You know that movie with Bruce Willis and the kid who says “I see dead people”? In the end, it turns out everyone is already dead. Now imagine there are people who don’t believe that. They insist the story ends some other way. Spoiler alert: the Mueller Report ends with no collusion. No one is going to prosecute anyone for obstruction. That stuff is all dead. We all saw the same movie.
Yet there seem to still be questions from those who don’t get it. And while it’s doubtful that the stoic Robert Mueller will ever write a tell-all book, or sit next to Seth Meyers and Trevor Noah to dish, he may be called in front of Congress. If he is, here’s some of what he should be asked.
1) You didn’t charge President Donald Trump with “collusion,” obstruction, or any other new crime. Tell us why. If the answer is “the evidence did not support it,” please say so.
2) Your Report did not refer any crimes to Congress, the SDNY, or anyone else. Again, tell us why. If the answer is “the evidence did not support it,” please say so again.Advertisement
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3) Despite making no specific referrals, the Report does state, “The conclusion that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of the office accords with our constitutional system of checks and balances and the principle that no person is above the law.” Why did you include such a restating of a known fact? Many have read that line to mean you could not indict a sitting president and so you wanted to leave a clue to Congress. Yet you could have just spelled it out—”this is beyond my and the attorney general’s constitutional roles and must/can only be resolved by Congress.” Why didn’t you?
4) Similarly, many believe they see clues (a footnote looms as the grassy knoll of your work) that the only reason you did not indict Trump was because of Department of Justice and Office of Legal Counsel guidance against indicting a sitting president. Absent that, would you have indicted? If so, why didn’t you say so unambiguously and trigger what would be the obvious next steps?
5) When did you conclude there was no collusion, conspiracy, or coordination between Trump and the Russians such that you would make no indictments? You must have closed at least some of the subplots—the Trump Tower meeting, the Moscow Hotel project—months ago. Did you consider announcing key findings as they occurred? You were clearly aware that there was inaccurate reporting, damaging to the public trust. Yet you allowed that to happen. Why?
6) But before you answer that question, answer this one. You made a pre-Report public statement saying Buzzfeed’s story that claimed Trump ordered Michael Cohen to lie to Congress was false. You restated that in the Report, where you also mentioned that you privately told Jeff Sessions’ lawyer in March 2018 that Sessions would not be charged. Since your work confirmed that nearly all bombshell reporting on Russiagate was wrong (Cohen was never in Prague, nothing criminal happened in the Seychelles, and so on), why was it only that single instance that caused you to speak out publicly? And as with Sessions, did you privately inform any others prior to the release of the Report that they would not be charged? What standard did you apply to those decisions?
7) A cardinal rule for prosecutors is to not publicize negative information that does not lead them to indict someone—”the decision does the talking.” James Comey was criticized for doing this to Hillary Clinton during the campaign. Yet most of your Report’s Volume II is just that, descriptions of actions by Trump that contain elements of obstruction but that you ultimately did not charge. Why did you include this information so prominently? Some say it was because you wanted to draw a “road map” for impeachment. Why didn’t you just say that? You had no reason to speak in riddles.
8) There is a lot of lying documented in the Report. But you seemed to only charge people with perjury (traps) early in your investigation. Was that aimed more at pressuring them to “flip” than at justice per se? Is one of the reasons several of the people in the Report who lied did not get charged with perjury later in the investigation because by then you knew they had nothing to flip on?
9) In regard to the June 2016 Trump Tower meeting, where derogatory information on Hillary Clinton was offered (but never given), you declined prosecution. You cited in part questions over whether such information constituted the necessary “thing of value” that would have to exist, inter alia, to make its proffering a campaign finance violation. You don’t answer the question in the Report, but you do believe information could be a “thing of value” (the thing of value must exceed $2,000 for a misdemeanor and $25,000 for a felony). What about withholding information? Could someone saying they would not offer information publicly be a “thing of value” and thus potentially part of a campaign finance law violation? Of course I’m talking about Stormy Daniels, who received money not to offer information. Would you make the claim that silence itself, non-information, is a “thing” of value?
10) You spend the entire first half of your Report, Volume I, explaining that “the Russians” sought to manipulate our 2016 election via social media and by hacking the Democratic National Committee. Though there is a lot of redacted material, at no point in the clear text is there information on whether the Russians actually did influence the election. Even trying was a crime, but given the importance of all this (some still claim the president is illegitimate) and the potential impact on future elections, did you look into the actual effects of Russian meddling? If not, why not?
11) Everything the Russians did, according to Volume I, they did on Obama’s watch. Did you investigate anyone in the Obama administration in regard to Russian meddling? Did you look at what they did, what was missed, whether it could have been stopped, and how the response was formed? Given that Trump’s actions towards Russia followed on steps Obama took, this seems relevant. Did you look? If not, why not?
12) Some of the information gathered about Michael Flynn was picked up inadvertently under existing surveillance of the Russian ambassador. As an American, Flynn’s name would have been routinely masked in the reporting on those intercepts in order to protect his privacy. The number of people with access to those intercepts is small, and the number inside the Obama White House with the authority to unmask names is even smaller. Yet details were leaked to the press and ended Flynn’s career. Given that the leak may have exposed U.S. intelligence methods, that it had to have been done at a very high level inside the Obama White House, and that the leak violated Flynn’s constitutional rights, did you investigate? If not, why not?
13) The New York Times wrote that “some of the most sensational claims in the [Steele] dossier appeared to be false, and others were impossible to prove. Your report contained over a dozen passing references to the document’s claims but no overall assessment of why so much did not check out.” Given the central role the Steele Dossier played in your work, and certainly in the investigation that commenced as Crossfire Hurricane in summer 2016, why did you not include any overall assessment of why so much did not check out inside such a key document?
14) Prosecutors do not issue certificates of exoneration. The job is to charge or drop a case. That’s what constitutes exoneration in any practical sense. Yet you have as your final line that “while this report does not conclude that the President committed a crime, it also does not exonerate him.” Why did you include that, and so prominently?
15) You also wrote, “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.” You argue elsewhere in the Report that because Trump is a sitting president, he cannot be indicted, so therefore it would be unjust to accuse him of something he could not go to court and defend himself over. But didn’t you do just that? Why did you leave the taint of guilt without giving Trump the means of defending himself in court? You must have understood that such wording would be raw meat to Democrats, and would force Trump to defend himself not in a court with legal protections, but in an often hostile media. Was that your intention?
Peter Van Buren, a 24-year State Department veteran, is the author of We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People and Hooper’s War: A Novel of WWII Japan.