Friday, April 19, 2019

What the Mueller Report means, Part I

The very narrow election of Donald Trump as President of the United States represented a collapse of our political system and a catastrophe for the nation that has few precedents.  A political neophyte who had made his reputation as a developer--despite numerous bankruptcies--and a television star wiped the floor with a gaggle of traditional Republican candidates and defeated a quintessential establishment Democrat.  Trump lacks all the intellectual and personal qualities that a President (or, for that matter, the leader of any other large organization) requires. He is almost impossible to work with, making his administration one big revolving door.  He is a paranoid and a megalomaniac, who believes that only he can solve the nation's problems--yet he lacks the concentration to understand what those problems are, what might solve them, and what might make them worse.  That is why the deficit, the trade deficit, and the rate of illegal immigration--three of his signature issues--are all getting worse on his watch.  He also lacks any understanding of how the US government is supposed to function and doesn't really understand American legal traditions.  In foreign policy, he has no use for our traditional allies and admires a string of dictators.  Meanwhile, he enjoys flaunting liberal convention wisdom and race, gender, and just about everything else.

For all these reasons, most liberals, including the liberal media elite (yes, it exists), have not accepted the idea that he could be President and have assumed, really, that he must somehow be forced to leave office before his term is  up.  They have counted, essentially, on the federal bureaucracy, as represented by Robert Mueller and the FBI, to make this happen--a fantasy oddly parallel to the Trump partisans' view of the Deep State.  They are now furious that Mueller did not recommend that the President be indicted and even more furious at William Barr for claiming that Mueller exonerated him.  I intend to use Mueller's report to examine these questions in two posts, following the report's organization.  The first volume of the report deals with Russian interference in our election and the publication by wikileaks and elsewhere of emails hacked from Clinton campaign aids and the Democratic National Committee.  The second volume examines the question of obstruction of justice, and I will leave it for next week.

The first volume begins with a long account of the Russian government's intervention in the US election, involving two Russian agencies, the IRA (which seems to specialize in computer crime of all kinds) and the GRU.  Their activities included hacking into the DNC and various Democratic Party officials, trips by IRA officials into the US to gather intelligence, a massive, multifaceted social media campaign, especially on Twitter, both to support Trump and disrupt Demoratic campaigns, the active recruitment on social media of pro-Trump Americans to help in their activities, and attempts to organize or affect campaign rallies.  Mueller's very thorough investigation discovered links between this effort and the Trump campaign.  First, Trump campaign workers such as Michael Flynn, Kellyanne Conway, and Trump's two sons Eric and Donald Jr. linked and retweeted numerous posts that the IRA made surreptitiously on social media.  Secondly, "starting in June 2016, the IRA contacted different U.S. persons affiliated with the Trump Campaign in an effort to coordinate pro-Trump IRA-organized rallies inside the United States." and those persons worked with them.  However, in neither case did Mueller's investigation find any evidence that these Trump officials knew that they were retweeting material produced by the Russians or dealing with Russian agents.  That left them without any basis even to consider charges against them on this point.

A second possible source of criminal charges involved the famous June 9, 2016 meeting at Trump Tower involving Donald Trump Jr., Jared Kushner, Paul Manafort, and two Russians, one a woman visiting from Russia who had promised significant dirt about Hillary Rodham Clinton.  It turns out, based on testimony from various participants, that we have tended to exaggerate the significance of what went on there.  The dirt had nothing to do with hacked emails. The woman claimed that three prominent anti-Russian Americans--led by William Browder, a businessman who is more or less responsible for the Magnitsky Act, named after a business associate of his--had stolen money in Russia and given it to the Clinton campaign.  She could not however back up those charges, and no evidence appears to have changed hands, nor did the Trump campaign ever make such charges.  The Special Counsel's team looked carefully at campaign finance statutes and concluded that although Donald Trump Jr. might have illegally accepted a foreign contribution by agreeing to take the meeting so as to receive such information, he should not be indicted because he evidently did not understand that this might be illegal, and thus had not "willfully" violated the law.  That position has rightly drawn some criticism, since Americans generally learn that ignorance of the law is no excuse. I on the hand would have to conclude that since the woman did not produce any valuable information and the campaign got nothing out of the meeting, a prosecution would have been gratuitous.

Proceeding chronologically, we now come to the role of Trump campaign associates--specifically Roger Stone and Jerome Corsi--in working with Wikileaks during the summer of 2016 to encourge the release of more stolen emails.  Here I appear to have been under a misapprehension regarding the law.  I thought that I had researched this issue last year and discovered that publishing stolen computer material such as emails was in itself a crime.  Clear evidence had emerged to show that Stone, and probably Corsi as well, had been talking to Wikileaks about publication of what they had, which would have made them co-conspirators in that particular crime even if they hadn't hacked the material.  But it seems now that mere publication is NOT a federal crime, although it's a state crime in some jurisdictions.  We don't know what Mueller's team decided about all this, however, because most of the discussion of Stone, Corsi and Wikileaks, beginning on p. 51 of volume 1 of the report, is blacked out, under the heading, "Harm to Ongoing Matter."  That suggests that the investigation of these issues is continuing and that other prosecutors may bring more charges.  We don't know that either, because a parallel section of the report in the midst of a later portion of it that deals with decisions to bring, or not to bring, cases, is also blacked out.  The failure to make these portions public seems to me to be the biggest weakness in the report, and I hope Congress will be able to clear it up.

Other apparently serious matters turn out to be illusory.  Jeff Sessions did lie when he told a Senate Committee that he had no Russian contacts during 2016, but it turns out that the contacts he had with Ambassador Kislyak were brief and almost surely inconsequential.  Jared Kushner's post-election suggestion to Kislyak that the President-elect's team might communicate with Moscow through Russian channels related to one very specific issue and does not seem very sinister.  Michael Flynn did ask the Russians not to retaliate against sanctions the Obama Administration imposed on Russia after the election, and Putin in fact did not do so--but that would at worst constitute the very technical, almost never prosecuted crime of violating the Logan Act, which forbids private citizens from conducting diplomacy.  What remains rather interesting is that Flynn would ruin his life by lying about this.

We already knew that Trump campaign officials including Manfort, Carter Page, and various others had extensive contacts with Russians, many of them linked or even in the government, during the campaign.  We also know that the Russians obviously wanted Trump to win and looked forward to doing business with him in the future.  All of that, like so much else about Trump, should have raised serious questions about his candidacy--but it didn't.

Oddly enough--and I haven't seen anyone else mention this--the decision not to seek prosecution on any of these grounds strikes me as somewhat similar to James Comey's decision not to prosecute Hillary Clinton for using a private email server.  Both cases arguably involve technical violations of the law, but in neither case can anyone claim that a serious crime was committed.  We shall see next week that parallel questions surround the vexing issue of obstruction of justice by the President.  I shall wait until then to summarize my thoughts about the whole episode and its significance for the future.

2 comments:

Bozon said...

Professor
Fascinating stuff.
I thought this was especially special, having looked at the Logan Act on Wikipedia:

"...Michael Flynn did ask the Russians not to retaliate against sanctions the Obama Administration imposed on Russia after the election, and Putin in fact did not do so--but that would at worst constitute the very technical, almost never prosecuted crime of violating the Logan Act, which forbids private citizens from conducting diplomacy. What remains rather interesting is that Flynn would ruin his life by lying about this...." DK

One interesting question in this age, for me at least, is this: Is there such a thing, any more, as diplomacy, at least in the old 18th Century sense meant, and intended, under the Act?

I rather doubt it. My own view is that the Internet and WWW has rendered what waws once meant by diplomacy obsolete, except under special circumstances.

If trying to influence foreign governments is the main criterion, then certainly the NYT is guilty daily. Your blog, and mine, are very small fish in such a sea of foreign influence peddling.

If I am guilty of trying to diplomatically influence the Chinese or the Russians, it is to have them not like me very much! My blog has no effect on their policies whatsoever. I am sure of that.

Sadly, your blog is in a similar situation, even though you write for Time, and might come under the Logan Act that way!

All the best

Ed Boyle said...

We can only be glad to move on. If each time a president is elected two or more years of investigation must be taken to be certain the Russians had no contact with anyone, no conceivable influence on the results, however vague would be difficult. The world has become very complicated andintertwined. I suspect if this investigation was broadened to question the influence of any foreign governments or citizens then it would be more fruitful. There is no no technical state of war or declaration of war or law aginst consorting with the enemy, etc. There is however a contrived 'red scare'without any 'reds'. The Russians were never defeated in war by us and included in our military alliances, therefore they are defacto the enemy. A particular egoism is needed to see things this way. GW Bush's attitude was particularly despised by liberals and decribed as 'My way or the highway'. Religious fundamentalists think similarly. People are then made subjects of witch hunts when they break internal rules of conduct and blamed of consorting with the devil, being abject sinners, etc. As Trump was from outside the political establishment he did not understand the unspoken, subtle cutural rules. Russia is satan. Peace with them is our end. As the whole establishment is financed by permanent military adventures this is rule number one. He naively assumed that a peace dividend, say a trillion per year, spent liberally on infrastructure, similar to the german or japanese economies with little military, but great economies, would be a great idea. Give peace a chance. But the inquisition got awakened, torture chambers and all. But having a half Russian wife I see what they mean. It is like that movie where the women's husband, an astronaut, is replaced after a routine flight, by an alien. Something strange and evil can be felt when she lets down her guard. Maybe it is demon possession by the orthodox religion or real aliens from another dimension centered around a multidimensional gate in the basement of the kremlin. Return of the body snatchers depicted this well founded suspicion. But I have my guard up as a God fearing blue blooded All American Boy. I think Trump's consorting with slavic women contaminated his brain. Perhaps exorcism and ridding him of this slavic female influence would help.

Humour aside. As a democrat and a liberal, openness to foreign peoples, cultures is supposedly a given but it seems this does not go beyond financial interests of lobbyists, party donors, ideological dinosaurs. I recall reading of origins of WWI. The old men like Clemenceau leading the governments had ancient axes to grind against each other. The huns, etc. Prejudicial hatreds of the fathers'generation dies out hard if at all. Perhaps only a direct conflict with much bloodletting on both sides would do the trich as in our civil war. Prxy wars are so hypocritical. The mueller investigation is a proxy war by the Military Industrial Complex of the anglo saxon global empire in decline.

Obviously Trump is uncouth, arrogant, ill spoken, egoistic, impatient. He is an upstart party basher of the establishment. Bernie was eliminated by cheating and took it well. Trump does not go gently into that good night. Like Clinton, he just keeps on going strong. You just gotta admire some of these guys. Brash, charmeurs, ego to the skies. It seems to be not deep state but a sense of consensus as in british gentry or japan. I recall end line of Hedda Gabler. 'People don't do such things'. She had just shot herself instead of accepting permanent oppression of middle class 19th century sweden. Revolution comes one way or another.