by Dan Bongino
Add all this up, and Mueller did not have the necessary elements of an obstruction case based on the “evidence” in the public record. No hard-and-fast proof that the president actively or purposefully interfered with the FBI investigation had surfaced.
Mueller may have considered or fantasized that all of these instances of Trump’s discussing the investigation would create a preponderance of evidence that might hoodwink a jury into convicting a president. But it is a safe bet that from the moment he took the job of special counsel, Mueller had doubts about ever being able to prosecute a sitting president or an impeached one. He knew this was a legal loser of a case. He knew that many legal experts were on the fence when it came to the constitutionality of indicting a sitting president. And he knew his obstruction case would be dead on arrival in court.
But he appears to have latched on to an interpretation of a particular law, 18 U.S.C. § 1512(c)(2) to drive an obstruction case. Here’s the key section of the law that Mueller homed in on:
(c) Whoever corruptly—
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences or impedes any official proceeding, or attempts to do so [is guilty of the crime of obstruction].6
The key phrase here is “or otherwise obstructs.”
Will Chamberlain, a lawyer, journalist, and web publisher, has written that Mueller telegraphed his focus on this statute back on January 8, 2018, when his team, requesting an interview with the president, mentioned it had questions about “the president’s awareness of and reaction to investigations by the FBI, the House, and the Senate into possible collusion,” “the President’s reaction to Attorney General Jeff Sessions’ recusal from the investigation,” and “whether or not [James] Comey’s May 3, 2017 testimony led to his termination.”
As Chamberlain astutely puts it: “These questions were tells.”
In other words, like an amateur poker player, the Mueller team had tipped its collective hand. “None of these questions related to possible collusion by the Trump campaign with the Russian government,” Chamberlain writes. “They were all clearly targeted at potential obstruction by the President. And President Trump’s legal team knew it.”7
Since Mueller knew he was on extremely tenuous ground when it came to actually indicting Trump, he knew he needed a shrewd, legally solid defense to file obstruction charges against Trump. Otherwise, even if he did find a magical tape recording or testimony that proved Trump had actively and intentionally tried to undermine and stop the FBI or special counsel from fulfilling its investigatory duty, Trump would likely never stand trial. Section C, then, was his last, best hope. He would have to make a case that the broadly worded statute applied, but apparently he believed it did. Still, he must have known he was on shaky ground.
And in December 2018, he must have felt the earth truly quake. Any doubts he had about bringing charges against Trump were suddenly confirmed. His case was shot.
BARR COMES DOWN
A week after Jeff Sessions submitted his resignation, Donald Trump nominated William Barr as his new attorney general. This would be Barr’s second rodeo, so to speak. He had run the DOJ for President George H. W. Bush from 1991 to 1993.
On December 20, 2018, the Wall Street Journal broke the news that Barr had sent a memo, prior to his nomination for the attorney general position, to Rod Rosenstein criticizing the Mueller probe’s apparent obstruction-of-justice case as “fatally misconceived,” in a story titled “Trump’s Attorney General Pick Criticized an Aspect of Mueller Probe in Memo to Justice Department.”8
Barr sent the twenty-page document to Rosenstein on June 8, the Journal reports, noting he was offering his thoughts as a “former official” who hoped his “views may be useful.”9
Those thoughts, based on reports Barr had read in the media suggesting that Mueller was considering obstruction charges against Trump, attack the very idea that the special counsel would consider questioning the president or charging him with being misguided: “As I understand it, his theory is premised on a novel and legally insupportable reading of the law. Moreover, in my view, if credited by the Justice Department, it would have grave consequences far beyond the immediate confines of this case and would do lasting damage to the Presidency and to the administration of law within the Executive branch.”10
The memo calls Mueller’s approach “grossly irresponsible”11 and insists that Mueller should not be allowed to force the president to undergo questioning. It continues:
I know you will agree that, if a DOJ investigation is going to take down a democratically-elected President, it is imperative to the health of our system and to our national cohesion that any claim of wrongdoing is solidly based on evidence of a real crime—not a debatable one. It is time to travel well-worn paths; not to veer into novel, unsettled or contested areas of the law; and not to indulge the fancies by overly-zealous prosecutors.”12
Ouch.
With that throw-down, Barr lays out his arguments against Mueller, even specifying the conditions he believes would justify a president being charged with obstruction. But Barr notes that the current case Mueller seems to have built doesn’t come close to matching the level needed to press his case.
Evidently, Rosenstein was not persuaded by Barr’s memo; he certainly didn’t appear to curb Mueller’s pursuit of the case.
But as of December 2018, once Barr was nominated and his memo was leaked, Mueller knew that any obstruction charges he might propose filing against Trump would never see the light of day. The future head of the Department of Justice—Mueller’s soon-to-be-confirmed boss—was dead set against that. And Barr wasn’t just objecting to Mueller’s actions; he was openly contemptuous of them, using words like “over-zealous,” “misguided,” and “dangerous.”
In other words, Barr’s barrage was an accurate assessment.
And when the memo became public, it left Mueller in a bind.
THE FACE-OFF
Mueller, no doubt, vehemently disagreed with Barr. It’s easy to imagine he was furious that he couldn’t use the scorched-earth tactics honed by his team against the president. There would be no predawn raid on the White House or Trump Tower. No midnight mug shot. Not even a polite question-and-answer session in the Oval Office. No interview, no indictment, no nothing. Game over. His new boss had declared that he believed the case for waging an obstruction investigation of the president was fatally flawed, was unmerited, and would potentially damage the executive branch’s ability to set policy and guide the nation.
But that didn’t mean Mueller was ready to just give up. He still needed a big win because, as I’ve theorized here, his ultimate goal, aside from crippling Team Trump, has always been to rescue the reputation of the FBI. And that includes rehabilitating former FBI director James Comey, who, critically, would be the key witness in any obstruction case, as well as the agents who allowed Glenn Simpson, Christopher Steele, and other alarmist Obama and Clinton acolytes to fuel the fabrication of a Russia conspiracy. That’s why Mueller followed Christopher Steele’s reports—to try to make them come true. And if he couldn’t make them come true, he could give them a thin patina of credibility. That’s why he went after Manafort so hard—to try to force him to turn on Trump and the rest of the campaign. That’s why he spent 675 days searching in vain for any evidence to show that the special counsel investigation was not a frivolous witch hunt and that his beloved FBI, DOJ, and pals working there hadn’t been so grossly wrong.
Filing obstruction charges also, on some level, had to be personal. Mueller’s own reputation was at stake. Nobody is going to call his investigation write-up “The Special Counsel’s Report That Rod Rosenstein Authorized.” It has his name on it, unofficially—the Mueller report—and it is having na
tional and international implications. It’s the capstone on a career.
So he needed to write a report that would make the investigation look good. Like it had a sliver of integrity. Like the bureau hadn’t fallen for something hook, line, and sinker and then leaked a toxic storyline that tore the country in two.
So what did the special counsel do? Robert Mueller decided to go all-in. I believe he thinks that Barr’s memo—which is a clear assault on Mueller’s reputation and investigation—shows that Barr is out to protect the president at all costs. So he told his team to let it all hang out as they constructed the report. They laid out the “facts” in as negative a light as possible and they left out key exculpatory details. They stressed that the optics had looked awful and that people on Trump’s campaign team had behaved in odd ways. That there had been contact between the campaign and Russians. That Manafort had arranged to have polling information sent to “his long-time business associate Konstantin Kilimnik, who the FBI assesses to have ties to Russian intelligence.”13 That Trump had made statements they construed as blurring the line between understandable musing and calculated meddling.
And then, to inflict the most damage of all, they cataloged at least ten instances in which Trump was involved in exchanges that they think could point to obstruction (“could” being the operative word; logic dictates that these exchanges also could not point to obstruction). Mueller’s team also spelled out three issues that are potentially damaging when viewed without context: that Trump’s office had provided him with a unique level of influence and power over official proceedings, staff, and potential witnesses; that the evidence pointed to a range of other possible personal motives behind the president’s conduct, including “whether certain events…could be seen as criminal activity by the President, his campaign, or his family”; and finally, that “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.”14
The Mueller report piles on in numbing detail information about alleged bad behavior, contradictions, appearances, and key dossier figures such as Manafort. You get the sense that the writers hoped the report would become an encyclopedia of embarrassments to the administration and to Barr. I believe Mueller thought that if his team succeeded in presenting an avalanche of “evidence” against Team Trump, then Barr would stop it from being released. For Mueller, that would be a win because the Democrats could then spend the next two years yelling, “Cover-up! Cover-up!” (which Nancy Pelosi predictably began howling in May 2019) and could continue crippling the administration.
But Barr surprised everyone.
First, he decided to release a four-page, topline summary of the report.
In it, Barr ignores the relentless cataloging of Mueller’s team. Instead, he gets straight to the basics: the special counsel’s report confirmed that the Russian government interfered in the 2016 presidential election, but investigators “did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities,” he writes.15 As for obstruction charges, Barr notes that he and Rosenstein have concluded “that the evidence developed during the special counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense. Our determination was made without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.” But Barr also shares the final, pointed line of the report’s conclusion, which I will revisit in a few pages: “While this report does not conclude that the president committed a crime, it also does not exonerate him.”16
Mueller still refused to go quietly. He sent Barr a letter complaining about the attorney general’s summary, a letter he must have known would be leaked to the media. Or rather, it’s about the media’s interpretation of the summary. He doesn’t say Barr got the specific details wrong. Rather, it seems he was upset that the limited overview does “not fully capture the context, nature, and substance” of the full report. Says Mueller:
There is now public confusion about critical aspects of the results of our investigation. This threatens to undermine a central purpose for which the Department appointed the Special Counsel: to assure full public confidence in the outcome of the investigations.17
Mueller’s letter to Barr, in keeping with the tactics that defined so much of the probe, was leaked, resulting in a chorus of charges from Democrats accusing Barr of being a Trump apologist who was whitewashing the Mueller report’s findings.
Then Barr decided to turn the tables on the special counsel and all the hand-wringing Never Trumpers with a move that was clearly a double-barreled “Up yours” message to all the Russiagate cheerleaders. He did the math and realized that, as harsh as some of the slanted report was, it was better to release it and move on rather than to bury it and have Trump endure a constant barrage of obstruction claims. Can’t you just hear all the whining about how Barr was working on Trump’s behalf to silence Mueller? To suppress the special counsel’s work would have just continued the absurd storylines that had been festering for three years.
So he released the Mueller report.
With minimal redactions.
So the world could now see the “results,” such as they were, for themselves.
GASLIGHT NATION
Let me be totally clear where I stand on the Mueller report: it is a 448-page object lesson in gaslighting.18
At no point in the two-volume opinion piece disguised as an investigative report does the special counsel address the elephant in the room: whether the foundational, raw intelligence that ignited the investigation was ever fully vetted. There is no mention of the possibility that this intelligence was actually Russian misinformation fed to the FBI or that it was served on a platter to the FBI as the final step in a calculated information-laundering operation by a team hired to provide opposition research for Hillary Clinton. A team, as I have demonstrated in these pages, that was relying on a plug-and-play script to destroy Donald Trump’s candidacy and subsequent presidency.
I’m not alone in my feelings about this.
“The dossier is blandly described several times as ‘unverified allegations compiled’ by Mr. Steele,” writes Kimberley Strassel, dissecting the Mueller report for the Wall Street Journal.19
She goes on:
Once Mr. Mueller established that the dossier was a pack of lies, he should have investigated how it gained such currency at the highest levels of the FBI. Yet his report makes clear he had no interest in plumbing the antics of the bureau, which he led from 2001-13. Instead, he went out of his way to avoid the dossier and give cover to the FBI.20
This is not just a conservative viewpoint. Marcy Wheeler, a left-leaning civil liberties journalist who writes the Empty Wheel blog and has admitted that she contributed information to the Mueller investigation about someone she believed was a hostile actor to U.S. interests, raised the specter of misinformation back on March 6, 2017. Wheeler speculates that since the DNC hired Simpson, who then hired Steele, it was entirely possible that Russian intelligence agents learned about the DNC-Simpson-Steele relationship when they hacked the DNC. If that’s the case, then they knew Steele was working to gather anti-Trump material. And if they knew that, then they were in the perfect position to feed him bogus stories.
Also, Steele had been feeding memos on Russia to the State Department since 2009, according to multiple reports. Wheeler and others have wondered if, over the years, Russia had learned about Steele. Look, I’m speculating here. So is Strassel. So is Wheeler. Let’s be up front: our speculation is informed but unverified. Every single raw intelligence report Steele filed was unverified, too. And in twenty-twenty hindsight, it sure looks like Steele’s speculation was completely uninformed. Mueller’s crediting one group of unverified reports but discount
ing and dismissing others makes absolutely no sense. Sure, Steele may have helped the bureau previously. But “unverified” means unverified: nobody knew if the Trump-Russia information Steele provided was true.
And the warning signs about Steele were everywhere. He couldn’t even keep the basic details of his story straight when he told the State Department’s Kathleen Kavalec, just weeks before the first FISA warrant was sworn to by the FBI, that the “Russian consulate” in Miami had played a key role in the collusion scandal. The catch: there is no Russian consulate in Miami. And now it is clear, $35 million of investigatory legwork later, that the vast majority of those allegations cannot be proven, likely never happened, and are seemingly part of an active disinformation campaign.
Ironically, when Mueller fired off his brief letter to Attorney General William Barr on March 27, 2019, taking issue with Barr’s four-page report summary, he couched his complaints in what he tried to spin as his ultimate mission. Asserting that the public is confused about “critical aspects of” the investigation, he writes: “This threatens to undermine a central purpose for which the Department appointed the special counsel: to assure full public confidence in the outcome of the investigations.”21 (Emphasis added.)
