on vacation at one of his resorts in Florida. Although presidents have the right to go on vacation, it gives an apparently contradictory message to declare an emergency and then go play golf.

My Reflections

  1. Those Republicans in Congress who believe that Trump’s declaration of national emergency was a violation of the law, should vote their conscience instead of giving in to “party loyalty”. Partisanship does not outweigh ethical convictions. It will be important to notice how Republican voters respond to the Senators and Representatives who vote their conscience.
  2. Democrats should avoid “overreach”. They hurt their own cause when they overstate their case. They should stick to the facts. They also need to repeat over and over again why they believe the border security bill was good and sufficient (increased number of ICE personnel, asylum judges, and inspection agents at the ports of entry, the use of better surveillance technology, etc.)
  3. The Supreme Court should evaluate whether this was a valid, legitimate use of the 1976 National Emergencies Act or whether it was a violation of that Act, especially the transfer of large sums of previously designated funds.
  4. Congress should revisit the 1976 National Emergencies Act and, where necessary, make explicit what activities are considered emergencies and those that are not. This Act needs to be updated.
  5. According to all the national polls, most U.S. citizens do not favor declaring a national emergency to obtain funds to build to build a border wall. Nevertheless, a significant majority of Republicans do favor such a declaration. So, even if Trump loses a joint resolution in Congress and/or rulings in the courts, he will repeatedly affirm that he has fought the good fight to be true to his campaign promises. Most of his political base will stick with him and he hopes that this will be sufficient to win the 2020 election. It is important to see if he can keep independent voters. At the present, the majority of independents view this border wall construction as a campaign promise that is not the best way to provide border security.
  6. There is a national crisis, but it is not the need to construct 200 more miles of a wall along the border. There exists a moral crisis. There is a need for more truth in the discussions about the great moral challenges of our day. We the People need to demand, and live, the truth.

[1] See for statements by Rubio and other Republican senators who have expressed they would vote in favor of a joint resolution to rescind the emergency declaration.