Tag: hit&run

While preparing the public for the release of Special Counsel Robert Mueller’s report this morning, Attorney General William Barr noted that Mueller examined 10 separate instances where President Donald Trump might have potentially obstructed the investigation.

Mueller ultimately decided not to decide whether Trump had actually attempted to obstruct, and Barr has concluded that Trump’s behavior was not enough to justify obstruction charges.

But the minute Barr noted that Mueller had flagged 10 separate instances, that became the news hook for the day. Since Mueller did not draw a conclusion on obstruction, what does the report say?

Mueller explains from the start of the report’s obstruction section—an entire volume of the overall report—that he would not come to a “traditional prosecutorial judgment” about Trump because he’d accepted the Office of Legal Counsel’s conclusion that “the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.” But Mueller does say that investigating a president for potential illegal conduct is itself permitted.

Mueller then adds that if he were confident that Trump did not obstruct the investigation, he would clearly say so. “Based on the facts and the applicable legal standards, however, we are unable to reach that judgment.”

Here are the 10 cases that Mueller explored.

1. How Trump behaved during the investigation of National Security Adviser Michael Flynn.

Flynn ended up resigning from the administration after admitting he had lied to officials when he said he hadn’t discussed with Russian officials the easing of sanctions that President Barack Obama’s administration had put into place as a response to evidence of election meddling. Flynn had, in fact, discussed this issue with Russian Ambassador Sergey Kislyak in order to discourage Russia from retaliating over the sanctions. Flynn then reportedly lied to FBI investigators about the conversation.

When the Washington Post reported on the conversation between Flynn and Kislyak in January 2017, Trump angrily called Reince Priebus, who was coming in as his chief of staff. Flynn said he was then pressured to try to get the whole story killed. Flynn’s deputy contacted the Post to deny the conversation happened, even though she knew the story was true. Several Trump officials denied that sanctions were discussed during the discussions. This series of events alarmed the Justice Department because they had already been investigating ties between Flynn and Russia, and they worried that Russian officials could prove the conversations happened and therefore compromise Flynn by threatening to expose him.

Acting Attorney General Sally Yates had warned the White House that Flynn was lying about the nature of his discussions with Kislyak and that the administration was inadvertently passing along the lies.

Trump subsequently forced Flynn’s resignation. Trump then pulled then-FBI Director James Comey aside for a private conversation where he reportedly said to Comey, “I hope you can see your way clear to letting this go, letting Flynn go,” rather than charging him for his false statements.

In Mueller’s analysis, he notes that Trump then publicly denied asking Comey to let Flynn go, but he finds evidence to corroborate Comey’s account. He then analyzes whether this statement as a “hope” or an actual request, which is how Comey says he took it. Mueller agrees that Comey saw this as a directive.

But was this obstruction? Mueller observes that Trump went through the effort to talk to Comey alone, against advice from the White House attorney who told Trump not to speak directly to Justice Department officials by himself so as not to appear as if he was attempting to influence the investigation. Then Trump denied he had made the request, something he wouldn’t have needed to do had he believed that his request was appropriate.

We’re left hanging about whether Mueller sees this as obstruction. It’s clear he sees the behavior as inappropriate and strange, but we don’t know whether he thinks it was illegal.

2. How Trump responded to the announcement of the FBI investigation and Attorney General Jeff Sessions’ recusal.

After the special investigation was announced in March 2017, Sessions recused himself due to his participation in Trump’s campaign. This infuriated Trump, who wanted Sessions to “unrecuse” himself. Trump contacted Comey and other intelligence leaders to ask them to state publicly that Trump was not connected to Russian election interference.

Sessions recused himself from overseeing the investigation due to his ties to Trump’s campaign and also because it turned out he had not disclosed his own meetings with Kislyak during his confirmation hearings. Trump, through his White House counsel, kept trying to get Sessions not to recuse himself. Sessions did anyway. According to Mueller’s report, Sessions believed Trump was worried that the investigation “could spin out of control and disrupt his ability to govern” if Sessions were not leading it.

When Comey confirmed to the House Intelligence Committee the existence of the investigation of Russia’s involvement in the election, Comey specifically made sure not to state who was being investigated. He also declined to answer when asked if Trump was under investigation. This led some press outlets to suggest that maybe Trump was under investigation, and this made Trump angry at Comey. Trump pushed then-White House Counsel Don McGahn to try to intervene with the Justice Department and ask if there was a way to speed up the investigation. It was at this point that McGahn’s office began looking into whether Trump needed to have cause in order to fire Comey.

On several occasions following Comey’s testimony, Trump asked officials in his administration to put out the word that he was not under investigation and that there was no link between him and Russia’s election interference. He asked Comey if anything could be done to “lift the cloud” over the presidency being caused by the investigation.

Does all this count as obstruction? After looking at all over, Mueller notes that, unlike the Flynn situation, people that Trump spoke to said that it didn’t feel as though they were being given directives to interfere with the investigation. Here Mueller concludes that Trump’s behavior was influenced by his anger and frustration that the investigation was interfering with his ability to govern and would detract from his accomplishments. All of that is to say, here it appears as though Mueller doesn’t see Trump’s actions as directly trying to interfere with the investigation itself.

3. The firing of FBI Director James Comey

Trump fired Comey in May 2017, formally citing Comey’s handling of the investigation into Hillary Clinton’s use of private servers as Secretary of State. But he privately admitted that the termination was at least in part due to the way the Russian investigation was going, and he told the Russian foreign minister exactly that, saying that he thought it would take the pressure off.

Was firing Comey obstruction of justice? In Mueller’s analysis, firing Comey could have been obstruction if it had the actual effect of ending the investigation. But it didn’t, and Trump was told before firing Comey that it wouldn’t stop the investigation from continuing.

Mueller notes that it’s obvious that Trump’s termination of Comey had nothing to do with his handling of Clinton’s case, and most telling was the fact that Trump ordered the termination letter to include a sentence that Comey had on three separate occasions told Trump he wasn’t under investigation. While Trump was again somewhat acting out of frustration that the investigation was interfering with his ability to do his work, there was evidence that Trump was concerned about the investigation into the campaign.

Here’s an important note from Mueller: “[T]he evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns.”

There’s also a short section in this part of the report that’s redacted due to an ongoing investigation of the Trump Tower negotiations. Considering that there are actually very few redactions in this part of the report, that’s worth noting.

4. Trump’s alleged attempt to end the special investigation and get rid of Mueller

In June 2017, following media reports that Trump was being investigated for obstruction, Trump tried to get White House Counsel McGahn to have Mueller removed. McGahn didn’t do so and instead prepared a resignation letter.

When Trump found out that a special counsel had been appointed he reportedly freaked out and said it would be the end of his presidency, and blamed Sessions. Sessions submitted his letter of resignation, but Trump convinced him to stay on.

Trump then tried to argue that Mueller had conflicts of interest because he had previously interviewed for FBI director. Noted Trump whisperer Steve Bannon thought the idea that Mueller had conflicts of interest “ridiculous.” McGahn warned Trump that attempting to get rid of Mueller would be another argument used to claim he was obstructing the investigation.

Regardless, Trump ignored his advisors after the Washington Post reported that Mueller was investigating Trump for obstruction, and asked McGahn to have Mueller removed. McGahn was not willing to do so and decided he’d have to resign. Priebus and Bannon convinced him not to.

So what does Mueller himself think of Trump trying to fire him? Is it obstruction? Much as with Comey’s firing, Muller notes that removing him wouldn’t necessarily mean the end of the special investigation, but a factfinder would have to determine whether doing so would have a chilling effect on his replacement.

Mueller also notes that Trump’s sense of urgency to have him removed, particularly after reading that he might be a target of an obstruction investigation, made a lie out of Trump’s claims that he was concerned about conflicts of interest, because he could have sought out an ethical evaluation rather than immediately on a weekend try to have Mueller removed.

Mueller adds that by this point in the investigation, Trump had been warned repeatedly that contacting the Justice Department would feed the obstruction investigation. Mueller bluntly notes, “The evidence indicates that news of the obstruction investigation prompted the president to call McGahn and seek to have the Special Counsel removed.” He adds that Trump likely knew that it was wrong to ask McGahn to take this action because McGahn already told him the White House could not be involved with this. And then Trump subsequently denied ever telling McGahn to remove Mueller and tried to get McGahn to deny the story.

So once again, here, without actually saying obstruction happened, Mueller wants the reader to clearly understand that he believes Trump tried to have him removed in order to stop the investigation because Trump knew he himself was a target of the investigation.

5. Trump’s attempt to affect the scope of the special counsel investigation

Just days after the failed effort to have Mueller removed, Trump had Corey Lewandowski deliver a message to then-Attorney General Session asking him to limit the scope of the special investigation to the subject of making sure Russia didn’t meddle in future elections.

Trump wanted Sessions to give a speech explaining that Trump was being treated unfairly and shouldn’t be the subject of a special counsel investigation because he hadn’t done anything wrong.

At the time, Lewandowski failed to deliver the message due to scheduling conflicts. By July of 2017, it became public knowledge that Donald Trump Jr., Jared Kushner, Paul Manafort, and others had met with Russian lobbyists in June 2016. Trump pushed again for Lewandowski to deliver the message to Sessions. Lewandowski handed it off to White House official Rick Dearborn to pass along. According to Mueller’s report, Dearborn said the message “raised an eyebrow” and being asked to pass it along to Sessions made him uncomfortable, so he didn’t.

A few days later the Washington Post reported that Sessions had discussed campaign matters with Russian officials, and this prompted Trump to again consider firing him. He told Priebus to demand Sessions’ resignation. Priebus warned that he might not be able to get a replacement through the Senate. Priebus and McGahn discussed again the possibility of resigning rather than carrying out Trump’s orders. Eventually, Priebus convinced Trump not to demand Sessions’ resignation, but then Trump began to tweet comments critical of Sessions.

Was this obstruction? Mueller notes that Trump was still trying to get Sessions to “unrecuse” himself and take control over what the investigation’s scope. Mueller says that these “directives indicate that Sessions was being instructed to tell the Special Counsel to end the existing investigation of the president and his campaign.”

Again in this example, without saying “this is obstruction,” Mueller outright states that the evidence shows here that Trump was attempting to prevent further scrutiny of his conduct. Mueller observes that trying to use Lewandowski to quietly pass a message along to Sessions rather than going through official communication channels demonstrates his intent to bypass people like McGahn who had been urging him to stop trying to meddle with the Justice Department’s work.

6. Trump’s involvement in efforts to prevent disclosure of emails about the Trump Tower meeting and Russian lobbyists

In response to initial reports that Trump Jr., Kushner, Manafort, and others had met with Russian lobbyists in Trump Tower, Trump’s campaign said it was a meeting about Russian adoption rules. A lot more happened in that meeting: The most notable of which was that Trump’s team had been told that the Russians had damaging information about Hillary Clinton.

Trump played a role in crafting initial statements about what happened at the meeting in explanations to the press, deliberately concealing the full nature of the discussion and preparing his son’s statement.

Here, Mueller notes that the lies were being told to the press, not Congressional investigators or to Mueller’s team. Trump apparently made no effort to keep emails about the true nature of the meeting out of the hands of investigators. In this case, Mueller makes it clear that he doesn’t see evidence of obstruction. They were trying to keep the information from getting into the hands of the press, sure, but not investigators.

7. Trump repeatedly tried to get Sessions to unrecuse himself before firing him

As 2017 went on, Trump complained to Sessions that the Department of Justice wasn’t investigating who he thought they should be investigating, by which he meant Clinton’s private server use. He urged Sessions to look at her and then started tweeting that Comey’s letter exonerating Clinton happened before the investigation was complete.

For months, Trump would attack Sessions in tweets and interviews for recusing himself. Then, the day after the midterm elections in November 2018, Trump dumped Sessions.

In his analysis, Mueller notes that evidence shows that part of Trump’s intent to get Sessions to unrecuse himself was his belief that Sessions would limit the scope of the investigation to protect Trump. Trump was aware at this point that the investigation included him and his son.

8. Trump ordered McGahn to lie about his attempts to fire Mueller

Trump’s failed effort to remove Mueller was uncovered by The New York Times in January 2018. Trump several times tried to convince McGahn to publicly deny that the story was true. McGahn refused each request.

Here, Mueller’s analysis notes that Trump disputes McGahn’s characterization of his request. Trump says he didn’t say the word “fire.” But McGahn insisted that the stories were accurate when they said Trump ordered him to have Mueller fired.

At this point, Mueller’s grand jury had brought back several indictments, and Mueller notes that the president had received a list of topics Mueller’s office wanted to discuss in a potential interview. Obstruction was among them. Trump also knew that McGahn had already been interviewed by Muller’s team and had told them about the attempt to remove Mueller.

Here Mueller concludes that “substantial evidence” indicates that Trump’s urging here for McGahn to dispute the story was intended as an attempt to influence McGahn in “in order to deflect or prevent further scrutiny of the President’s conduct towards the investigation.”

9. The president’s conduct toward Flynn, Manafort, and [Redacted]

In this section, Mueller notes Trump’s differing treatment of those who have been caught up in Mueller’s investigation based on how loyal they are to him and whether that counts as obstruction.

Flynn initially received supportive comments from Trump until he ended a joint defense agreement with Trump’s team and started cooperating with the government. Trump raised the possibility of a pardon for Manafort and made it clear he felt the man was being treated unfairly by the government over his fraud convictions.

There is an entire section of this part of the report about a third person that is entirely redacted. I’m not inclined to speculate.

Mueller notes that there’s evidence that Trump’s public comments are intended to encourage Manafort not to cooperate with the investigation and that Trump raised the possibility of a pardon as a way of influencing his behavior. But he also notes that it’s possible Trump genuinely felt bad for Manafort and he was trying to influence public opinion, not necessarily Manafort or a jury.

10. Trump’s treatment of Michael Cohen

Trump’s former personal attorney, who has turned against him, gets his own section in the obstruction volume. Cohen was part of the team pursuing the Moscow Trump Tower project for the Trump organization, insisted that the organization didn’t have any business in Russia when they were still negotiating, and when Cohen’s lies were uncovered, Trump said publicly that Cohen wouldn’t “flip” and passed along private messages of support. Cohen also said he thought he’d get a pardon from the president if he remained “on message.”

Then Cohen began cooperating with the government and all hell broke loose. The media found out that Cohen had a recording of a conversation with him and Trump arranging to pay off a woman Trump had an affair with to keep her mouth shut. This was the second case, and Cohen would eventually plead guilty to campaign finance violations for these payoffs.

Trump and Cohen turned on each other. Trump started publicly making comments that implied that Cohen’s family members were also involved in crimes. Trump said that Cohen had turned rat to get his sentence reduced and suggested that Cohen’s father-in-law had done something wrong. This prompted Cohen to postpone testimony before Congress (though he did eventually testify.)

In Mueller’s analysis, he explores both whether Trump encouraged Cohen to provide the false testimony to Congress that led to him being charged, and whether Trump took actions that would otherwise stop Cohen from testifying truthfully.

Mueller says that, while it’s likely Trump knew Cohen lied to Congress, he could not establish that Cohen did so at Trump’s request. Cohen has said that he believed that Trump wanted him to lie to Congress that negotiations to build a hotel in Russia ended before the campaign began, but Mueller isn’t so sure.

As for Trump’s treatment of Cohen abruptly changing after he started cooperating with investigators, Mueller notes that the inference here is that Trump gives off positive messages to those who refuse to cooperate with the government and “then turns to attacks and intimidation” to either deter or undermine the credibility of those who assist.

In Mueller’s analysis of Trump’s intent here, he is clear that he sees evidence that would support a claim that Trump’s treatment of Cohen is deliberately intended to discourage him from cooperating with the government precisely because it would “shed adverse light” on the president’s conduct during the campaign.

In the end, while Mueller will not specifically say that Trump did or did not engage in obstruction, what he has written in this report is most certainly intended to direct us to look at a trend of behavior designed specifically to either bring the investigation to a halt or to stop the people around him from cooperating with investigators.

And it does leave you to wonder what Mueller would conclude had he not decided from the start that he was not going to make a traditional prosecutorial decision about whether Trump had engaged in obstruction if Trump were not the president.

All of which is to say: This report really reads as though Mueller believes that Trump engaged in obstruction.

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Two years after a mob of activists silenced Charles Murray and attacked his debate partner, Allison Stanger, Middlebury College is again permitting censorship to rule the day. But this time, it is the administration, rather than the students, shutting down the debate.

Earlier this week, Middlebury officials cancelled a planned event featuring Ryszard Legutko, a Polish politician and philosopher. Ryszard is known for his conservative social views, and has criticized “homosexuals, Africans, and feminists.” This led many on campus to criticize the Alexander Hamilton Forum, a group associated with the college’s political science department that seeks to create stimulating discussions on campus, for inviting him.

“By giving Mr. Legutko a platform to promote his book, you legitimize the destructive party and government that he is associated with,” wrote Thomas Gawell, a recent graduate, in an op-ed for The Middlebury Campus, the student paper. “As a Middlebury alumnus from Poland, I am truly hurt that you showed such level of insensitivity and ignorance. I am all for Middlebury inviting speakers that hold views different than those of the campus majority. But you could at least seek speakers who are not bigots and hypocrites.”

Legutko was slated to discuss his views on democracy, not his views on homosexuality. Even so, student-activists had planned to protest the talk and were organizing an LGBT-affirming event to take place outside the forum. Importantly, as the Foundation for Individual Rights in Education’s Nico Perrino notes, the activists had no intention of shutting down Legutko. On a Facebook page for protest organizers, an activist leader said, “It is absolutely, unequivocally not the intent of this protest and those participating in this protest to prevent Legutko from speaking. Disruptive behavior of this nature will not be tolerated.”

This makes the college’s decision to cancel the talk very troubling indeed. No doubt the administration did not want a repeat of the Murray debacle. But preemptively shutting down difficult conversations out of an abundance of caution is really no different from shutting them down due to mob pressure. The administration claimed that its decision “was based on an assessment of our ability to respond effectively to potential security and safety risks for both the lecture and the event students had planned in response.” This sounds like excuse-making.

Per one student’s request, a political science professor, Matthew Dickinson, invited Legutko to address his class instead. This is better than nothing, but did not and could not have included everyone who wished to attend the Hamilton Forum event.

A college that values the free exchange of ideas should be able to host a controversial or provocative speaker—and supporters and critics alike should be able to show up, ask tough questions, or protest in a manner that does not infringe on the rights of anyone else. That Middlebury has once again failed this test is not an encouraging sign.

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If either major political party in American politics cared an iota about limiting executive power—and preventing the abuses that inevitably spring from such nearly unlimited power—Thursday’s release of a redacted version of Special Council Robert Mueller’s report would probably be the end of the Trump presidency.

Whether that end came via impeachment or through a Nixonesque forced resignation following a collapse of public and congressional support, it doesn’t really matter. In a normal political environment, the Mueller report would have been a damning, un-survivable bombshell for the administration—even without the special counsel finding evidence of collusion with Russia or choosing to bring charges of obstruction.

Instead, Trump will survive Mueller’s report (and has even declared victory) in the same way he survived every other major scandal—from the Access Hollywood tape to Stormy Daniels—of his short political career. He’ll survive because partisan interests dictate that he must, and partisanship now rules everything.

“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,” the report says. Lacking that exonerating information, Mueller kicked the question of whether Trump committed obstruction—and therefore the corollary question of whether he should be impeached—to Congress. That’s the right thing to do, given that Department of Justice precedent states a sitting president cannot be charged with crimes and that impeachment is a fundamentally political, not legal, process.

What will Congress do with the Mueller report? Likely not much, beyond fundraising off of it.

Republicans have already circled the wagons around Trump. “If Bob Mueller in two-and-a-half years of investigation—which includes both the FBI and special prosecutor’s time—doesn’t bring charges, I don’t know how much longer we need to be talking about collusion and obstruction,” Rep. Mark Meadows (R–N.C.), chairman of the House Freedom Caucus and one of Trump’s closest congressional allies, told Politico. The ranking Republican on the House Oversight Committee, Rep. Jim Jordan (R–Ohio), said the Mueller report’s conclusions meant a “sad chapter of American history is behind us.” Would they be saying anything like that if a Democratic president the subject of Mueller’s report?

Meanwhile, House Majority Leader Nancy Pelosi (D–Calif.) has effectively ruled out impeachment. That makes sense too. Democrats have a strong short-term incentive to campaign against a weakened Trump in 2020.

But beyond those acute short-term interests, neither party has much of an interest in setting a precedent that could be used to limit presidential power in the future. It’s possible both that Trump did not commit a crime and that he ought to be removed from office, but setting that standard would hang a cloud over every chief executive to come—and both parties desire to wield the power of the presidency more than they fear what the other would do with it.

The result: Saving Trump’s presidency makes sense for both parties in Congress, even as it undeniably deals another blow to the legislature’s status as a co-equal branch of government.

Intense partisanship and the desire for power, in short, will save the president from the political reckoning he probably deserves.

To be fair to Trump, he did not create the current hyper-partisan environment—though he does contribute to it and benefit from it. It’s the same symbiotic relationship, nurtured by the media, that birthed Trump’s presidential aspirations, germinated them into reality, and (if the details of the report are to be believed) guided many of the president’s near-obstruction actions over the past two years.

Let’s be clear about the content of the Mueller report: Trump made multiple attempts to obstruct the investigation, only to be stopped from doing so by his own subordinates—often because they ignored or contradicted his explicit orders. “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,” the report states.

As Reason‘s Peter Suderman put it: “The picture emerging from the report is one of a temperamental and inexperienced president whose managerial bumbling and self-destructive instincts are kept at least partly in check by more experienced staff.”

In doing so, Trump’s underlings may have saved him (and others in Trump’s inner circle) from prosecution or impeachment. But that does not excuse the actions of the president. In a less toxic political environment, Republicans might admit to themselves that the man residing in the White House often seems unfit for the job—and is clearly unable or unwilling to recognize and respect the constitutional and legal limits of his office.

Again, Trump is not to blame for expansive powers granted to the modern presidency. Congress and the White House have worked for decades to build the executive branch into the leviathan that it is today. Impeaching Trump or otherwise forcing him from office would not undo all those mistakes—even though, as Gene Healy has argued persuasively, a more robust use of impeachment over the past 200 years would have improved the nation’s political state, “given how many bastards and clowns we’ve been saddled with over the years.” If only we had a time machine.

Allowing Trump to skate would not only add to this legacy of congressional acquiescence to executive misbehavior. It would set the bar so high that no future president would likely ever qualify for removal—or at least we would certainly hope so.

The next time a president abuses his or her powers the way Trump has, the country might not be so lucky to have him or her surrounded by aides willing to ignore direct orders.

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Love him or hate him, President Trump’s Twitter presence is impossible to ignore. And with something as exciting as the Mueller report dropping today, the thumb-thugging bar was exceptionally high.

We’re spending some time analyzing the president’s Twitter feed today.

No Collusion – No Obstruction! pic.twitter.com/diggF8V3hl

— Donald J. Trump (@realDonaldTrump) April 18, 2019

Trump’s first post-Mueller report tweet was this bad boy right here. The video is strong. You get to hear Trump repeat “no collusion” for nearly an entire minute. The clip is set to some dramatic—patriotic, even—music in the background. If you got the sense that Trump was about to interrupt the clip to say, “This is our Independence Day,” then you aren’t alone.

The words in the tweet also get straight to the point. “No Collusion—No Obstruction!” captures the essence of Trump. 

Overall score: 8/10

pic.twitter.com/222atp7wuB

— Donald J. Trump (@realDonaldTrump) April 18, 2019

I admire the attempt at relevancy, but would personally advise against it. For one thing, pop culture references are subject to all sorts of blowback from hardcore fans. Trump may think he’s referring to himself as Jon Snow, but that won’t stop millions of Twitter users from getting into his mentions and insisting he’s actually Joffrey.

How does HBO feel about Trump sharing yet another Game of Thrones meme? Welp, the company said that they “still prefer” to not have their intellectual property “used for political purposes” in a statement.

Overall score: 4/10

As I have been saying all along, NO COLLUSION – NO OBSTRUCTION! pic.twitter.com/BnMB5mvHAM

— Donald J. Trump (@realDonaldTrump) April 18, 2019

Trump uses other people to convey what he’s insisted all this time. A popular late night comedian? A flustered CNN panel? Trump is using their own words to drag them for filth and prove his point.

However, I’m docking points for wordiness and repetition. Not only is this essentially his first tweet, but it would have had more impact without any sort of introduction.

There are also concerns about pacing. Considering the previous tweets were posted before lunchtime, this new video would have made for good post-work traffic/pre-dinner discussion.

Overall score: 7.5/10

Bonus Links: Interested in the Mueller report but don’t know where to start? Get your “Ctrl+F” ready and try this searchable version. Have questions about collusion? Read an overview here, or some other takes here.

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In detailing 10 episodes that could be viewed as evidence that Donald Trump obstructed justice as president, Special Counsel Robert Mueller’s report suggests several promising lines of defense, stronger in some cases than others, that call into question one or more of the three elements required for a conviction: an obstructive act, a nexus to an official proceeding, and a corrupt intent. A jury might very well conclude that the case has not been proven beyond a reasonable doubt.

But it’s not up to a jury, since the Justice Department, per its longstanding policy, was never going to prosecute a sitting president. It’s up to Congress, which in deciding whether a president has committed “high crimes and misdemeanors” is unconstrained by statute or by the standard of proof that applies in a criminal trial. Democrats will be inclined to conclude that the amorphous standard for impeachment has been satisfied, while Republicans will say that Mueller’s decision not to reach a firm conclusion about the criminality of the president’s conduct amounts to an exoneration.

To any fair-minded reader who is not blinded by partisan bias, however, one thing is clear: Donald Trump, if he is guilty of obstructing justice, is really bad at it. Over and over again, he opened his mouth when he should have kept it shut, lied clumsily and transparently, ignored warnings from multiple advisers that his public and private actions could be construed as obstruction, and did everything he could to reinforce the impression that he was a man with something to hide.

Attorney General William Barr, who unlike Mueller has announced that there is no provable obstruction case against Trump, today emphasized that “the President took no act that in fact deprived the Special Counsel of the documents and witnesses necessary to complete his investigation.” But as the Mueller report points out, you can be guilty of obstruction even if your efforts are unsuccessful, and Trump’s failure was due largely to his subordinates’ resistance.

You can also be guilty of obstruction even if you did not commit an underlying crime that you are trying to cover up. That is how Trump came to be credibly accused of obstructing an investigation of a crime (conspiring with Russia to influence the presidential election) that never happened, then obstructing the investigation of his obstruction. And in the end, has no one to blame but himself.

Trump alternately cajoled and condemned potential witnesses against him (his former national security adviser, Michael Flynn; his former personal lawyer, Michael Cohen; and his former campaign chairman, Paul Manafort) and subordinates he thought should be doing more to protect him from the Russia investigation (FBI Director James Comey, Attorney General Jeff Sessions, White House Counsel Donald McGahn). He did this publicly as well as privately.

“Many of the President’s acts directed at witnesses, including discouragement of
cooperation with the government and suggestions of possible future pardons, occurred in public view,” Mueller notes. “While it may be more difficult to establish that public-facing acts were motivated by a corrupt intent, the President’s power to influence actions, persons, and events is enhanced by his unique ability to attract attention through use of mass communications. And no principle of law
excludes public acts from the scope of obstruction statutes. If the likely effect of the acts is to intimidate witnesses or alter their testimony, the justice system’s integrity is equally threatened.”

Trump publicly denied making requests or issuing instructions aimed at containing or stopping the Russia investigation, such as asking Comey to leave Flynn alone or telling McGahn to fire Mueller. In almost every such case, the report concludes that “substantial evidence” favors the subordinate’s account.

Trump fired Comey for refusing to publicly clear his name, even while acknowledging that the decision would look bad and probably would prolong the investigation he was trying to contain. (Mueller was appointed a week later.) He offered a completely implausible cover story for Comey’s dismissal that he admitted was not true a couple of days later.

Trump deliberately misled the public about his efforts to build a Trump Tower in Moscow, a deal that was still being pursued as late as July 2016. He deliberately misled the public about the nature of a meeting between his son and a Russian lawyer who had promised dirt on Hillary Clinton. He whined endlessly, publicly and privately, about the unfairness of the “witch hunt” that Mueller was conducting and Sessions’ failure to protect him from it. He ignored his lawyers’ entreaties to stop commenting on the investigation because it was hurting his case.

Although it turned out that Trump was telling the truth when he denied illegal “collusion” with the Russians, that does not mean his attempts to undermine the investigation could not qualify as obstruction. “Obstruction of justice can be motivated by a desire to protect non-criminal personal interests, to protect against investigations where underlying criminal liability falls into a gray area,
or to avoid personal embarrassment,” Mueller notes. “The injury to the integrity of the justice system is the same regardless of whether a person committed an underlying wrong. In this investigation, the evidence does not establish that the President was involved in an underlying crime related to Russian election interference. But the evidence does point to a range of other possible personal motives animating the President’s conduct. These include concerns that
continued investigation would call into question the legitimacy of his election and potential uncertainty about whether certain events-such as advance notice of WikiLeaks’s release of hacked information or the June 9, 2016 meeting between senior campaign officials and Russians could be seen as criminal activity by the President, his campaign, or his family.”

On the question of whether a president’s obstruction of justice can include the exercise of his Article II powers, such as the hiring and firing of executive branch officials, Mueller firmly disagrees with Barr, saying a corrupt motive can make such acts criminal. Barr, by contrast, argues that Trump legally could have fired Mueller or ordered an end to the investigation, regardless of his motive, because the Constitution gives him that authority. But Barr says he did not evaluate the obstruction case against Trump based on the premise, and much of Trump’s suspicious conduct—including his public lies and his apparent efforts to influence what Flynn, Cohen, and Manafort told investigators—does not fall into this category.

The obstruction case against Trump is not conclusive. In fact, his indiscretion and ineptness could be seen as evidence that he did not think he was breaking the law. But at the same time, he recklessly created the appearance that he was guilty of something, disregarding sound legal advice from people who knew better. If arrogant stupidity were a crime, Trump would be guilty beyond a reasonable doubt.

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The Mueller report, a redacted version of which was released today, doesn’t conclude that President Trump obstructed justice. But it also doesn’t conclude that he didn’t. Instead, it strongly suggests that he tried—and was foiled by a staff that refused to carry out his instructions.

Attorney General William Barr’s initial summary of the report quoted it as saying that “while this report does not conclude that the President committed a crime, it also does not exonerate him.”

The full paragraph is even more explicit about leaving open the possibility that Trump may have acted in a criminal manner.

“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,” the report says. “Based on the facts and the applicable legal standards, however, we are unable to reach that judgment.” The evidence collected during the investigation “presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred.” Is Trump a criminal? The Mueller report answers that question by saying, essentially, that the Special Counsel’s office can’t rule it out.

Even if Trump did not obstruct the investigation, the report provides evidence that he tried to—and failed only when his staffers refused to carry out his instructions.

The report identifies several instances in which the president apparently attempted to influence the investigation, by narrowing its scope in some way or by removing Robert Mueller. Trump, for example, pushed former FBI Director James Comey to end an investigation into former National Security Adviser Michael Flynn. Trump also directed former White House counsel Don McGahn to tell Rod Rosenstein of the Department of Justice that Mueller should be taken off the investigation. Trump later told McGahn to lie about being ordered to take Mueller off the case.

Yet none of these things actually happened. Trump’s staff declined to follow his orders. 

As the report says:

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. Comey did not end the investigation of Flynn, which ultimately resulted in Flynn’s prosecution and conviction for lying to the FBI. McGahn did not tell the Acting Attorney General that the Special Counsel must be removed, but was instead prepared to resign over the President’s order. Lewandowski and Dearborn did not deliver the President’s message to Sessions that he should confine the Russia investigation to future election meddling only. And McGahn refused to recede from his recollections about events surrounding the President’s direction to have the Special Counsel removed, despite the President’s multiple demands that he do so.

There’s a parallel here to the infamous Trump Tower meeting during the campaign, in which Trump’s son and campaign associate, Donald Trump, Jr., met with a Russian national who promised to share embarrassing material on Trump’s Democratic rival, Hillary Clinton. Informed about the potential for political dirt, the younger Trump wrote in an email, “if it’s what you say, I love it.” But the meeting was a bust, and none of the promised dirt ever materialized. (The Mueller report is similarly coy on this matter, stating that “although the evidence of contacts between Campaign officials and Russia affiliated individuals may not have been sufficient to establish or sustain criminal charges, several U.S. persons connected to the Campaign made false statements about those contacts and took other steps to obstruct” related investigations.)

The Trump campaign didn’t collude with Russia—but it tried. Trump may not have obstructed the Mueller investigation—but it sure looks like he tried.

In contrast to suggestions that Trump is the ringleader of some sort of wide-ranging conspiracy, the picture emerging from the report is one of a temperamental and inexperienced president whose managerial bumbling and self-destructive instincts are kept at least partly in check by more experienced staff.

In some ways, it is a vindication of Trump’s campaign trail argument that Washington is a swamp populated by politics-and-government lifers who hold much of the real power.

At the same time, it suggests that far from draining the swamp, Trump has become part of it, subsumed into its muck, and, if not completely powerless, consistently limited in his ability to change the political ecosystem around him. That ecosystem, meanwhile, has served as a protective buffer, preventing Trump from carrying out acts that might threaten his political future. In the end, the swamp may be what saved Trump’s presidency.

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If you’re a close follower of the news, you might have heard that the Justice Department released Special Counsel Robert Mueller’s long-awaited report this morning on potential obstruction of justice by President Donald Trump, as well as alleged collaboration with the Russian government by the Trump campaign during the 2016 presidential election.

Of course, the nation’s highest law enforcement agency released the report as a non-searchable PDF image. However, The Washington Post uploaded a searchable version, so you can quickly look for “pee tape.” (Spoiler: It’s not there.)

The Justice Department promised the report would be”lightly redacted,” trying to allay fears that the most important findings of the Mueller report would be hidden from the public. The federal government is notorious for using unhelpful document formats, outdated technology, and abusing Freedom of Information Act (FOIA) exemptions to hide information.

But the redactions at least do not appear as bad as they could have been. Executive privilege, which grants the office of the president broad power to withhold documents, does not appear to have been used. The bulk of the redactions appear to be related to ongoing investigations and grand jury materials, which are almost never released.

The fight over the Mueller report is just beginning, though. As I wrote earlier this year, Democrats in Congress, who now control the House, will be using their power to press for more information from the Justice Department. And transparency groups and journalists, such as the Electronic Privacy Information Center and BuzzFeed News, have already filed Freedom of Information Act lawsuits for the full report. They will try and convince a federal judge to peel back as many of the redactions as they can.

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[You might also read my earlier posts on the subject,

• Anti-Libel Injunctions and the Criminal Libel Connection
• The First Amendment and Criminal Libel Law
• The First Amendment and the Catchall Permanent Injunction
• The First Amendment and the Specific Preliminary Injunction,
• How Specific Anti-Libel Injunctions Underprotect Speech
• The First Amendment and the Hybrid Permanent Injunction

Or you can read the whole article in PDF.]

Some courts allow injunctions only as to speech on matters of “private concern”; Professor Ardia has recently argued the same. Such a rule would at least diminish the risk of criminal punishment (via contempt) for speech on public matters. And indeed speech on matters of supposedly private concern is already treated differently by libel law: Such speech can lead to punitive and presumed damages even without a showing of “actual malice”; it’s also possible that states may require defendants in private-concern cases to prove their statements were true rather than requiring plaintiffs to prove falsity.

But unfortunately, despite decades of trying, courts have done a poor job of defining what constitutes a matter of public concern. (Nat Stern discussed this in detail in a 2000 article, and I have as well in a more recent piece.)

And that is so in the very class of cases where injunctions against libel seem most common: claims that businesses or professionals have defrauded or mistreated consumers. The Ninth Circuit, for instance, has held that a jet ski seller’s supposed refusal to give a refund for an allegedly defective product was a matter of public concern; it also held the same for a claim that a mobile home park operator charged unduly high rents. Other courts have taken a similar view. But others disagree.

The same is so for another common category of libels that often lead to injunctions: accusations of crime. The Ninth Circuit, for instance, has held that, “[p]ublic allegations that someone is involved in crime generally are speech on a matter of public concern,” in a case where a solo blogger accused a court-appointed trustee of tax fraud in a bankruptcy reorganization of a company. The California Court of Appeal likewise held that including plaintiff’s name in a leaflet containing a list of alleged rapists was speech on a matter of public concern. The New Jersey Supreme Court, on the other hand, held that a person’s online allegation that his uncle had molested him when the person was a child was a matter of purely “private concern” for libel law purposes; the Iowa Supreme Court held likewise in a similar case.

Likewise, consider three cases dealing with allegations of substance abuse. Ayala v. Washington held that a letter to an airline alleging that one of its pilots—the defendant’s ex-boyfriend—was a marijuana user was merely on a subject of “private concern.” Starrett v. Wadley, on the other hand, held that an allegation that a supervisor at a tax assessor’s office had an alcohol problem was a matter of “public concern,” because it revealed improper behavior by a government official. And Veilleux v. NBC expressly rejected liability for true reports of drug use by a truck driver under the disclosure of private facts tort, concluding that the named driver’s “drug test results were of legitimate public concern.”

What’s more, many cases seem to suggest that the public/private concern line should turn on “context, form, and content,” without much elaboration of how those factors should be evaluated. Thus, for instance, Dun & Bradstreet v. Greenmoss Builders concluded that an allegation in a credit report that a small business had declared bankruptcy was not a matter of public concern, partly because the report was sent only to a handful of subscribers. Perhaps, then, the same report posted to the world at large, even just on a gripe site, might be on a matter of public concern—or would it be? What if the business were larger, so that more creditors, employees, and consumers might be affected by the supposed bankruptcy? It’s not clear how courts are to draw this line.

Similarly, Connick v. Myers concluded that questions about whether prosecutors had lost confidence in the D.A. and his top assistants were on not on a matter of public concern. Surely, though, if a newspaper had published a story about the same matter, few people would be surprised; the underlying topic is indeed a public matter, since it bears on the conduct of a powerful government department and the competence of important government officials.

Rather, the Court’s focus seemed to be on the speakers being employees rather than outsiders, and on their motivation apparently stemming from their own personal interests. Perhaps, then, the same statements posted by someone else, with a different motive, might be seen as matters of public concern. But again it’s not obvious how courts draw such distinctions.

In some situations, courts might be able to confidently say that speech is just a matter of private concern—allegations of promiscuity, noncriminal adultery, and the like might qualify. But in many cases, deciding whether particular accusations are on a matter of private concern may be quite hard, not just because the law is unsettled but because the vagueness of the underlying test is likely to continue leading to uncertainty.

 

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Given how often California’s regulatory state ensnares mundane things like plastic straws and apartment buildings, it should come as no surprise that the state’s now-legal recreational cannabis industry is having a hell of a time navigating a new world of red tape and restrictions. Causing particular grief is one of the Golden State’s more infamous laws: the California Environmental Quality Act (CEQA).

Passed in 1970 and signed into law by famed anti-pot scold and then-Gov. Ronald Reagan, CEQA has developed a reputation as the NIMBY’s weapon of choice for killing off disfavored developments. The law is now being used to frustrate cannabis entrepreneurs who are trying to go legit.

“I like to call [CEQA] the silent killer,” says Pamela Epstein, an environmental lawyer and founder of the cannabis consultancy firm Green Wise.  Other cannabis consultants have said the law could cause an “extinction event” for the cannabis industry.

Understanding how one law can be so problematic requires understanding a bit about how CEQA works.

In brief, CEQA says that any project with the potential to change the physical environment of the state and which will undergo discretionary review by a government body must submit extensive studies to assess potential environmental impacts that might need to be mitigated.

As written, the law requires just about every construction project in California to undergo some sort of environmental review. Crucially for the cannabis industry, this requirement also applies to local zoning ordinances that dictate where new developments can build.

The law also gives third parties who feel a particular project or ordinance has received insufficient environmental review the ability to appeal. Should that appeal be rejected, these third parties can use the law to sue.

Given the huge of number of things that count as a project under CEQA, the long list of environmental impacts the law requires to be examined, and the low cost of filing an appeal, the law is often used as a weapon to delay or stop disfavored projects (a few of which Reason has profiled).

In the case of cannabis, CEQA has already sparked a number of lawsuits from anti-cannabis groups alleging that local governments performed inadequate environmental study before approving their own cannabis regulations.

In January of this year, Trinity County—part of the famed ‘Emerald Triangle’, so-named for its legendary cannabis grows—was sued by a local NIMBY group arguing the county’s ordinance governing marijuana cultivators lacked sufficient environmental review. The year before, San Mateo County, just south of San Francisco, was hit with a similar lawsuit.

San Mateo County buckled quickly, agreeing to a moratorium on the issuance of new cannabis licenses. Trinity County is being a bit more heroic, deciding to fight its own anti-cannabis lawsuit in court.

Individual businesses have been tied up by these lawsuits as well, says Epstein. “I have a client going through this right now,” she tells Reason. “They did traffic impact analysis, they got an air quality engineer, and still the NIMBYs decided to sue because they knew better, and didn’t want this dispensary there.”

To its credit, the California Legislature tried to head off a lot of these problems by passing an omnibus cannabis bill in 2017 that, among other things, gave local governments the power to exempt their own cannabis ordinances from CEQA.

In theory, this was supposed to make it easier for local governments to quickly set up regulatory regimes for the newly legal cannabis industry while avoiding the onerous environmental study requirements of CEQA.

In practice, it’s made things worse for a lot of cannabis businesses.

That 2017 state law said that even if a local government did exempt its own cannabis regulations from CEQA, it still had to require each individual business to go through the CEQA process when they apply for a local permit.

Unfortunately, a lot of localities shirked this requirement, instead just approving cannabis permit applications without subjecting them to any sort of CEQA review. That, in turn, has caused problems for these businesses as they apply for permits at the state level, where CEQA is sacrosanct.

Beginning in late 2018, state regulators started issuing permanent licenses for cannabis operations, which are supposed to replace the temporary licenses these businesses received as a stopgap measure. About 10,000 of those temporary permits are supposed to expire this year.

The trouble is that in order to get a permanent state license, a business has to show compliance with CEQA—something that wasn’t required to get a temporary state license or by some local regulators. In short, these folks were likely under the impression that everything they did to get their business open would be enough to keep it open.

Instead, many businesses using temporary licenses have applied for a permanent state license only to be told that they still need to go through a possibly-year long CEQA process (longer still if some NIMBY decides to sue) before they can be approved, during which time their temporary license will likely expire. Without some kind of valid state license, cannabis operators will have to shut down.

In 2018, the state legislature tried to fix this problem, too, by allowing state agencies to issue provisional licenses to anyone that could show they were in the process of coming into compliance with CEQA. The idea was to use these provisional licenses as a bridge for operators whose temporary licenses will expire soon, but who still have a lot of work to do before they can qualify for a permanent license.

And indeed, these provisionals have proven a lifeline for a lot of businesses that were out of compliance with CEQA. However, they’ve done nothing to help those businesses who were forced to go through the CEQA process at the local level.

Because those businesses are already CEQA-compliant, they’re ineligible for provisional licenses. They also can’t get a permanent license because there is a huge backlog of permanent license applications at the state level.

To give you a scale of the problem, the California Department of Food and Agriculture (CFDA)—which is responsible for licensing cultivators—has issued a total of 96 permanent cultivation licenses, according to the department’s online database, and another 695 provisional licenses since late 2018. Yet on April 20 of this year alone—when stoners across the state will be lighting up—some 1,200 temporary cultivation licenses are set to expire.

“We have several hundred, if not thousands, who are not eligible for provisional [licenses] because they can show CEQA compliance,” says Epstein. Many of those businesses will be forced to shut down once their temporary licenses expire. “It’s like they want you to be compliant but compliance is the thing that is hamstringing some of these operators.”

Industry consultants say a scenario in which all these businesses end up in legal limbo would be an “extinction event” for cannabis businesses.

To make matters worse, Epstein speculates that state regulators are prioritizing provisional license applications because they only require a showing that a cannabis operation is trying to bring itself into CEQA compliance; it’s more time and resource-intensive to verify that a business is actually fully compliant.

Currently, there’s a bill pending in the legislature that would allow for temporary licenses to be extended while state regulators get to work processing applications, but it has yet to pass. Even if it does, its own sponsor describes it as a “band-aid” intended only to give state agencies a little breathing room.

If all of this sounds like a huge, confusing mess to you, that’s because it is. California is proving an extreme example of a problem bedeviling all states that have legalized recreational marijuana: how to quickly transform a loosely or mostly unregulated black market into a heavily regulated legal market one in a very short period of time.

This process has been made all the worse by California’s environmental review law, which has empowered recalcitrant anti-cannabis NIMBYs to bog down local regulations in litigation, and is causing bureaucratic gridlock at the state level.

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Following a nearly two-year investigation into Russian meddling in the 2016 election, Special Counsel Robert Mueller has released 448 pages of his findings, which you can read here.

Reason‘s Scott Shackford is poring through the report and will be writing about it later today. As I have yet to read the report in its entirety, I’ll refrain from any analysis. But here are a few potentially noteworthy passages that CNN has highlighted.

On alleged Trump campaign collusion with Russia:

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 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 in the election interference activities.

On alleged obstruction of justice by President Donald Trump:

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, however, we are unable to reach that judgment. The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

And on whether Congress can find if Trump obstructed justice:

With respect to whether the President can be found to have obstructed justice by exercising his powers under Article II of the Constitution, we concluded that Congress has the authority to prohibit a President’s corrupt use of his authority in order to protect the integrity of the administration of justice.

Stay tuned.

 

 

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