Some version of the report by Special Prosecutor Robert Mueller III will be released on Thursday. In the following article, which first appeared in the London Review of Books, Yale professor David Bromwich puts the report—and the last two years of the Trump-Russian investigation— in context.
By David Bromwich
On 22 March, Robert Mueller, the special counsel charged with investigating Russian meddling in the 2016 election and its possible connection with the Trump campaign, submitted his report to William Barr, the US attorney general. Two days later, Barr sent a letter to Congress summarising the two main conclusions of the report. First, he quoted Mueller’s conclusion that the inquiry ‘did not establish that members of the Trump campaign conspired or co-ordinated with the Russian government in its election interference activities’. The word ‘collusion’, which for thirty months the centre-left media have used to inflate their hopes, clicks and subscriptions, wasn’t used. The weight-bearing ideas were conspiracy and co-ordination. ‘Conspiracy’: a conscious plan by two or more parties to commit an act they know to be illegal. ‘Co-ordination’: work performed together. You couldn’t tie Trump’s actions to either activity.
The second main finding concerned obstruction of justice; but here Mueller suspended judgment. His report elected not to issue a traditional directive of the sort that constitutes either a move to prosecute or a decision not to prosecute. Again in his own words: ‘while this report does not conclude that the president committed a crime, it also does not exonerate him.’ In his letter to Congress, Barr used this as a cue to take an unprecedented step; he declared on his authority as attorney general that Trump was not guilty of obstruction. He offered two reasons. There could not be obstruction without an underlying crime; and the disputed actions occurred in plain view, whereas obstruction surely implies concealment. This looked like protesting too much – an impression reinforced when it emerged that Barr had digested in 48 hours a report that ran to almost four hundred pages (excluding appendices). Within minutes, Trump had issued a triumphal tweet: ‘No Collusion, No Obstruction, Complete and Total EXONERATION. KEEP AMERICA GREAT!’
Barr had auditioned for the job of attorney general by taking another unprecedented step. He submitted to the Justice Department a 19-page single-spaced memorandum which argued that the chief magistrate (Trump) had the discretionary power to fire a person charged with investigating himself; in the same document, he supported the inclination by Trump and his lawyers to refuse to submit to questioning by Mueller’s team. Barr shared his memorandum with Trump’s lawyers; his nomination was a foreseeable reward. In his previous stint as attorney general, under George H.W. Bush, he had supported Bush’s decision to grant pardons to six Iran-Contra defendants indicted for crimes ranging from perjury to obstruction of justice. The Senate debate on Barr’s confirmation attached very little importance to this fact.
Given the fervent expectations that Mueller inspired (‘It’s Mueller Time’ T-shirts, devotional candles adorned with his image), the result was a tremendous let-down. Yet, in many ways, his default and Barr’s instant acquittal of Trump have left us where we were before. And ‘before’ takes in a good deal: the president’s shout-out to ‘Russia, if you’re listening’ to dig up Hillary Clinton’s missing emails; the WikiLeaks document-dumps from the Democratic National Committee; the bizarre conduct of the intelligence community in sharing with the president-elect the unvetted Steele dossier on his campaign’s connections to Russia, the heavy publicity around that meeting and the subsequent leak of the dossier; Trump’s unmistakably dependent posture towards Putin at Helsinki and his sacking of four Justice Department officials who commanded significant knowledge of his financial dealings and Russian connections.
The truth is that the Democrats and their media allies – most of all the New York Times, CNN and MSNBC – banked on a gift that was never bound to come. A team of 19 lawyers assisted by 40 FBI agents, intelligence analysts, forensic accountants, and others, issuing more than 2800 subpoenas and almost 500 search warrants and interviewing approximately 500 witnesses – surely an investigation so conceived couldn’t fail to deliver Trump into their hands? The Mueller probe brought in 34 indictments – answered by guilty pleas from Trump’s campaign manager, his first national security adviser and his personal lawyer – and precipitated grand jury investigations still going on in Virginia, Washington DC and New York. Also, hadn’t he been pronounced a traitor by James Clapper (former director of National Intelligence) and John Brennan (former director of the CIA)? How much more do you want? It didn’t strike them that these sources retained the dubious habits of exaggeration or distortion that had once prompted them to lie to Congress (in Brennan’s case, regarding the CIA hacking of the Senate investigation of the CIA; in Clapper’s, regarding illegal mass data collection on American citizens by the NSA). The trust accorded to former intelligence operatives by the warmest anti-Trump partisans should have been suspect from the first.
Many people now recognise the extent of the corruption that collects in, around and through Donald Trump. But it was a cheap fantasy that he could be nailed on the most melodramatic of charges: spying on the US and, what was worse, spying for Russia, the ‘Soviet Union’ (as many reverted to calling it), and for Putin personally (with whom Trump was said to harbour a dark infatuation). Democrats, held captive by their theory of the stolen election, combined with neoconservative opinion-makers and the right wing of Trump’s cabinet to lead a revival of the Cold War; in this way, they have helped to set in motion an ugly international process with wide reverberations (in Venezuela, in Syria, in Ukraine). The anti-Russia animus is inseparable from the showmanship of the most popular cable news host, Rachel Maddow, who has all but called Trump a Russian agent, and the most public opposition voice in Congress, Representative Adam Schiff of California, who between January 2017 and February 2018 logged 227 television appearances.
What recourse is available to the Democratic Congress that might enable it to circumscribe the abuses of a presidency that remains scandal-ridden, scandal-laden, scandal-suffused? Barr claimed the no-decision call on obstruction left it to him as attorney general ‘to determine whether the conduct described in the report constitutes a crime’. In a New York Times op-ed on 1 April, Jerrold Nadler, chairman of the House Judiciary Committee, disagreed and chastised Barr for refusing to send Congress the unabridged report:
The special counsel declined to make a ‘traditional prosecutorial judgment’ on the question of obstruction, but it is not the attorney general’s job to step in and substitute his judgment for the special counsel’s. That responsibility falls to Congress – and specifically to the House Judiciary Committee – as it has in every similar investigation in modern history. The attorney general’s recent proposal to redact the special counsel’s report before we receive it is unprecedented.
Nadler is one of the few Democratic lawmakers to exhibit an adherence to constitutional duty on a level with the party leaders of the 1960s and 1970s – J. William Fulbright on the foreign relations committee, Frank Church on the intelligence committee. Nadler voted against both the Iraq War and the Patriot Act, and exhibited a no-nonsense clarity and self-possession in the Clinton impeachment.
The ex-FBI director James Comey evidently shares Nadler’s reservations about the fast work by the attorney general, and is bewildered by Mueller’s non-decision on obstruction. During ‘An Evening with James Comey’ in North Carolina on 26 March, Comey said he had found ‘confusing’ Mueller’s claim that his failure to establish an underlying crime meant that he couldn’t determine criminal intent and shouldn’t make a recommendation on obstruction of justice. In an NBC interview the following day, he returned to the same criticism. ‘Every day in this country,’ Comey said, ‘people are prosecuted for obstructing justice’ without an underlying crime – they may have obstructed ‘to avoid embarrassment’, for example, or ‘to avoid harm to their business’. He also found it odd that Mueller had merely laid out the evidence on both sides concerning obstruction: he was charged with making a decision and the whole point of a special counsel is to avoid leaving the decision to a political appointee. In any case, how can you arrive at a judgment about intent when you haven’t interviewed the suspect?
As I write, Trump is about to travel to the Mexican border, his spirits lifted by what he calls his ‘total exoneration’ (and he is right that saying it often enough will make his followers believe it). The figures recently announced by Customs and Border Protection show the number of migrants suddenly rising (76,000 people crossed without authorisation in February alone): a fact that discredits the Democrats’ claim last year that immigration had actually declined under Trump. He will take heart from the crowd of twenty thousand he entertained in El Paso in February, and his rapt audience in March at the Conservative Political Action Conference, where they danced to his every step during a tirade that lasted almost two hours. He coaxed, cajoled and comforted his audience, and flirted outrageously, offering to say dirty words that Melania has forbidden him to use, then drawing back, then almost saying them to cheers of ‘Do it! Do it!’ The mass rallies that Trump has made normal acknowledge no distinction between national politics and reality TV.
The two parties have never been weaker. The Republicans are almost united but almost all obsequiously in thrall to Trump. The Democrats have tremendous possible assets in their energetic young left wing – the leadership is good at procedure but not much else. Those younger members need to be instructed that other people are listening to social media. If you want to talk about Jewish money – a hard call anyway – don’t do it in the language of gangsta rap (‘It’s all about the Benjamins baby’ was a tweet by Representative Ilhan Omar of Minnesota explaining the servility of US politicians towards Israel). And if you want to show contempt for Trump, don’t do it using language even lower than his – ‘We’re gonna impeach the motherfucker,’ Representative Rashida Tlaib of Michigan promised a few minutes after her swearing in. Depend on it, one of the people listening will be Trump.
Trump takes the Barr verdict to prove that the first two years of his first term were stolen from him by ‘the witch hunt’, and that the country owes him a favour. He has always been a vengeful character, bitter and shockingly uninhibited in response to anyone who threatens him or his fortune, but the chaos and recklessness of the man are wholly compatible with a cunning that the activist left as well as the managerial centre underrates. His 2020 campaign will be about redeeming the theft of 2017-18 and adding two more years for good measure. And he isn’t wrong about his crowd; they will follow him anywhere.