Have you read the Mueller Report?
August 30, 2019
To the Editor:
Editor’s note: The following letter was originally sent to Rep. Sean Duffy (R-Wisconsin) on Aug. 12.
On June 17 I emailed asking if you had read the Mueller Report. On July 1 I received your emailed response stating in that regard simply that, “Special Counsel Mueller’s probe found no evidence of collusion between the Trump campaign and the Russian Government.” and that, “Additionally, the special counsel recommended no charges against President Trump related to obstruction of justice.”
Having myself read the Mueller Report, from which I quote below, I’m puzzled as to how you arrived at those two conclusions.
First: the statement that “Special Counsel Mueller’s probe found no evidence of collusion between the Trump campaign and the Russian Government.” is false and misleading because:
1. The Mueller probe was not investigating “collusion,” which Mueller states “is not a specific offense or theory of liability found in the United States Code, nor is it a term of art found in criminal law.” Indeed, Mueller had no authority to investigate “collusion”; his authority was to investigate “any links or coordination between the Russian government and individuals associated with the Trump Campaign.” His report states that “like ‘collusion’, ‘coordination’ does not have a settled definition in federal criminal law. We (the Office of Special Counsel) understand coordination to require an agreement — tacit or express — between the Trump Campaign and the Russian government on election interference.” That understanding is why “the Office’s focus in analyzing questions of joint criminal liability was on conspiracy as defined in federal law.” which also requires evidence of an agreement.
2. So, since the investigation looked for evidence of what it had authority to look for, namely “coordination,” and did not look for evidence of what it had no authority to look for, namely “collusion,” it is false and misleading to say that Mueller found no evidence of collusion.
3. But the Mueller investigation did identify “numerous links between the Russian government and the Trump Campaign.” And it “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 ….” But this evidence of action taken — that is, links and mutual expectation of benefits — was not, without more, evidence of an “agreement” to take action, sufficient to support criminal charges of conspiracy.
4. And Mueller spells out that there may have been reasons why evidence that was obtained was not sufficient: “The investigation did not always yield admissible information or testimony, or a complete picture of the activities undertaken by subjects of the investigation.” Also, “some of the individuals we interviewed or whose conduct we investigated — including some associated with the Trump Campaign — deleted relevant communications or communicated during the relevant period using applications that feature encryption or that do not provide for long-term retention of data or communications records.” So: “Accordingly, … the Office cannot rule out the possibility that the unavailable information would shed additional light on (or cast in a new light) the events described in the report.”
5. In that regard the report contains numerous redactions in reference to ongoing matters; and refers in Appendix D to the fact that “Certain matters assigned to the Office by the Acting Attorney General have not fully concluded as of the date of this report.” Some of those matters include the 11 cases specified in the report’s Appendix D. (In addition, it can be noted that the FBI’s counterintelligence investigation into the question of the President’s susceptibility to Russian influence has never been a part of the Mueller probe.)
6. In sum: your statement that “Special Counsel Mueller’s probe found no evidence of collusion between the Trump campaign and the Russian Government.” is false and misleading: (a) because the Mueller probe did not investigate “collusion,” but “conspiracy”; and (b) because Mueller’s conclusion was not that there was no evidence, but that there was insufficient evidence as a matter of criminal law, to establish “conspiracy” between the Russian government and individuals associated with the Trump Campaign; and (c) because Mueller’s office was prevented from a full investigation by actions of interviewees and others being investigated — including some associated with the Trump Campaign — from obtaining evidence which might, when added to the evidence that was obtained, have been sufficient to support criminal charges of ‘conspiracy’.
Second: the statement that “Additionally, the special counsel recommended no charges against President Trump related to obstruction of justice.” is also false and misleading, because:
A. The Special Counsel states at the beginning of his Report on the obstruction of justice that because of an internal Department of Justice legal opinion that a sitting president cannot be indicted on federal criminal charges, the Mueller office “determined not to make a traditional prosecutorial judgment.” The Special Counsel, in other words, considered himself precluded by virtue of that DOJ legal opinion — and regardless of however much evidence he might find — from bringing any criminal charges against the President. It is, therefore, palpably false to say that the Special Counsel “recommended no charges against President Trump related to obstruction of justice.”
B. Not only false, but misleading in its implication that Mueller concluded there was nothing there. Because, as Mueller does point out:
(1) while the DOJ internal legal opinion precludes criminal indictment of a sitting president — and while in Mueller’s view even if there were no such precluding DOJ opinion a criminal accusation might preempt an impeachment proceeding, a possibility that might in and of itself argue against bringing a criminal law indictment against a sitting president — under the DOJ opinion against criminal indictment “a criminal investigation during the President’s term is permissible”; and
(2) that same DOJ internal opinion “recognizes that a President does not have immunity after he leaves office”; so
(3) “we conducted a thoroughly factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available”; and
(4) as a result, “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.”
Representative Duffy, am I to take it that your July response to my question is an accurate indication of your willingness or capability as representative of Wisconsinites of the 7th Congressional District to respond to us constituents on a matter of national security and national election security?
Have you read the Mueller Report?
Thomas P. Dickson