Collusion, Obstruction and Impeachment

Finally! The Mueller Report

Since the release of the long-awaited Mueller Report, I’ve noticed that there seems to be a great deal of confusion among the general public. There are countless opinions, articles and news segments that focus on the release of the (redacted) report, its key conclusions, and what should happen next.  Did the report prove that the President and/or members of his campaign “colluded” with Russia?  Did the Robert Mueller and his team establish that the President was guilty of “obstructing” justice by interfering with the investigation?  Should the US Congress move to “impeach” Donald Trump and attempt to remove him from office?   I’m going to attempt to summarize some of the key facts and hopefully clarify some common misunderstandings and misinformation that I hear being floated in the media and online. 

Collusion

One of the most important things to understand, and I think the one thing that is most misunderstood, is the whole concept of collusion.  While the word is not entirely new to most Americans, we have probably heard more about it in the last couple years than the rest of our lives combined.  

Here are a few things to understand:

First of all, collusion is not a crime.  It is important to realize that the simple act of collusion is not, in and of itself, a criminal act.  The word simply means cooperating with another person or group to achieve some sort of common goal.  The communication is often done secretly, and in many cases can be illegal, but that is not always the case. 

For my last birthday, my wife wanted to surprise me by planning a weekend trip to Chicago to see the musical Hamilton.  To keep me in the dark, she secretly communicated about her plans with my mother-in-law, my parents, and my cousin. While she went to great lengths to keep these plans secret, they clearly were not illegal. Her actions most certainly met the dictionary definition of collusion, as she was involved in a “secret agreement or cooperation” with various members of my family. 

There are other words in the English language that we normally associate with illegal acts but are not necessarily illegal.  Bribery is one word that generally has a negative connotation, but that often falls far short of being illegal.  Is it illegal when my son “bribes” his sister with candy if she agrees to get up early and take care of the dog?  Just ask any parent how often they resort to bribing their children to encourage a change in behavior. 

The “NO COLLUSION!” crowd, no one more than the President himself, have conditioned the public to such an extent that we’ve lost an understanding of the word itself.  The result of this campaign of dis-information is that anything short of the headline “Mueller Charges Trump with Collusion” is considered (by some) to be an exoneration.  

The Collusion Conclusion

The odd thing about Trump’s fascination with the “NO COLLUSION” talking point is that the Mueller Report, along with an enormous amount of public information, absolutely proves that “collusion” between Trump and/or members of the Trump campaign and Russia, DID occur.  There are, in fact, so many instances and examples of collusion between the Trump campaign and Russia that there are entire books written about them.  My personal favorite is "Proof of Collusion" by Seth Abramson, which you can pick up here:

I am slightly disappointed that Mueller didn’t write his report in such a way as to use the word collusion exhaustively, to drive this point home, and to troll Trump incessantly. 

The objective of the Special Council’s report was not to prove “collusion,” which is not a legal term, but rather to investigate whether there was evidence of a criminal conspiracy between the campaign and Russia.  Because Robert Mueller is a law enforcement officer, he cannot charge Trump with collusion, nor would it be appropriate to lay out a case for it.  He did, however, lay out in detail, several very concerning, secret contacts and agreements between the Trump campaign and Russian individuals, government agents and suspected intermediaries. 

These include:

·       Trump campaign manager Paul Manafort (convicted felon) and his deputy Rick Gates (cooperating witness) provided detailed internal polling data to Konstantin Kilimnik, who US Intel believes is a Russian intelligence officer. 

·       Donald Trump Jr., Paul Manafort and Jared Kushner attended a meeting at Trump Tower with multiple Russian government officials to get “dirt on Hillary Clinton” as part of the Russian government’s “support for Donald Trump.”

·       George Papadopoulos, a Trump foreign policy advisor, secretly met with a contact (Joseph Mifsud), and attempted to organize a secret meeting between Donald Trump and Vladimir Putin.

·       Roger Stone (informal campaign advisor) communicated with Wikileaks, Julian Assange and Russian hackers to learn about and possibly help to coordinate the leaks of stolen emails damaging to the Clinton campaign.

·       Michael Flynn, who was a campaign advisor and Trump National Security Advisor, spoke on multiple occasions to Russian government officials about relaxing sanctions imposed by Barack Obama once Trump took office.

·       Michael Cohen, the President’s personal lawyer and “fixer”, was helping to negotiate business deals in Russia during the campaign. 

Like I said, there are entire books that go into detailed accounts of the above actions and more.  The question of whether the President and his campaign “colluded” with Russia is not at issue.  He absolutely, unequivocally, undeniably DID! The real headline of the Mueller Report should be “Mueller Unable to Prove Criminal Conspiracy with Russia Beyond a Reasonable Doubt,” as “NO COLLUSION” is both 100% FALSE and irrelevant to the investigation. 

Obstruction of Justice

So, how is it possible that, even with so much available information about contacts between the Trump campaign and Russia, Mueller was unable to prove “criminal conspiracy?” First, this is an extremely difficult charge to prove beyond a reasonable doubt.  Secondly, the actions of the Trump administration, including the President himself, made this difficult task nearly impossible.  The Mueller Report states, in no uncertain terms, that the inability to charge conspiracy was (at least in part) due to clear evidence of obstruction of justice, which is a criminal offense.  He then goes on to detail at least 10 different instances where Trump himself may have obstructed justice.  

These include, but are not limited to:

• Firing FBI director James Comey
• Attempting to fire Robert Mueller
• Encouraging witnesses to lie to investigators
• Dangling Presidential pardons in return for “loyalty”

Under normal circumstances, any one of the above instances could (and likely would) be prosecuted as obstruction of justice and would result in jail time. The Mueller Report clearly lays out the circumstances and evidence of obstruction, and it is likely that some, if not all, of these charges would result in a guilty verdict.  So why did Mueller decline to “charge” Trump with obstruction in his long-awaited report?  Why did AG William Barr decide to “clear” Trump of the obstruction charges before making the report available to Congress and the public? 

Put very simply, the Department of Justice operates under a guidance document that advises its officers not to charge a sitting President with a crime.  This guidance is not a law, and many very respected people disagree with the guidance and its application.  As far as I can tell, the thinking is that it would be too harmful to the country to have a sitting President go to trial while still attempting to perform the duties of his or her office.  Furthermore, if the President were found guilty, do we send them to jail?  Would the order of succession protocol be applied to a President who is incarcerated while in office? The clear preference of the DOJ is for Congress to consider the matter, holding hearings if necessary, and to determine the best course of action, up to and including impeachment.  It is certainly a valid argument, through I’m not sure how well it applies in our current situation. 

The logical argument for NOT charging a sitting President with a crime rests on three main assumptions:

• The job of President of the United States is extremely demanding and time-consuming. Charging POTUS with a crime would force them to dedicate too much time huddling with lawyers, sitting in a courtroom, and otherwise participating in the legal process.  This distraction could detract from the duties of the office and negatively impact the country.

• The degree to which a President’s indiscretion can negatively impact the country will generally be less than the disruption caused by a highly publicized trial. 

• Our country is based on the ideas of separation of powers, as well as checks and balances.  We expect our elected officials, most of all the President, to represent our country honorably and, most of all, legally.  In a case where the President fails to uphold these standards, Congress will step in and hold him or her accountable.  

In most administrations, I’d generally agree that the above assumptions are valid, and therefore that the DOJ guidance is probably appropriate.  Unfortunately, this is not most administrations.

• We currently have a President who spends more time on Twitter than speaking with his advisers.  We have a President who spends more time watching cable news than reading intelligence briefings.  We have a President who spends more time at campaign rallies and political fundraisers than visiting our troops or disaster victims.  We have a President who spends more time golfing at his private clubs than just about any other single activity.  Simply put, the President is not busy doing his job and working on behalf of the American people; he has plenty of time to devote to trial preparation. 

• President Trump’s crimes and indiscretions in office rise to a level we have never seen in this country.  The costs of his actions are almost impossible to calculate.  The damage that he has done to the country and to the office of the Presidency already far exceeds any additional damage that a highly publicized criminal trial might bring. 

• If we had a Congress that took its Constitutional responsibilities seriously, Donald Trump would be impeached and removed from office.  Due to the current makeup of Congress, it is extremely unlikely that this will happen.  This is not due to a lack of evidence or justification. It is simply due to partisan politics, where one party refuses to hold itself responsible for its actions.     

Impeachment

So, what happens next?  It is important to understand that impeachment is a process, not a single act of Congress.  It is not like proposing a bill, and then voting one way or the other.  The impeachment process begins first in the US House of Representatives.  In most cases, this starts with hearings, where evidence is presented, witnesses are interviewed, and positions debated.  Eventually, the articles of impeachment are drafted, and there is a vote.  If a majority of the House votes to impeach, then the process moves to the Senate.  In the Senate, there is a formal trial that is overseen by the Chief Justice of the Supreme Court, with the Senators as the jury.  To remove a President from office, at least 2/3 of the Senate must vote that way. 

With the current construction of Congress, it is likely the House would vote to impeach the President based on the available evidence (especially the obstruction of justice charges), but it is extremely unlikely that 2/3 of the Senate would vote to remove him from office.  Many Democrats, including Speaker Nancy Pelosi, have stated that taking up this process would therefore be an unnecessary distraction from their very full agenda, and that the voters could hold it against them in 2020.  Others feel that the evidence that is already available is strong enough to move forward with impeachment proceedings immediately. 

I personally believe that the most likely scenario is that the House proceeds with hearings (including interviewing AG Barr and Robert Mueller and others named in the report) to learn more before deciding on formal impeachment proceedings.  My feeling is that this would allow the Democrats to take on the hearings without completely ignoring their other legislative priorities.  It would indicate to the President and to Americans that the kind of behavior detailed in the Mueller Report will not be tolerated.  Politically, it will keep the President’s corrupt actions in the public view, and force members of Congress to take a stand on these issues.  I do not believe that it is acceptable to simply move on and wait for 2020.  That sends a message that the President is above the law, and that Congress cannot be trusted to fulfill its duty to act as a “check” on the executive branch.  As Senator Elizabeth Warren said recently, if our elected representatives decide that the President’s actions are acceptable, they should be forced to vote that way, and live with that vote for the rest of their lives. 

Whether the President is removed from office in 2019, 2020, or 2024, we must quickly come together as a country and determine how to recover and repair our fragile Democracy in the months and years to come.  The Trump administration, along with a complicit GOP, have proven that our system of government is not foolproof.  Severe corruption, aided by collusion and greed, has exposed some very big cracks in the armor of our Democracy.  We must learn from this period and prop up our institutions to make sure that we emerge stronger as a nation.  In future elections, we must elect leaders who believe in these institutions and who put our country and its citizens ahead of their personal ambitions.  Only then can we begin the long press of restoring our damaged standing in the world.