Tuesday, June 4, 2019

Why Trump's Obstruction Matters: It May Be the Reason Mueller Could Not Establish Conspiracy

Special Counsel Robert Mueller’s public statement last week amounted to a simple plea: read what I wrote. The collective American failure to do so made that plea necessary.

It is not entirely the fault of the public. Attorney General William Barr deliberately mislead all of us about what Mueller wrote before any of us had a chance to read the report. Barr told us what to think, and many of us left it at that. Since the release of the redacted version, however, the evidence has been there and has been largely ignored.

The public generally relies on the press to interpret such documents, and the American news media has not done a particularly good job in this case.

The press has been relatively responsible in its treatment of Volume 2, which lays out the case that Donald Trump committed multiple acts of obstruction of justice. As Mueller made clear in his public statement, Trump only escaped indictment due to Department of Justice policy against indicting a sitting president.

The problem is that the focus on the obstruction in Volume 2 case has led us to ignore what precisely Trump was obstructing. The conventional wisdom on Watergate is that it was the cover-up that got Nixon, as if that unusually bright man stupidly committed obstruction of justice for no good reason. But historians of Watergate know well that Nixon covered up for a perfectly good reason: to avoid exposing his own criminal activity. The same is likely true here, and we have thus far failed to appreciate it.

In my reading, the greatest failing in the public and press understanding of the Mueller report pertains to Volume 1 on the investigation into Russian interference. Trump, of course, has repeatedly (and falsely) claimed that it concluded that there was “no collusion.” Trump’s lies are to be expected. What has been far worse has been the failure of the press (and members of Congress) to convey accurately what Mueller does say in Volume 1—and how what it actually says adds greater weight to the damning material in Volume 2.

In short, I think the report tells us that the Trump Campaign may well have conspired with the Russian government, but Trump’s obstruction prevented the investigation from proving it.

The failure of the press to communicate the real substance of the report cannot be blamed entirely on Barr. He accurately quoted the report in his initial letter: “[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

Unfortunately, the careful language of the report—“did not establish”—is easy to misinterpret, and it became something else in many press accounts: that the report found “no evidence” of collusion. The New York Times, CBS News, and NPR all framed the issue that way. Trump’s defenders consistently have repeated that lie. Anyone who has read Volume 1 (as I have) knows that the report explicitly says it did find evidence of conspiracy—but that the evidence was “not sufficient.” Mueller’s public statement made a point of saying the Special Counsel’s Office (SCO) concluded not that there was no evidence, but “that there was insufficient evidence to charge a broader conspiracy.”

So what does that mean? The report explicitly tells us: “A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.” (Vol. 1, p. 2) In short, the report tells us that there was evidence of conspiracy with the Russian government, but that it did not meet this high legal standard: “whether admissible evidence would probably be sufficient to obtain and sustain a conviction.” (Vol. 1, p. 8) It may be worth noting that modifier “admissible”—it seems to suggest that there is evidence that would not be admissible in court that would have been sufficient to establish a conspiracy.

Language matters. A careful reading of the report reveals that the SCO used a variety of phrases to describe what it did or did not find. When it found “no evidence,” it says so: “The investigation did not identify evidence that any U.S. persons conspired or coordinated with the IRA [Internet Research Agency, the Russian government’s social media manipulator].” (Vol., 1, p. 4) The report also forthrightly states: “The investigation did not find evidence that the Trump Campaign recovered any such Clinton emails.” (Vol. 1, p. 61) Also: “The investigation did not identify evidence that the Campaign passed or received any messages to or from the Russian government through CNI [Center for the National Interest] or [its director Dimitri] Simes.” (Vol. 1, p. 103)

These examples make it impossible to argue that “did not establish” means the same thing as “did not find evidence.” That misreading, however, has been immensely useful to Trump and his defenders.

A major consequence of the failure to understand Volume 1 and its argument is that the damning evidence of obstruction of justice by Trump in Volume 2 seems less significant than it should.

Barr himself has absurdly claimed that Trump’s obstruction behavior can be excused because he had been falsely accused: “If the president is being falsely accused, which the evidence now suggests that the accusations against him were false, and he knew they were false, and he felt that this investigation was unfair, propelled by his political opponents, and was hampering his ability to govern, that is not a corrupt motive for replacing an independent counsel.”

A fair reading of Volume 1 cannot sustain Barr’s claim “the evidence now suggests that the accusations against him were false.” The report does not conclude that the conspiracy charge was false. But the lie that Volume 1 found “no evidence” of conspiracy quite nicely serves Barr’s end (I give the press the benefit of the doubt that their error was due to laziness; Barr is too experienced a lawyer for that.)

According to Barr’s contorted defense, there can be no obstruction if there was no underlying crime. But Volume 1 makes clear two things: 1) there was an underlying crime of Russian interference in the election (a point Mueller hammered home not once but twice in his public statement) and 2) the failure to establish a second crime (a conspiracy between the Trump campaign and the Russian government) may be due precisely to Trump’s obstruction of justice.

In the Volume 1 summary of charging decisions, the report states that the evidence of conspiracy was not sufficient but does not leave it at that—it explains why the evidence was insufficient: “several individuals affiliated with the Trump Campaign lied to the Office, and to Congress … Those lies impaired the investigation of Russian election interference.” (Vol. 1, p. 10) In addition, the “investigation did not always yield admissible information or testimony” due to Fifth Amendment claims, attorney-client privilege, and First Amendment protections of journalists. Even worse, some evidence was destroyed or hidden: “some of the individuals we interviewed or whose conduct we investigated—including some associated with the Trump Campaign—deleted relevant communications or communicated during the relevant period using applications that feature encryption or that do not provide for long-term retention of data.” (Vol. 1, p. 10)

The significance of that last point cannot be overstated. It is crucial to the SCO’s inability to establish a conspiracy: “the Office was not able to corroborate witness statements through comparison to contemporaneous communications.” (Vol. 1, p. 10) In other words, they had testimony that showed conspiracy, but the documentary evidence that might have met the legal standard for conspiracy was destroyed or unavailable.

Due to these limitations on the investigation, the report states unequivocally that its account of Russian interference, in particular the possible conspiracy between the Trump campaign and Russian government, is not definitive: “the Office cannot rule out the possibility that the unavailable information would shed additional light on (or cast in a different light) the events described in the report.” (Vol. 1, p. 10)

That statement could cut either way, of course. Perhaps the “unavailable information” would make the actions of Trump campaign officials look completely innocent. Given the entirety of the introduction (and the above quotation is the final sentence of that introduction), it seems to me likely that the report is saying that while the investigation did not establish a criminal conspiracy, its authors are not confident that there was not one.

This reading of Volume 1 casts the findings of Volume 2 in an entirely “different light.” The standard reading of the report is that the two volumes are entirely separate. Given that the report is organized that way, that’s natural, especially when we consider that Volume 1 says the investigation did not establish a criminal conspiracy and Volume 2 then goes further and explicitly refuses to exonerate Trump on obstruction of justice. They seem to come to two separate conclusions on two separate subjects. Barr has adroitly used that fact to try to neutralize Volume 2.

If we read the two volumes as one story, however, another picture emerges: The investigation failed to establish conspiracy in part because Donald Trump obstructed justice by dangling a pardon to Paul Manafort.

The key unknown in Volume 1 is the precise nature of Manafort’s contacts with Russians during the campaign.  The description of the roadblocks the investigation encountered establishing conspiracy closely fits Manafort’s case. “Manafort lied to the Office and the grand jury concerning his interactions and communications with Konstantin Kilimnik.” (Vol. 1, p. 10) The report notes that it was not “able to gain access to all of Manafort’s electronic communications (in some instances, messages were sent using encryption applications).” (Vol. 1, p. 130)

The investigation established that Manafort shared internal polling data with Kilimnik, but could not ascertain with certainty why. Thus, it uses the same language on this question as it does on conspiracy in general: “The investigation did not establish that Manafort otherwise coordinated with the Russian government on its election-interference efforts.” (Vol. 1, p. 131) (Given the earlier description of what that phrase means, this means that they did have evidence—likely testimony from Rick Gates—but that they could not corroborate it with documents.)

Since we know that the Russian election activities involved social media manipulation to help Trump and hurt Clinton, it is no great stretch to imagine the answer to that question—Manafort gave Kilimnik the polling data to aid in precisely targeting Russian election-interference activities—but as a legal matter the SCO was stymied. It seems likely that the cooperation agreement with Manafort led the investigators to believe that they would finally get answers to that fundamental question.

Then, in one of the strangest twists in the entire saga, Manafort violated the agreement and lied to them. Why?

This is where the two volumes come together. Most accounts of the obstruction case have focused (as Barr did) on Trump’s efforts to have Mueller fired. Buried amidst the multiple and varied instances of Trump’s obstructive actions, however, is the more significant section on Manafort. Its conclusion is among the strongest statements in the report: “Evidence concerning the President’s conduct towards Manafort indicates that the President intended to encourage Manafort not to cooperate with the government.” (Vol. 2, p. 132)  Trump “discussed with aides … whether Manafort knew any information that would be harmful to the President.” (Vol. 2, p. 123) The obstruction activity even continued after Manafort’s plea agreement (Vol. 2, p. 127), and Trump continued to hint at pardon after Manafort’s failure to abide by the agreement (which practically insured significant jail time for Manafort) became publicly known. (Vol. 2, p. 128)

Unlike other instances, in which the report bends over backwards to give Trump the benefit of the doubt (as in whether or not he was trying to influence the jury in Manafort’s trial), the report states “the evidence supports the inference that the President intended Manafort to believe that he could receive a pardon, which would make cooperation with the government as a means of obtaining a lesser sentence unnecessary.” (Vol. 2, pp. 132-133) 

Put all of this together, and the report seems to me to be saying that there might well have been a conspiracy between the Trump campaign and the Russian government, that the key figure in that conspiracy was Paul Manafort, and that Trump’s obstruction of justice was instrumental in blocking the investigation’s ability to establish that conspiracy by convincing Manafort to lie to investigators.

When we strip away Mueller’s careful legal language, that’s what remains.

Why did Mueller come out and make that public statement last week? Why did he reemphasize the crime of Russian election interference? My reading of the complete report leads me to conclude that he was telling us that Trump’s obstruction matters, not just as a simple matter of principle (as most have interpreted it) but because that obstruction blocked the investigation and may well have successfully hidden a conspiracy between the campaign and the Russian government.

As Mueller said, that “deserves the attention of every American.”