Still Mulling Mueller

The supposed summary of the Mueller report has not seemed to move the general disapproval with President Trump in any significant fashion. His approval rating still sits in the low 40s and occasionally dips down into the high 30s. Democratic presidential candidates rarely field any questions about the Mueller investigation or impeachment. A new poll indicates that only 29% believe that Mueller’s report exonerates the President even with the Barr memo giving Trump the chance to create that media narrative. It seems, then, that the voters opinion of Trump is already pretty well baked in and there is not much that looks to change that.

Now, there is a remote possibility that what gets released from the Mueller report may change the dynamic, but that seems doubtful at this point. Certainly, the public is still overwhelmingly in favor of seeing the report released.

The Barr summary raised more questions than it answered regarding what Mueller actually uncovered. But it also managed to move the media narrative beyond the question of whether the Trump campaign engaged in a conspiracy. Instead that narrative is now more focused on obstruction of justice and whether Trump and his associates were and are compromised by foreign powers as detailed by Adam Schiff. That media shift, along with the Barr’s refusal to provide any detail from the Mueller report, has made those who still talk about a potential conspiracy seem like dead-enders solely out to get Trump.

Be that as it may, the fact that Mueller chose not to pursue a conspiracy charge is one of those perplexing and unanswered questions, among many, about the end of the Mueller report. Most of those questions were eloquently rehashed by Adam Schiff in what Schiff admitted Mueller may not have determined was a conspiracy but was what he called “collusion”. Now Mueller may have determined that all those contacts and meetings with the Russians or those closely associated with the Putin’s regime were separate, isolated incidents that were not connected to an overarching conspiracy. Clearly, it was well known in certain circles that the Trump campaign was just an enormous “Let’s Make A Deal” sign and it seemed everyone anywhere near the campaign wanted to get in on the grift. So that is clearly a possible explanation for no conspiracy charges.

But, if that is the case, then the really nagging question is why did Mueller enter into cooperation agreements with Flynn, Gates, and most importantly, Manafort in return for relatively minor sentences. As I understand such an agreement, those defendants would have to make a proffer to the prosecution where they would lay out all the information relevant to the investigation they could provide. At that point, the prosecution can decide whether that information is important enough to warrant entering into a cooperation agreement with an associated plea.

If all three had little or no information relating to any Trump campaign officials or associates coordinating with Russian, the specific brief of the Mueller investigation, then why would Mueller accept their proffer. Mueller specifically said of Flynn at his aborted sentencing hearing, “His early cooperation was particularly valuable because he was one of the few people with long-term and firsthand insight regarding events and issues under investigation. Additionally, the defendant’s decision to plead guilty and cooperate likely affected the decisions of related firsthand witnesses to be forthcoming with the (special counsel’s office) and cooperate”. Now it’s quite possible that most of that cooperation probably involved the transition period and potential obstruction of justice, although the term “long-term” seems to indicate more than that. Flynn was also constantly on the campaign trail with Trump and much have had some insight into how the campaign acted.

The decision with Gates and particularly Manafort is even more curious. Gates was involved in both the campaign and transition and, as Manafort’s right hand man, must have had significant insight into Manafort’s motives and activities. Manafort was almost exclusively involved in the campaign and the Special Counsel’s office claims his lies about passing Trump campaign internal polling data and other contacts with Kilimnick were “very much to the heart of what the special counsel’s office is investigating”. That information alone would seem to be enough for a conspiracy charge of some kind. In addition, Manafort was at the Trump Tower meeting specifically looking for dirt from the Russians on Hillary Clinton and must have had some information to share about that. So why did Mueller not bring a conspiracy charge, at least relating to Manafort specifically?

One theory is that, without Manafort’s cooperation and testimony, there simply wasn’t enough evidence for Mueller to believe he could gain a conviction. Which then leads to the possibility that Trump’s dangling of a pardon to Manafort kept him from truthfully testifying. And, if so, does Mueller have any evidence to show that. Mimi Rocah puts it this way, “would Manafort’s cooperation have made the difference in ‘did not establish’ a criminal conspiracy with Russian gov’t if he hadn’t lied to prosecutors for 50 hours? In other words, did Trump’s pardon-dangling work?”.

If there is evidence to indicate that possibility, then Barr’s unilateral decision not to pursue obstruction of justice charges is outrageous. Under Barr’s unique legal theory where the President can not be guilty of obstruction if there is no underlying crime, all a President would have to do is make sure the obstruction of justice was effective enough to ensure the underlying crime could not be prosecuted. And that would be exactly what Trump has done.

Of course, all of this is informed and uninformed speculation, navel gazing to the extreme. Which is, of course, why the American public needs to and is demanding to see the details of the Mueller report. Barr’s attempt to provide the President with time to declare exoneration has failed and the longer he takes to release the report to Congress and then the public, the less the public believes his summary which he now claims is not a summary. But I continue that the evidence regarding a conspiracy in the either the Mueller or the counter-intelligence report is substantial. Mueller just couldn’t put enough together to believe he could get a conviction if he actually charged it.