Column: A Tale in Two Volumes

By Dan FitzPatrick

I am tired of being told what to think.  So, when the Mueller Report came out, I turned off the TV and radio and sat down to read it.  All of it.  All 448 pages.  It took me quite some time (media pundits who claim to have read it all in 45 minutes merely showcase their unseriousness).  It was worth it.

The report consists of two volumes.  The first deals with the issue of Russian interference in the 2016 election, which was the primary purpose of the Special Counsel’s appointment and the principal focus of its charge. The second deals with questions of obstruction of justice, which relates to the primary charge to the extent that individuals acted in ways which could have the effect of impeding the Special Counsel’s investigation.  My reaction to the two volumes differs.

Volume 1 — Collusion

I was incredibly impressed with Volume 1.  I’ve had some experience reading documents involving legal issues and evidentiary proceedings, and discussions regarding standards of culpability.  I found this aspect of the report to be thorough, detailed, illuminating and convincing.  Also, instructive and worrisome.

I believe that the Special Counsel’s team did a service to the nation through the use of its investigative tools (some of which cannot be disclosed) to uncover detailed evidence of Russian state manipulation of public opinion and theft of documents with the clear intent to sow public discord and effect the US election.  While I remain concerned about the threat to our civil liberties of the potential for improper use of the tools utilized, the information discovered may actually be used to advance and protect those same civil liberties.  (I am not suggesting the ends justify the means, only that these issues are not so cut and dried in the real world of national security.)

What did we learn?  First, actors based in Russia, apparently with government approval, conducted an extensive and sophisticated campaign to use social media to influence public opinion in the US.  They did this through crafting false social media personas through which they published content intended to sow discord, inflame emotion, incite division, exacerbate preexisting biases and prejudices, and generally confuse our political discourse in advance of a national election.

They were unwittingly aided in doing so by unsuspecting individuals who shared this content with others, and by an unquestioning media uninterested in verifying material that sold newspapers, generated internet clicks, increased ratings and/or supported their own narrative biases.  They also cleverly managed (without “leaving their fingerprints”) to organize activists to hold rallies and protests, both for and against the two presidential candidates.  While this sounds like the stuff of conspiracy theorists, it is real and now fully documented.  It should scare us all stiff.

Second, elements in the Russian military hacked multiple organizations, including the Democratic National Committee, and orchestrated the release of damaging information through fake internet accounts (DCLeaks and Guccifer 2.0) and via Wikileaks.  (Julian Assange’s abrupt asylum termination and arrest one week before release of the Mueller report was no coincidence.)  The detailed story of this act of cybercrime reads like a spy novel.  Unfortunately, it is very, very real, and should serve as a wake-up call to those in Congress and the Administration regarding the urgent need to focus resources on combatting electronic warfare and cyber terrorism. Would that they would now turn their energies to those topics.

My biggest takeaway from Volume 1 – frightening to learn – is how relatively easy it was and is to influence public opinion falsely and surreptitiously.  If anything, this places greater urgency on the need for the media to resume its historic function as verifier of the accuracy of information prior to its publication.  This is why the Fourth Estate enjoys the First Amendment’s guarantee of freedom of the press.  But the privilege is predicated on the duty, and by abdicating its responsibility to the truth in favor of commercial success, the media jeopardizes its credibility and ultimately its own protection.  Unfortunately, given the mainstream media’s current posture of defense and denial in the face of Volume 1’s conclusions, the prospects for introspection and reformation appear to be bleak.

Volume 2 – Obstruction

In contrast, I found Volume 2 to be a “hot mess” — full of detail, some quite embarrassing to the president and others, but repetitive, confusing and ultimately inconclusive.  Upon reflection, I believe Volume 2 was not a service to the nation, but rather a cynical “play to the crowd” in partial justification for the considerable amount of time and money spent on the investigation.

A prosecutor’s job – and by extension the job of a Special Counsel – is binary:  deciding whether to prosecute or not.  The Special Counsel performed that job in Volume 1; in Volume 2 he punted.

To some extent I understand and sympathize with his position.  The Justice Department has a decades-old policy that a sitting president cannot be indicted.  This is grounded in the principle that the president must not be distracted from fulfilling his Article II responsibilities (this does not prevent his indictment after leaving office).  From the very start, this took away the Special Counsel’s option to recommend prosecution and should have been the beginning and end of the discussion.  But that conclusion would not have satisfied the public and the media and would have enveloped the Special Counsel in a firestorm of criticism.  And so we were treated to the narrative portions of Volume 2.

But the Special Counsel did not explicitly decline prosecution either, leaving the decision to the Attorney General.  In that I believe he failed in living up to his charge.   Based on my reading – as confirmed by the Attorney General’s statement and rationale for declining prosecution – he could easily have done so.  The fact that he did not strikes me as a political move, unbecoming of the man and his mission.

Surely the Special Counsel anticipated that the Attorney General would reach the conclusion he did.  What then might be the purpose of his action?

With legal action ruled out, the only remaining path to remove a sitting president is political action:  impeachment by the House and conviction by the Senate.  Knowing that the bulk of the report would be made public, I believe the intent of Volume 2 was to lay out whatever evidence the Special Counsel and his team had gathered on the president’s conduct for consideration by Congress for possible impeachment purposes.  Predictably, its release revived calls for just that action.  But it is highly unlikely that the president would be impeached on this evidence, and zero chance that he would be convicted.  So what exactly was accomplished by Volume 2 other than providing more evidence (as if we needed it) that the president is no saint and was naively unschooled at the time in the Machiavellian nature of Washington politics.

I have a few more observations.

First, I believe the president was set up.  The Special Counsel acknowledges that the president’s conduct can be viewed as having two phases or stages.  Initially, when the investigation into Russian interference began, he was fully cooperative.  The Special Counsel attributes that to the fact that he believed there was never any collusion and that he had been informed numerous times by the then Director of the FBI, James Comey, that he was not personally under investigation.  Only after Comey was fired, and his intentionally leaked notes triggered appointment of the Special Counsel, did the obstruction narrative begin and the focus turn to the president.  As even the Special Counsel admits, the president was understandably upset that no one would publicly confirm what had been told him in private, that he was not under investigation for collusion.  His later actions and unguarded comments proved problematic, but in the end did not constitute obstruction.

Second, I think the focus on obstruction of justice, and the very clear articulation of the legal grounds for determining whether, when and how obstruction occurs, may be highly problematic for other actors in the 2016 presidential campaigns, most notably Hillary Clinton.

Given the time, effort and money spent on evaluating the president’s actions for possible obstruction, only to have the Attorney General conclude that the evidence did not support that conclusion, it will be very difficult (if not impossible) for the Department of Justice to ignore or avoid reinvestigating the widely-reported destruction of physical evidence related to the use of Clinton’s private email server.

I personally do not believe that Comey’s July 5, 2016 public exoneration of Clinton (which was both a violation of DOJ policy and an inappropriate arrogation of the Attorney General’s authority) prevents reexamination of the evidence (though many people previously given immunity will likely avoid consequences).  If anything, restoring the damaged reputations of the FBI and DOJ requires it.

In July of 2017 I wrote an article entitled “The Russians Are Coming!” in which I made the following comment:

I do not know Robert Mueller, but by all accounts he is a man of integrity who served his country as FBI Director with distinction.  If we had to have a Special Prosecutor (I would have preferred an independent fact finding commission), he seems an ideal choice.  I am not troubled by his friendship with Comey, nor by his hiring of associates who had contributed to the Clinton campaign.  I believe he will acquit his charge honestly and honorably.  My problem is with the concept of a Special Prosecutor; history has shown that these assignments – with almost unlimited authority and budget – tend to expand in timeframe and scope to the point where the original purpose is lost in the pursuit of some secondary issue.  Prosecutors seek convictions; rarely, after spending considerable time and money, do they conclude “there’s nothing there.” My concern is that they tend to go on and on until they find something, anything, to prosecute. 

I still don’t know Robert Mueller, but I’m afraid my concern of two years ago has now been realized.  I had hoped his report would put a definitive end to the “collusion delusion,” but it has merely extended the “obstruction obsession.”  Beware the law of unintended consequences:  the sword of justice may now turn against those who may have sought to subvert it for their own, corrupt purposes.