Deep State

by James B. Stewart

  For the first time in years—since the summer before the election—Trump was out from under the “cloud” of potential criminal prosecution. But the president seemed more angry than relieved and made clear that the Mueller report was likely to be just the opening salvo in a renewed attack on the people he blamed for the investigation.

  As he was boarding Air Force One that Sunday for his return from a weekend at Mar-a-Lago, Trump made a brief statement to reporters:

  So, after a long look, after a long investigation, after so many people have been so badly hurt, after not looking at the other side where a lot of bad things happened, a lot of horrible things happened, a lot of very bad things happened for our country—it was just announced there was no collusion with Russia. The most ridiculous thing I’ve ever heard.

  There was no collusion with Russia. There was no obstruction, and—none whatsoever. And it was a complete and total exoneration. It’s a shame that our country had to go through this. To be honest, it’s a shame that your President has had to go through this for—before I even got elected, it began. And it began illegally. And hopefully, somebody is going to look at the other side. This was an illegal takedown that failed. And hopefully, somebody is going to be looking at the other side.

  So it’s complete exoneration. No collusion. No obstruction.

  Rudy Giuliani and Jay Sekulow, Trump’s primary lawyers, called the CNN anchor Wolf Blitzer that afternoon. The Mueller report “completely exonerated the president, it is quite clear, no collusion of any kind, including the entire Trump campaign, which raises the question, why did this ever start in the first place?” Giuliani said.

  As to the obstruction, “the key there is that the attorney general and the deputy attorney general made the conclusion that you don’t have obstruction when there’s no underlying crime,” Sekulow continued. “I think that we’ve said from the outset that this was a situation where there was no collusion, there was no obstruction, and now we have the weight of the Department of Justice agreeing with us.”

  Citing the fact that Mueller stated explicitly that the report did not “exonerate” Trump, Blitzer asked, “What’s your reaction to that?”

  “If you go on to the next two paragraphs, Wolf, the attorney general does kind of a brilliant analysis of it,” Giuliani answered. “He says that he and Deputy Attorney General Rod Rosenstein have concluded that the evidence is not sufficient to establish the president committed obstruction of justice. Then he goes even further and points out that basically under settled law, it’s almost impossible to have obstruction of justice if there’s no underlying crime. A brilliant lawyer-like analysis. Then he concludes with a very strong statement, ‘in cataloging the president’s actions, many of which took place in public view, the report identifies no actions that in our judgment,’ that’s Rosenstein and Barr, ‘constitute obstructive conduct.’

  “That is a complete exoneration by the attorney general and Rod Rosenstein.”

  The reality was far more complex, as became clear from a letter Mueller sent to Barr on March 27 and elaborated on in a phone call. For the tight-lipped Mueller to criticize Barr, someone he’d known for thirty years, and in writing, was an extraordinary step and came as a shock to lawyers at the Justice Department.

  As we stated in our meeting of March 5 and reiterated to the Department early in the afternoon of March 24, the introductions and executive summaries of our two-volume report accurately summarize this Office’s work and conclusions. The summary letter the Department sent to Congress and released to the public late in the afternoon of March 24 did not fully capture the context, nature, and substance of this Office’s work and conclusions. . . . There is now public confusion about critical aspects of the results of our investigation. This threatens to undermine a central purpose for which the Department appointed the Special Counsel: to assure full public confidence in the outcome of the investigations.*

  On April 18, Barr addressed the nation from the Justice Department, with Rosenstein standing impassively just behind him. “I am committed to ensuring the greatest possible degree of transparency concerning the Special Counsel’s investigation, consistent with the law,” Barr stated, announcing the release of a redacted version of the report.

  Despite the warning in Mueller’s letter, Barr seemed even more intent on clearing the president. This time he didn’t mention that Mueller had declined to exonerate Trump on the issue of obstruction. And, without the benefit of any testimony by the president (because Trump had refused to testify about obstruction), Barr leaped to what seemed extremely sympathetic conclusions about the president’s cooperation and state of mind.

  “President Trump faced an unprecedented situation,” Barr said. “As he entered into office, and sought to perform his responsibilities as President, federal agents and prosecutors were scrutinizing his conduct before and after taking office, and the conduct of some of his associates. At the same time, there was relentless speculation in the news media about the President’s personal culpability. Yet, as he said from the beginning, there was in fact no collusion. And as the Special Counsel’s report acknowledges, there is substantial evidence to show that the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks.” Barr continued, “This evidence of non-corrupt motives weighs heavily against any allegation that the President had a corrupt intent to obstruct the investigation.”

  Barr had now had two occasions on which to promote his view of Trump’s innocence before the public had a chance to actually read the Mueller report. His views of Trump’s innocence were magnified by the media echo chamber dedicated to the Trump cause. Just how far apart Barr’s views were from Mueller’s—as well as why Mueller would have felt compelled to write his letter complaining about Barr’s characterizations—was abundantly clear once the Mueller report itself was available.

  Mueller demolished the notion propounded by Barr and the president’s lawyers that proving obstruction requires the existence of an underlying crime—the heart of the president’s defense.

  Quoting a series of controlling Supreme Court cases, Mueller laid out precisely the opposite: that “an improper motive can render an actor’s conduct criminal even when the conduct would otherwise be lawful and within the actor’s authority.”

  For good measure, Mueller added, “Obstruction-of-justice law ‘reaches all corrupt conduct capable of producing an effect that prevents justice from being duly administered, regardless of the means employed.’”

  “An ‘effort to influence’ a proceeding can qualify as an endeavor to obstruct justice even if the effort was ‘subtle or circuitous’ and ‘however cleverly or with whatever cloaking of purpose’ it was made.” “The verbs ‘“obstruct or impede” are broad’ and ‘can refer to anything that blocks, makes difficult, or hinders.’”

  Mueller’s position makes perfect sense: the legal system can only function if it operates unimpeded by the myriad ways a defendant might seek to improperly influence the outcome. That’s as true for the innocent as for the guilty. Subjects of investigations may have many motives to conceal behavior that, while it may not be criminal, is nonetheless embarrassing, dishonest, or greedy. Countless defendants have been prosecuted for and convicted of obstructing justice where there was no underlying criminal activity.

  Trump would seem a textbook case, because the ways his campaign benefited from Russian interference undermined the legitimacy of his election victory, giving him a motive to conceal it.

  Because Trump refused to testify except through limited written answers to questions, he had minimal risk of committing perjury. Not only is perjury a crime, but lying is often evidence of a guilty state of mind. Trump’s sworn, written answer about Trump Tower Moscow was hardly candid, and hard to square with Cohen’s testimony. At best, Trump’s statement could be deemed mislea
ding.

  And apart from that sworn statement, Mueller’s report documented scores of false public statements by Trump bearing on aspects of the investigation, from denying that he’d ever told Comey that he wanted “loyalty” or asked him to “let . . . go” of the Flynn case, to claiming that he fired Comey over his handling of the Clinton email case, to denying that he tried to have Mueller fired—to name just a few examples. While not perjury, they indicate Trump was determined to conceal embarrassing and potentially damaging truths.

  Besides what is in Mueller’s voluminous report, there remain questions about what Mueller did not include, especially any mention of the tumultuous days after Comey was fired, when Rosenstein proposed secretly recording the president. Mueller heard testimony about those events. Yet the report makes no mention of them. It is silent about what transpired between Rosenstein and Trump in their one-on-one meetings, including the flight to Florida. Each time, against seemingly long odds, Rosenstein emerged with his job intact. What did he offer Trump in return? What threats, explicit or implied, did Trump bring to bear? Rosenstein’s interactions with the president might well have constituted yet another potential obstruction count.

  “The only commitment I made to President Trump about the Russia investigation is the same commitment I made to the Congress: so long as I was in charge, it would be conducted appropriately and as expeditiously as possible,” Rosenstein told The Washington Post. “Everyone who actually participated in the investigation knows that.”

  Many of Trump’s reckless efforts to thwart the investigation were unsuccessful, thanks to the determination of Priebus, McGahn, and others. But in Rosenstein’s case, the argument can be made that Trump got the result he wanted: exoneration on collusion with Russia and a swift verdict of not guilty on obstruction—a verdict delivered in tandem by Barr, a longtime apologist for and defender of Trump, and Rosenstein.

  Failure to reach a decision on obstruction was no doubt the most controversial aspect of Mueller’s report. Barr himself said he was taken aback when he learned of Mueller’s position during their March 5 meeting.

  Because the Justice Department has ruled that indicting a sitting president is unconstitutional, Mueller explained, “Fairness concerns counseled against potentially reaching that judgment when no charges can be brought. The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor’s judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.”

  Mueller might not have concluded that Trump committed a crime. But the conclusions he did reach, set forth in the introduction to his 448-page report, are devastating in their own right:

  Our investigation found multiple acts by the President that were capable of exerting undue influence over law enforcement investigations, including the Russian-interference and obstruction investigations. The incidents were often carried out through one-on-one meetings in which the President sought to use his official power outside of usual channels. These actions ranged from efforts to remove the Special Counsel and to reverse the effect of the Attorney General’s recusal; to the attempted use of official power to limit the scope of the investigation; to direct and indirect contacts with witnesses with the potential to influence their testimony.

  The report continues, “The President’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests.”

  In considering the full scope of the conduct we investigated, the President’s actions can be divided into two distinct phases reflecting a possible shift in the President’s motives. In the first phase, before the President fired Comey, the President had been assured that the FBI had not opened an investigation of him personally. The President deemed it critically important to make public that he was not under investigation, and he included that information in his termination letter to Comey after other efforts to have that information disclosed were unsuccessful. Soon after he fired Comey, however, the President became aware that investigators were conducting an obstruction-of-justice inquiry into his own conduct. That awareness marked a significant change in the President’s conduct and the start of a second phase of action. The President launched public attacks on the investigation and individuals involved in it who could possess evidence adverse to the President, while in private, the President engaged in a series of targeted efforts to control the investigation. For instance, the President attempted to remove the Special Counsel; he sought to have Attorney General Sessions unrecuse himself and limit the investigation; . . . and he used public forums to attack potential witnesses who might offer adverse information and to praise witnesses who declined to cooperate with the government.

  Quoting Supreme Court precedent, the report concluded that no person “in this country is so high that he is above the law.”

  Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President’s conduct. The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, 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. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

  Mueller left it to Congress and ultimately the American people to resolve those “difficult issues.”

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  MAY 29, 2019, was Robert Mueller’s last day as special counsel. He marked the occasion with a televised statement that lasted less than ten minutes. He read from a prepared script and provided a succinct synopsis of his report. He reiterated that “if we had had confidence that the president clearly did not commit a crime, we would have said so.” Despite burning public curiosity, he said he would have nothing further to say about the matter. “The report is my testimony,” he said. “I would not provide information beyond that which is already public in any appearance before Congress.” He declined to take any questions: “I do not believe it is appropriate for me to speak further about the investigation or to comment on the actions of the Justice Department or Congress.”

  By then, it had dawned on Trump that the Mueller report was not the complete exoneration he’d claimed but rather a devastating and detailed critique. “I think Mueller is a true Never Trumper,” Trump said while on the South Lawn of the White House before leaving on the Marine One helicopter. As for Mueller’s team of lawyers, they are “some of the worst human beings on Earth.”

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  WHETHER TRUMP COMMITTED a crime or an impeachable offense or engaged in conduct unfitting for a president pledged to uphold the law and Constitution are serious questions. But others, too, remain subjects of intense public debate and interest. With the delivery of the Mueller report, the inspector general’s various investigations into conduct by the FBI and the Justice Department, and multiple investigations by both branches of Congress, there’s ample evidence to answer many of these:

  Did Hillary Clinton escape prosecution in the email investigation because the FBI favored her over Donald Trump?

  The FBI did an exhaustive investigation, as did the inspector general. Classified information was transmitted over Clinton’s personal email accounts and through her servers, although there’s no evidence it was obtained by foreign powers. But there wasn’t any evidence that that was Clinto
n’s intent, or even that she knew about it.

  Although a “gross negligence” standard might have enabled a prosecution with a lesser standard than criminal intent—and the FBI’s Jim Baker argued that position initially—no case had ever been brought in such circumstances. Multiple FBI lawyers and agents and career Justice Department officials, including the much-revered and independent David Margolis, thought charging Clinton would amount to “celebrity hunting,” in Margolis’s words.

  As the inspector general noted, the former attorney general Alberto Gonzales was not charged in similar circumstances. It might not have been necessary to go quite so far as to say “no reasonable prosecutor” would bring such a charge, as Comey did. But it’s hard to imagine a jury would convict Clinton under such circumstances. And bringing a charge on such flimsy grounds would likely have ended her candidacy when she was the front-runner, sowing electoral chaos and possibly handing the nomination to her rival Bernie Sanders. The FBI could rightly have been criticized for a near-unthinkable intrusion into the democratic process.

  Once the Weiner laptop surfaced, Comey had little choice but to reopen the investigation. The FBI had to obtain a search warrant, a step that might well have become public. Given how many people knew about the existence of the newly discovered emails—including many people in the leak-prone New York office—their existence was almost certain to become public. That not only would have damaged Clinton even more but would have seriously harmed the reputation of the FBI. Even Loretta Lynch recognized that, no doubt one of the reasons she gave Comey a hug.

  Moreover, the fact that Comey reopened the Clinton investigation just days before the election and notified Congress, thereby making it public, is utterly inconsistent with any bias against Trump and in favor of Clinton. Many still blame Comey for Clinton’s loss.