Sixth, the infamous Trump Tower meeting with a Russian lawyer by the name of Natalia Veselnitskaya was given a painstaking review by the special counsel. As I explained in considerable detail in The Russia Hoax, it is not a crime to talk to a Russian. Nor is it a crime for a candidate to receive negative information about a political rival that is volunteered by a foreign national, even if it benefits the campaign. When the New York Times published a story on July 8, 2017, about the meeting among the Russian lawyer, Donald Trump, Jr., and other campaign officials, Democrats and the media immediately seized upon it as evidence of “collusion” and all manner of illegality.116 Clinton’s former running mate, Virginia senator Tim Kaine, branded it “potentially treason,” while a former White House ethics lawyer, Richard Painter, suggested that the president’s son should be “in custody for questioning.”117 Those hyperbolic claims had no support in the law. The idea that it was treason is so preposterous that it does not merit an explanation here. Both men should go back to law school.
Here’s what actually happened. Mueller’s dissection of the law relative to the Trump Tower meeting replicates almost identically the analysis I provided to readers in my book, written a year before the special counsel produced his report. Two possible offenses were examined and discounted. One was “conspiracy to defraud the United States,” which makes it a felony for two or more persons to enter into an agreement to interfere or obstruct a lawful function of the government.118 An election would be a lawful government function. However, the US Supreme Court has said that such an agreement must be done by “deceit, craft or trickery, or at least by means that are dishonest.”119 Yet Mueller noted the absence of “surreptitious behavior or efforts at concealment.”120 More significantly, there was no evidence that the Russian lawyer had conveyed any information whatsoever to the Trump campaign about Clinton. Mueller found no agreement or conspiracy that had arisen out of the Trump Tower meeting. He further determined that there had been no attempt to “interfere with or obstruct a lawful function of government.”121 Other statutes that have their own conspiracy language were also abandoned by the special counsel for similar reasons.122
The other law that Mueller considered but rejected was the complicated set of campaign finance laws. After the Trump Tower meeting was disclosed, Nancy Pelosi, the Democrat leader in the House at the time, declared during a news conference that the president’s son had violated those laws “plain and simple.”123 Pelosi was wrong, and so were others who joined the chorus of condemnation based on campaign laws they had surely never read. The Federal Election Commission makes it clear on its website that it is perfectly lawful for foreign nationals to “volunteer for a campaign or political party.”124 They are permitted to attend meetings, contribute ideas, and convey information. None of that is considered to be a donation or “other thing of value” under the campaign statutes, as some have alleged. It is true that the Federal Election Campaign Act prohibits foreign nationals from making a “donation or money or other thing of value.”125 But the campaign laws have never interpreted the giving of information as having value in this way. In fact, a close reading of the statute identifies specific examples of what “other thing of value” is supposed to mean. Providing information is not among them as a prohibited contribution.126 Additional regulations state that “the value of services . . . is not a contribution.”127 Mueller noted:
No judicial decision has treated the voluntary provision of uncompensated opposition research or similar information as a thing of value that could amount to a contribution under campaign-finance law.128
Finally, as I explained in my book—and as Mueller acknowledged in his report—prosecutors could never bring a criminal case against Trump Jr. because they would have to show that he had known that he was somehow breaking the law in collecting information from a foreign national. How many people know that it might be a crime? I dare say, very few. It is doubtful that many lawyers understand the legal requirement of what Mueller called an “elevated scienter element.”129 This is a unique aspect of campaign finance laws. They demand proof of what is called specific intent. That is, the person who accepts the donation must “knowingly and willfully commit a violation” of the campaign law.130 For that reason, the Trump Tower meeting could not have been the subject of criminal prosecution because the special counsel team openly admitted that they couldn’t prove that essential element.131 This is why most campaign finance violations result in civil penalties, not criminal charges.
The Mueller Report negated several other events that Democrats and the media had assured us would prove how Trump was a clandestine agent of Russia who had swindled Americans out of a free and fair presidential election:
Did the Trump campaign alter the party platform at the Republican National Convention in a way that favored Russia in its stance with regard to Ukraine? That canard was peddled incessantly for the better part of two years by Democrats and the media.132 They offered it as irrefutable proof that Trump was in league with Putin. However, as columnist Byron York has consistently explained, “the final platform was tougher on Russia and Ukraine than the original platform draft; it was not ‘gutted,’ it was strengthened.”133 Mueller’s report vindicated York’s account.134
Did Trump’s personal attorney, Michael Cohen, travel to Prague for secret talks with Russians, as the “dossier” alleged? The Mueller Report says no.135 That wrecked yet another story advance by the media that Trump had “colluded” with Russia.
Did campaign members and supporters share or “like” tweets from Russian-controlled Internet Research Agency (IRA) accounts on social media?136 They did. But, as Mueller confirmed, they had no idea that Russian operatives were behind the disguised accounts. It is not a crime to be fooled.
Did Jeff Sessions, Trump’s son-in-law, Jared Kushner, and other members of the campaign meet with Russian ambassador to the United States Sergey Kislyak? Of course they did. The special counsel concluded that their conversations had been “brief and non-substantive.”137 It’s not a crime to be polite to or engage in casual banter, even with a Russian.
Did Michael Flynn, the incoming national security advisor, speak with the Russian ambassador during the transition about two pending foreign policy matters? Absolutely. That is normal for any transition team, and nowhere in his report does Mueller state that it was criminal “collusion” or that it somehow violated the Logan Act, as so many Trump critics had alleged.138
The Mueller team’s bias permeates nearly every page of the report. Facts were massaged in the way most detrimental to Trump without ever creating a basis to charge him. Other facts that would show that the president had been targeted with false evidence for political reasons were omitted.
The “dossier” was central to the FBI’s investigation and surveillance. Yet the “collusion” volume made nary a mention of that document nor the bias of its author, Christopher Steele. Russia’s involvement in feeding him disinformation in order to interfere in the election is unaddressed. The extent to which Steele appears to have invented information is disregarded. The role of his colleague Glenn Simpson and his company, Fusion GPS, are nowhere to be found. Though Mueller made a point of stating that paying money to a foreign national in exchange for information on an opposing candidate is a violation of the law, he ignored the fact that that was exactly what the Clinton campaign and the DNC had done.
These are not just deficiencies, they are fatal defects. It seems that the special counsel had no intention of producing a report that was fair, objective, or honest.
In reviewing the Mueller Report, Attorney General Barr penetrated the veneer of the special counsel’s anti-Trump bias and spoke plainly about its ultimate conclusion: “Mueller has spent two and a half years. And the fact is, there is no evidence of a conspiracy. So it was bogus. This whole idea that Trump was in cahoots with the Russians is bogus.”139
Mueller Knew Trump Was Innocent of Collusion Long Ago—Why Did He Delay?
All of this invites the qu
estion: When did Mueller know that there was no “collusion”? President Trump’s lawyer John Dowd told me that by October/November 2017, the special counsel had everything he needed to conclude that there was no evidence of criminal “collusion.”140 More than a million pages of protected documents had been turned over voluntarily by the White House and the Trump campaign. Nothing had been withheld, and no privileges had been asserted, although they could have been. The president’s transparency had been unprecedented. An endless parade of witnesses had all been made available and encouraged to speak.
According to Dowd, Mueller knew by the first week of December—slightly more than six months after his appointment—that “for sure there was no evidence of collusion.”141 That week, the special counsel had finished interviewing all “collusion” witnesses. Carter Page, who had never been charged with anything, confirmed to columnist Byron York that the special counsel had no longer been interested in him by the end of 2017.142 The FISA wiretap warrant on him was abandoned; Mueller and the FBI did not seek a fourth renewal. Page was off the radar. Other witnesses, including George Papadopoulos, said that Mueller had closed the book on them the same year. That was not unexpected. Recall that senior FBI officials had admitted in private sessions with Congress that by the time Mueller was appointed, they had almost no evidence of “collusion” with Russia and had failed to corroborate the “dossier” allegations against Trump.143 Still Mueller persisted.
Three months later, on March 5, 2018, a critical meeting took place between the president’s lawyers and Mueller, in the company of several of the special counsel prosecutors, including James Quarles III, Michael Dreeben, and Andrew Goldstein. As before, Weissmann was not permitted to attend. John Dowd recited the following exchange:
DOWD: Bob, does the president have any criminal exposure?
MUELLER: No.
DOWD: Okay, then what’s his status?
MUELLER: He’s a witness-subject.144
The word “subject” is a Justice Department term of art. It means that a person’s conduct is being examined, but there is no implication that he crossed the line into criminality. A “target,” by comparison, means that there is reason to believe he may have committed a crime and there is substantial evidence in support of it. Dowd recalled vividly how “we laid out everything to him.” There was no evidence whatsoever that the president had coordinated or conspired with any Russians. Nothing at all. Mueller had readily conceded this, said Dowd. Yet he had insisted that the president be interviewed. Dowd knew it was a trap. Mueller had done it to Flynn, Papadopoulos, and others. If a witness couldn’t recall something precisely or if his memory deviated one iota from what documents showed, the special counsel team accused him of lying and applied enormous pressure to get him to implicate Trump or someone else in his campaign, even if it was a lie. Mueller was clearly angling for obstruction of justice and hoping to ensnare the president in the equivalent of a perjury trap if he consented to be interviewed.
DOWD: I’m not going to have the president sit for hours and say, “I don’t recall” over and over. Some of the subjects you want to ask him about are so insignificant that no one could remember them. Why do you want to humiliate the president?
MUELLER: Well, I’ve got to square my corners about obstruction. I want to know if he [Trump] had a corrupt intent.145
Dowd explained that the firing of Comey had been an exercise of presidential authority under the Constitution and could not, by definition, constitute obstruction of justice. Even if it had been intended to end the investigation—and it was not—the president was legally and constitutionally empowered to do so as chief executive. It would not constitute obstruction “because that would amount to him obstructing himself,” as Dowd had already pointed out to Mueller in a lengthy letter.146 The special counsel would not relent.
MUELLER: I have to look at obstruction.
DOWD: You want to look at obstruction in the firing of Comey? I’ll tell you who our first witnesses will be: the attorney general, the deputy attorney general, and the White House counsel. They all urged the president to fire Comey. He was off the rails in his handling of the Clinton email case.
MUELLER: We may pursue a grand jury subpoena to compel the president to testify.
DOWD: [pounds his fist on the table] You’ve got nothing! Go ahead! I can’t wait for you to try. You’ve got no leg to stand on.147
Jay Sekulow, another of President Trump’s lawyers, attended that meeting and confirmed to me this account of the exchange, which was also reflected in his handwritten notes. He said that the meeting with Mueller and his team “became heated,” especially as Sekulow argued, “You don’t have the right to interview the president. You are nowhere near establishing the legal threshold for questioning a sitting president.”148 Both Dowd and Sekulow maintained that Trump’s actions had been constitutionally authorized and could not, as a matter of law, be considered obstruction of justice.
Mueller then pointed to other acts that might somehow be construed as obstruction, such as the president’s public criticism of Attorney General Jeff Sessions and even the special counsel himself. This was now reaching a ludicrous level. It was silly to claim that a public expression of disapproval or anger by a president was a criminally obstructive act. Dowd felt that Mueller and his subordinates were living in an alternative universe where their version of the law bore no resemblance to statutes, Supreme Court decisions, and accepted constitutional law. “They acted like crybabies who were offended that someone dared to criticize them, so they instinctively labeled it obstruction—it was insane,” said Dowd.149 He paused their conversation, trying to restore some measure of calm, and attempted to reason with Mueller.
DOWD: The president was raising hell with the attorney general, Bob, because he’s doing a lousy job. So what? That’s not obstruction of justice. He has every right to complain about the attorney general and every right to proclaim his innocence after being the victim of false accusations. Wouldn’t you?150
Mueller seemed either stoic or confused. Dowd and Sekulow argued that there was no legal basis to justify interviewing the president. Citing the “Espy standard,” based on a DC circuit court decision, they contended that there was no evidence that the information sought from the president could not be obtained elsewhere from the hundreds of witnesses questioned and more than a million pages of documents examined.151 Mueller had submitted topics and questions in advance. The president’s two lawyers explained that the special counsel had “already received the answers from the documents and testimony” on record. There was nothing more to ask the president.
Trump’s lawyers held firm and refused to allow their client to be interrogated by Mueller. Eight months later, a compromise was reached in which the president answered questions in writing. They can be found in twenty-three unredacted pages of the Mueller Report and demonstrate that Dowd’s argument was sound.152 The information contained therein could be found elsewhere, and the president had had either no knowledge or little recollection of the events in question.
Dowd was unsparing in his criticism of the special counsel. “This entire report by Mueller is a fraud . . . it’s an outrage,” he said.153 The president’s lawyer was particularly incensed when incomplete and selectively edited quotes of a Dowd voice mail message left for Michael Flynn’s attorney were misrepresented in the special counsel’s report to make it appear as though Dowd had acted improperly. “Isn’t it ironic that this man who kept indicting and prosecuting people for process crimes committed a false statement in his own report,” he remarked.154
In my interview with Dowd, he said he had grown deeply disturbed by Mueller’s mental state during the course of his investigation. “The environment surrounding Mueller was not healthy. There was this atmosphere of clicking heels and that Bob was God. He’s used to people genuflecting, and we weren’t. He was often sleeping there in the building where the investigation was headquartered.”155 During group meetings, only Mueller spoke. The other lawy
ers on the special counsel team were resolutely silent and behaved in complete deference to Mueller. Did he write any of the report himself? “Mueller didn’t write it . . . it was written by committee,” said Dowd. Giuliani agreed, “It was written by two groups—the James Quarles side, which was reasonable, and the Weissmann side, which was out of control, alleging collusion without any evidence.”156
By December 2017, the evidentiary bucket was empty and bone dry. Instead of ending the investigation, Mueller kept it going for another fifteen months. That, of course, allowed Trump’s detractors to continue to promote their vacuous claim that the president was a Russian marionette. It may also have been instrumental in helping Democrats win control of the House of Representatives in the November 2018 election. Was that the reason Mueller stubbornly pursued the case long after it was evident that there had been no criminal “collusion”? To pose the question is to answer it. With Democrats in charge, a path to impeachment of Trump was possible.
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