Mulling Over the Mueller Report

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When Justin Naylor and I jointly decided to write about our takes on the Mueller Report, I was eager to put forth my blue viewpoint, to give a window into the way Democrats see the whole issue. But since reading Luke Phillips’ excellent meditation on “half-depolarization,” I’ve recognized that I should at least try to do it in a way that the other side is able to hear, and that not only draws distinctions, but identifies common values and areas of concern. Otherwise, how would my take be any different from any of the other partisan takes on the issue? Why would you come to Better Angels’ The Conversation to see more of the same?

I also want to focus on not just the report itself, but on the environment into which it’s dropped with a thud. I think understanding that landscape is vital to reckoning with the potential impact, or lack thereof, of the report.

So here is my best attempt.

First of all, let’s get my personal viewpoint about the report out of the way. I do see the issue similarly to how my fellow liberals and progressives see it, in that I believe the Mueller Report is a much-needed reckoning of the misdeeds of the Trump Administration, and that it does lay out sufficient evidence to show that this president is patently unfit for office due to issues of both incompetence and wrong-doing.

As a matter of prudence, I’m not really sure about the proper path forward, in terms of possible impeachment and Senate trial. People much smarter than me continue to wrestle with that very issue.

But as I mentioned on the Better Angels Podcast when Attorney General Barr’s summary of the report was first released, I thought the entire episode was predictably anti-climactic, since there wasn’t much in his summary, nor likely in the report itself, that we didn’t already know. I suppose the most significant exception to that is the fact that no additional indictments of people surrounding Trump were included in the report, particularly around the issue of whether campaign or administration staff, or the president himself, coordinated directly with the Russians to sway the election in their favor.

Republican supporters of the president naturally see this as evidence of Trump’s vindication. But to myself and to many of Trump’s critics, it’s more of a reflection of Mueller’s restrained approach to the investigation. Despite being a lifelong Republican, Mueller knew that his team had already been painted as toadies of the Democrats by those hostile to the investigation, and therefore quite possibly reasoned that further indictments would be better reserved for the judgment of the direct representatives of the people—Congress.

Let’s be honest about the current moment in time: not much has changed, now that the report has been released, from the previous reality on the ground. The conclusions on either side have remained the same as before.

The Democrats generally believe Trump is a crook who was willing to compromise any sense of ethics to get his way, and that he did everything in his power to stop us from knowing the truth, and was even willing to fire those investigating him. The Republicans who support Trump generally believe that this whole investigation is a vast witch-hunt conducted by jilted Democrats bitter about losing the election, who won’t let the issue go no matter how many people investigate him and his people and fail to produce the evidence needed to indict. These two statements are no more true today than they were on April 17th or March 23rd.

I think deep down, we all knew that there would be no true resolution from the report’s release. Yet the media reported on its twists and turns breathlessly, as if there were some event coming that would free us from the limbo of the past two years.

But of course, that was never going to happen. Perhaps the most interesting aspect of the report and its impact is how little it’s changed things. The slow-drip media narratives have served to entrench both sides within irretrievable positions, such that even with all of the evidence it presents from direct testimony and interviews, it has been unable to change anyone’s view of the situation.

So rather than lay out my view of the merits of the case against the administration, I think it’s much more useful to try and understand why the views of the two sides are irreconcilable.

A discussion of the role of media in this vast soap opera is warranted. Conservatives are certainly eager to have that role examined, particularly what people like Andrew McCarthy at the National Review and Fox News have called the “media-Democrat complex.”

That speaks directly to the central issue of supposed media bias, and while commentators and editorialists on either side of the issue have continued beating their narrative drums, as we would expect, a less-examined but perhaps more important element of the conflict is the straight-news reporting on the administration by dogged investigators, and particularly their sources. The New York Times, Washington Post, and a host of other investigative outlets have given us a steady cadence of damning revelations about the Trump White House, much of it coming from anonymous sources. And this reliance on anonymous press informants, as necessary as it has been, has given critics of this coverage a foothold on a point of attack.

Unnamed sources have an important place in the long history of investigative reporting, perhaps the most famous being the Washington Post’s “Deep Throat,” who helped to bust open the Watergate story and take down President Richard Nixon.

But source anonymity can be highly controversial, and there is no single standard way the issue is handled, even at established news outlets. The most respected outlets have very well-developed procedures, which include corroborating the information through other sources—both human and documentary—and closely scrutinizing the motives of each source.

Even the most careful checker is subject to the human foibles of credulity, however, mostly out of the desire to report a compelling story. And investigative targets use this doubt about individual anonymous sources to paint entire narratives as false, as the Trump Administration continually does with cries of “fake news.”

Even so, unnamed sources form a vital part of the reportage on this administration, particularly since the White House has receded further and further into itself, communicating less and less with media outlets that aren’t Fox News. While Trump himself can be counted on to respond fairly often to questions shouted from a press scrum, these answers don’t hold much in the way of actual information, and are often disconnected from the policy emanating from his own staff.

For this reason, reporters who want to understand the workings of the White House are forced to go to presidential aides, who are usually unwilling to be quoted directly. Blues certainly see it as a testament to the dysfunction of the administration that there is such a flood of damning information coming from the White House from sources who seem eager to feel better about their roles in the administration by playing the secret “adult in the room,” telling us that the outrageous tweet from Trump was an exaggeration and that official policy will be more measured.

The September ’18 New York Times op-ed from an anonymous Trump staffer is the pinnacle of this phenomenon. It’s no surprise that the administration was incensed when this dropped, insisting that it was both fake news and evidence of the oft-cited “Deep State” conspiracy.

The doubt created by source anonymity, though, is the prime reason why media literacy is so vital right now, at a time when it’s getting harder and harder to decipher who is trustworthy in the media landscape.

It’s becoming increasingly clear that media literacy education must be emphasized within our public education system. It can help news consumers navigate issues as simple as distinguishing between straight news and news commentary, and as complex as teasing out the agendas of the various sources used in an article.

Without this sort of critical educational emphasis, it becomes far too easy for each side to spin the story in their chosen direction, and for a credulous public to accept these narratives without question, especially when they comport with their own preconceptions.

Beyond the question of media literacy is the even more difficult one of legal literacy. Statutes and regulations are hard enough to understand even without the added layer of judicial interpretation. The issue of whether a sitting president can or should be indicted is a classic example of a topic that is poorly understood enough for each side to be able to attach any significance they’d like to it.

This Vox report that tries to dig into the legal weeds cites a consensus view among legal experts (mostly law professors) that “the Mueller report provides a road map for prosecuting Trump for obstruction of justice, but stops short of this finding because of legal doubts about indicting a sitting president.”

There are several legal questions even beyond that one, questions that are tough for lay people like myself to understand. Does intent to commit a crime always itself constitute a crime? Obviously attempted murder is a crime with which we’re all familiar, but is this intent damning across the board for things like, say, theft or perjury? Did Trump’s order of Don McGahn to fire Mueller, which itself would certainly (to blues at least) seem like an act of obstruction of justice, constitute a crime, or did McGahn, by refusing to carry out this order, literally save Trump from himself?

It’s also confusing that the Mueller report declines to support charges against the participants in the infamous “Trump Tower meeting,” where Donald Trump Jr., Jared Kushner and Paul Manafort tried to get information about Hillary Clinton from Russian sources.

The Hill quotes the report in saying, “On the facts here, the government would unlikely be able to prove beyond a reasonable doubt that the June 9 meeting participants had general knowledge that their conduct was unlawful. The investigation has not developed evidence that the participants in the meeting were familiar with the foreign-contribution ban or the application of federal law to the relevant factual context.”

As an uneducated layperson, I clearly had a very different understanding of the application of the law. I assumed that not understanding a law does not excuse one’s responsibility to follow it. But I can also imagine a thought-process in which an investigator might cut someone some slack, for thinking that receiving this kind of information from whatever source was standard practice among campaigns, and especially a group without political experience like that which comprised Trump’s campaign.

(My Yale Law-educated brother, who is steeped in campaign finance regulation law, did explain that within that realm of the law, breaking regulations for lack of understanding relegates the infraction to civil status, while knowingly breaking them is treated criminally.)

But this sort of distinction is both hard to parse and quite important for understanding culpability, which means that it naturally creates dueling narratives. As does the issue of whether it’s okay, in a legal sense, to lie to the public. As NBC lays out, the Trump administration, and the president himself, had shifting stories about this meeting, and it appears in hindsight that Trump Sr. dictated a misleading statement about it. Does this put him in legal jeopardy? I haven’t the slightest. People lie to the press all the time. But there are certainly libel and slander laws that have civil repercussions if it’s proven you’ve harmed someone else in so doing. I’m sure there are entire classes in law school that explore this issue to an extent that is completely opaque to you or me.

Finally, I think it’s worth addressing some questions around our expectations of government leaders, particularly the president. For essentially our entire history, the strength of our democracy has relied on adherence to certain precedents and norms. Presidential candidates releasing tax returns is probably the best-known example of this, but there are countless other norms and informal traditions which we assume that our highest leaders will respect.

Trump still has not isolated himself financially from his businesses, such that he knows that he’s still materially gaining from foreign dignitaries who do business with his hotels. It’s no coincidence that so many outside entities with business before the administration have chosen Trump properties when seeking accommodations.

Perhaps it took this administration to lay bare the vulnerabilities that have always existed in our system of government, a system that places so much trust and power in the office of the president. The foreign emoluments clause within the Constitution is an example of both the hazy legalese of our system and the lack of real enforcement teeth with which to sanction a president who flouts these norms. (There are in fact three different clauses in the Constitution which come up on Wikipedia when one searches for the phrase “emoluments clause,” a phrase that has been tossed about freely by the press.)

I think we should declare an end to this ambiguity, and formally assert that the president must disclose his or her tax returns and divest completely from business interests, as well as deciding decisively whether a sitting president can be indicted for a crime. (Hint: Yes, of course they can, otherwise we have one individual in the country who is literally above the law! For no amount of time—even if it ends—should any one person have that kind of power.)

We’re in an absolute mess right now, and it’s one literally of our own making. We have elected a president who seems to have no regard for the sorts of conventions of our democracy that have made us the strongest nation in the world for the past several generations. But by even some well-thought-out definitions, what he and his administration have done is possibly entirely legal.

I believe, along with other Democrats, that Trump has stretched the law to the breaking point, and hurt our country irreparably in the process. But this president feeds on ambiguity, and because it has served our previous interests to extend latitude to his office, we have looked the other way. We can do so no longer, especially when that ambiguity sets up direct conflict between two interpretations of the story.

Like many others, I find it difficult to imagine a world in which nearly anything this president has done in the context of this scandal “is okay.” But I recognize that we cannot simply define it as “not okay,” rather it must be officially made illegal.

Photo: Medill DC/Flickr

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5 thoughts on “Mulling Over the Mueller Report”

  1. The problem I have with both of these partisan views of the Mueller report is that so much of what is argued here is prefaced on what Democrats and Republicans “believe” about their different versions of truth. It’s kind of an abnegation of our philosophy of justice where the accused is assumed innocent until proven guilty beyond a reasonable doubt by the evidence.

    Under that principle, many guilty defendants actually do go free and the indictment is expunged from any public record. Our society has always accepted that it’s better a guilty person go free than an innocent person be found guilty and wrongly punished.

    The fact that so many partisans refuse to accept evidence and lack thereof as the final determination of the investigation is a testament to how polarized the polity is into their opposing comfort zones. I’m not sure that two versions of the truth ever come to an acceptable consensus, no matter how much we talk to each other. Seems to me some people are going to have to let go.

    1. I definitely agree that we won’t see a consensus on this, maybe even in our lifetimes, though I imagine history will be a harsh judge on this administration. I also think it’s important to understand a few things about reasonable doubt. It’s the standard for conviction on a criminal charge. It’s certainly not the standard for indictment, nor is it even the standard for conviction in a civil case. We have not had a full impeachment hearing, nor a Senate trial, within which to apply that legal standard, but there seems to be, as Mueller has asserted, ample evidence for indictment, with the only real obstacle being his deference to the (I believe questionable) legal interpretation that one cannot indict a sitting president.

      1. To add to that, I don’t think it’s questionable that the DOJ has determined we don’t indict a sitting POTUS, especially for acts prior to his or her election. Impeachment is the only route because regime change is a political act, not a legal one. We don’t negate the deliberate votes of a significant share of the polity in a democracy without inviting serious chaos. (And that’s why we establish the rules beforehand – the EC, the SCOTUS, the line of succession – and let them play out.) At its origins, the law is made through politics, not vice-versa. To impeach requires overwhelming public support and that’s never going to happen under these current conditions.

  2. That’s one way of interpreting the result. There was no criminal trial and no indictment for a crime. But I’m not convinced that was Mueller’s rationale and he certainly hasn’t confirmed what his rationale was. As a betting man, and we are merely trafficking in probabilities here concerning the unknown, it appears to me that Mueller punted this ball as far from his goal line as possible and then walked off the field. That’s not the action of a person who thinks there was a Hail Mary prayer of an indictment or conviction, especially a political one. He’s wiped his hands clean of the whole matter. Why? If there was a chance he could have been the instrument of regime change, you can bet he would have stayed the course, along with his litigation team – it would have been career making.
    So I’m betting there will be no political trial in the House because of the risk of an electoral disaster. So, that puts us on the path of moving on.

    When one tries to kill the king, one had better be successful, because the king who survives will be more powerful and vindictive than before. This was a foolish gambit from the start and investigations into Trump operatives should have been conducted as sealed FBI investigations in order to entrap the guilty parties, like those Russian hackers we indicted without result.

  3. David Ludescher

    Randy,

    I think Mr. Harrington makes an excellent point. After months and months of investigation, Mueller did not enough evidence of collusion to make a case. Can’t we let the report stand on its own? We all know that an impeachment, and a Senate trial will all be for show and grandstanding. It will further divide the country’s opinion. It also calls into question the veracity of Mueller’s investigation.

    I see the obstruction of justice charge as a throwaway charge. You can’t obstruct justice when the result shows no proof of wrongdoing. A man, especially a president, should be able to defend himself against both true and untrue allegations.

    There are lots of reasons to not like Trump. But, to rely on the Mueller report as your strongest evidence of why he needs to be impeached weakens, not strengthens, the case for why I should dislike Trump.

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