//  4/19/19  //  In-Depth Analysis

Cross-posted from Dorf on Law

Attorney General Barr, President Trump, and their FoxNews amen chorus spent several weeks spinning what turns out to be a substantially fictional version of even the redacted Mueller Report. Now the rest of us weigh in. Here I'll offer both a substantive and prescriptive take for everyone who regards Trump's presidency as a disaster.

My bottom line is this: The Report could but won't be used as the basis for impeachment. Meanwhile, it leaves two fundamental questions unanswered. First, why, both during and after the campaign, did Trump repeatedly deny Russian efforts to interfere with the election, when he must have been well aware of them? Second, if they had nothing to hide, why did so many of Trump's close associates lie to Mueller's team and why did Trump--whether or not he committed acts that are chargeable as obstruction under DOJ policy--repeatedly try to undercut the investigation?

I don't have definitive answers to those questions. I do have an important takeaway, however: even the most innocent explanations should be EXTREMELY damaging to Trump.

Before coming to the key points, I want to address two issues that could be distractions.

(1) There is a natural tendency to focus on titillating or lurid details. When the Starr Report was released, its readers were understandably fascinated/appalled by the following passage: "At one point, the President inserted a cigar into Ms. Lewinsky's vagina, then put the cigar in his mouth and said: 'It tastes good.' "

But sometimes a cigar is just a cigar. That particular detail garnered disproportionate attention relative to other less sexual details that were much more relevant to whether Clinton had committed perjury or obstruction of justice.

So far, it appears that the juiciest detail in the Mueller Report is that when Trump learned of Mueller's appointment as special counsel, he “slumped back in his chair and said, ‘Oh my God. This is terrible. This is the end of my Presidency. I’m fucked.’ ”

The use of the F-Bomb will no doubt titillate, but this particular passage should be a nothingburger. Reading down a few lines, we see Trump saying the following: “Everyone tells me if you get one of these independent counsels it ruins your presidency. It takes years and years and I won’t be able to do anything. This is the worst thing that ever happened to me.”

Thus, Trump's statement that his presidency was over and he was fucked was not an admission of guilt. Rather, it was a prediction about the impact of the investigation itself, regardless of its ultimate findings. Ignore the F-Bomb.

(2) Since AG Barr released his sub-four-page summary of the Report and especially in response to Barr's completely unnecessary spinathon of a press conference two hours before the Report's release, prominent Democrats have accused Barr of partisan hackery. Side-by-side analysis of Barr's spin and the actual Report largely vindicates that accusation, especially with respect to obstruction of justice.

Nonetheless, Trump critics mostly should not focus on Barr, who is a distraction from Trump. Every conversation about whether Barr accurately summarized the Report is a conversation that could have been about the content of the Report.

* * * * *

So much for the distractions. Let's move on to the main event.

One could read the Mueller Report and conclude that Trump's repeated mendacity and attempted, though unsuccessful, obstruction of justice warrant impeachment. I assume, however, that for political reasons, the Democratic leadership will not pursue impeachment. There will, however, at least be congressional efforts at further investigation. Based on the Report, what, exactly, should be investigated?

That brings me to what I called above the two big unanswered questions the Report raised. The Report details extensive and repeated efforts by Russian agents to support and reach out to the Trump campaign. It reports numerous instances of Trump campaign officials--including Donald Jr.--being intrigued by offers of cooperation, but it ultimately concludes:

Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the campaign expected that it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government . . . . (emphasis added).

So why did Trump, both during and after the campaign deny that Russia assisted his campaign?

We can pretty quickly dispose of one answer: It was not because the Russian efforts were known by others in the campaign but not Trump himself. For example, on pages 53 and 54 of Volume 1 of the Report, we read that both Paul Manafort and Rick Gates talked with Trump about the timing of WikiLeaks releases. Trump actually tells Gates what's coming. Trump's dictation of the bogus adoption-related cover story for the infamous Trump Tower meeting and the very large number of other contacts by people very close to Trump--including Donald Jr.--make it simply wildly implausible to think that Trump was unaware that the Russians were actively trying to elect him president. And that's not to mention "If you're listening, Russia . . . ."

So why did Trump repeatedly deny that there was proof of Russian interference when he knew otherwise?

Vanity is a partial answer, but it mostly only explains some of Trump's post-election conduct. Yes, after Trump was elected, he wanted to minimize the extent of Russian interference, because he thought that if the Russians were given any credit, that would undermine the impressiveness of his "historic" victory. But before the election--when Trump viewed the campaign as a giant informercial that would be useful to his business even in the likely event that he lost--there was less to be gained from denying Russian interference.

So why did Trump repeatedly deny that there was Russian interference? I can think of four possibilities, none of which shows Trump in a remotely positive light:

1) Trump participated in or knew of participation by members of his campaign (including Donald Jr.) in an illegal conspiracy with Russian agents. Just because Mueller did not find sufficient evidence of a conspiracy to bring a case that he thought he could prove beyond a reasonable doubt does not mean that there wasn't such a conspiracy. This possibility would make the most sense of the various Trump underlings who lied to Mueller's team.

2) Trump was either trying to curry favor with Putin for personal gain (such as the Trump Tower Moscow deal) or afraid that Putin would release damaging information about Trump (whether in the form of the "pee tape" or, more likely, financial shenanigans by Trump with the aid of Russian money).

3) Trump simply has a natural affinity for strongman dictators. He sensed in Putin a kindred spirit and thus wanted to impress Putin.

4) Trump's ostensible policy rationale -- seeking better relations with Russia -- motivated him not to want to antagonize Putin by calling Putin out for his election interference. This is the most innocent of the possible explanations, but if true, it shows Trump to be incredibly naive. It's also wildly inconsistent with Trump's portrayal of himself as a tough negotiator or general tough-guy.

In a well functioning democracy, leaders of the opposition party would have a chance to put the question to the president or at least his spokesperson why Trump for so long falsely claimed there was no Russian interference when he obviously knew better, and the president or his spokesperson would have to give an answer or face consequences. However, the US is not currently a well functioning democracy, as you can probably infer from the fact that Donald Trump, a mendacious narcissistic bigot who lost the popular vote by 3 million votes, is president.

Accordingly, instead of digging into the question why Trump for so long and to this day gives Russia a pass, we can expect the talking heads to intone things like this: "Democrats say the Attorney General mischaracterized the Mueller Report, while Republicans say the Report exonerates the president and his campaign. Now a story about your health. Could French Fries be good for you? One Louisiana chef with no relevant knowledge or expertise thinks so."


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