Has Mueller Failed Us?

Now that the Mueller report has been submitted, we can only wait to find out exactly what he reported and how much of what he reported the American people will be allowed to see. But the mere fact that Mueller’s probe has apparently ended, apparently with no new indictments forthcoming, raises significant questions about how Mueller’s investigation was conducted.

First and most importantly, it is hard to conceive that Mueller could end his investigation without actually interviewing Donald Trump. Bill Clinton was interviewed by Ken Starr. Hillary Clinton was interviewed by the FBI. Ken Dilanian at NBC surmised that Trump’s lawyers had made it clear to Mueller that he would plead the Fifth if he was called for an interview and therefore Mueller felt it would not be worth the subpoena and court fight to try to question him. Instead, he simply accepted Trump’s lawyers’ written answers. But I think it might be worthwhile for the country to see that the President of the United States is pleading the Fifth when questioned, regardless of the fact that merely doing so says nothing about his guilt or innocence. So question number one is why Mueller never directly questioned Trump.

Second, it is also hard to believe that Don Jr. was not indicted at all. There is certainly evidence that he was attempting to conspire with the Russians, with the Trump Tower meeting being the most prominent. In addition, it is unclear whether Don Jr. was one of the Trump Organization executives that Michael Cohen was keeping informed about his progress on Trump Tower Moscow. There is also evidence that Don Jr. engaged in obstruction of justice by attempting to hide, in coordination with his father, the true purpose of the Trump Tower meeting. He may have also lied to Congress about the extent of his awareness and involvement in the progress of the negotiations to build Trump Tower Moscow. It seems likely that Mueller may be a member of what James Comey called “the chickenshit club” and decided not to indict Don Jr. because he did not have full confidence he could win. So, again, it will be interesting to see, if Barr allows us, what Mueller has to say about why he declined to indict Don Jr.

In addition, Mueller’s treatment of Jared Kushner is similarly confounding. Kushner clearly had an unusual number of contacts with the Russians, even attempting to set up a communication channel with Putin outside of the view of US intelligence services by using secure communications facilities inside the Russian embassy. He did this during the transition at the same time Mike Flynn was also speaking to Russians, promising to lift Russian sanctions as payback for what Flynn advisor K.T. McFarland said was Russia having “just thrown the USA election” to Trump. Kushner lied about these contacts multiple times, not only to the American people but also on his security clearance forms. Kushner was also heavily involved in the decision to fire James Comey, another instance of potential obstruction of justice. While Kushner seems to have less exposure to Mueller, considering the limited scope of his investigation, it will be ineresting to see what Mueller has to say about Kushner’s actions.

It is also interesting that Mueller has ended his probe with so many legal actions involving the Special Counsel’s office still ongoing. Mueller’s office is in the middle of court battles to get information from two apparent witnesses, Andrew Miller, an associate of Roger Stone’s, and a mysterious company that is owned by a foreign government. His office is also still reviewing the voluminous amounts of data it received in the raid on Roger Stone’s various residences and offices and still has Stone’s case to prosecute. Stone’s prosecution has a real possibility of uncovering new evidence that could be relevant to Mueller’s inquiries. Finally, both Michael Flynn and Rick Gates are still awaiting sentencing, with Gates at least still apparently cooperating in ongoing investigations. Again, it seems odd for Mueller to end his probe with these issues still outstanding.

Lastly, there are smaller fish whose prosecution Mueller seems to be abandoning. As an example, Mueller got so far as to offer Jerome Corsi a plea agreement which Corsi refused to sign. Apparently, Mueller will now not be prosecuting Corsi at all. Again, it seems unusual for Mueller to abandon the prosecution of a target who refused a plea agreement.

Of course, we have no idea what Mueller is going to report and many of these issues will probably be covered. The actions of Trump himself, Don Jr., and Jared Kushner may not have risen to the level to warrant a criminal indictment but may well be covered as part of the counter-intelligence section of his investigation. Obviously, other DOJ attorneys will pick up the Special Counsel’s outstanding litigation. Other offices may pursue cases against Don Jr., Kushner, and Corsi. Mueller may also have sealed indictments that have yet to be revealed, although current reporting indicates otherwise. Hopefully, all of this will become clear when we begin to see details from the report.

Mueller’s investigation has left a whole trail of breadcrumbs that point to a broad conspiracy that he now seems to have abandoned. Who was the “senior Trump campaign official” who was directed to get Stone to contact Wikileaks and who directed that campaign official? What is the connection of Manafort’s discussion with Kilimnick about a Ukrainian peace deal and his giving Kilimnick internal Trump polling data? What did Manafort think Kilimnick was going to do with that polling information and was he already aware of Russia’s interference in the election and believed this information would help? What is the entire story behind the transition team’s and administration efforts to lift the Russian sanctions? How many Trump campaign officials were aware that the Russians were offering dirt on Hillary and how early in the campaign did they know it? What other information relating to Russia did Michael Cohen provide to Mueller that has not yet been revealed? How long did the effort to get Trump Tower Moscow off the ground last? Why did Trump’s rhetoric parrot the Putin line so closely? Why did virtually all Trump campaign officials lie about their contacts with Russia? Who in the campaign was directing Stone in his communication with Wikileaks and how extensive were those contacts? All of these questions and more were broached in Mueller’s indictments but, in so many cases, the answers were missing or redacted in his filings? If those redactions showed no criminal activity, then what was the point of the redactions? Why give Flynn and others just a slap on the wrist for their crimes when the information they provided led to no further prosecutions?

Distressingly, with the exception of Stone, all these outstanding questions were raised as part of indictments that never went to the heart of the crimes they implied. Now it’s quite possible that Mueller will make all this clear from his report. But it also seems clear that he has interpreted the scope of his investigation quite narrowly. Some of the answers to all the questions above are being handled and can be handled by other DOJ jurisdictions. In addition, separate investigations are continuing involving the Trump Organization, the Trump Foundation, and the Trump Inauguration Committee. Those investigations include tax fraud, insurance fraud, bank fraud, serious campaign finance violations, basically the whole gamut of the Trump family racketeering enterprise.

However, by restricting the scope of his investigation and apparently deciding not to bring broad conspiracy or obstruction of justice indictments, Mueller has basically punted the ball over to the Democrats in the House of Representatives. It will now be up to the Democrats to pursue that broader conspiracy and the resulting obstruction of justice using the information that Mueller provides, assuming Trump and Barr let them get it. It will up to the Democrats to pursue Trump’s abuses of the Emoluments Clause. It will be up to the Democrats to look at Trump’s tangled history with the Russians and probable connection to money-laundering. It will be up to the Democrats to expose the swamp of corruption Trump’s entire administration swims in and the broad abuses of power that Trump commits.

Perhaps that is the way it should be. But Mueller’s refusal to pursue the strands of the investigation that he revealed, perhaps to be picked up by other prosecutors or addressed in detail in his report, can’t help but leave the impression that the legal system, that Mueller, has failed us, failed to adequately protect us and punish those who engaged and abetted an attack on the fundamental core of our democracy, free and fair elections. Again, perhaps that is not the job of the legal profession, although it would seem it should have an important role. And it is once again left to Democrats to expend their political capital, which the structure of our democracy already makes difficult for them to win, and to once again put their policy agenda on hold, in order to provide to the American people the answers to the questions that Mueller has left hanging and to do the right thing for the country.