Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Meaning and Implications of the Mueller Report
I have finally finished reading the Mueller Report, slowly and with care. In one sense, the Report is more accessible than its intimidating four-hundred-plus pages may at first appear. The executive summaries of Volumes I and II are short, clear, and illuminating. Before voting in the 2020 primaries or general election, every literate American might consider reading them.
On the other hand, it may be challenging for readers who are not sophisticated lawyers to figure out what is going on in terms of the Report’s bottom lines. The Report repeatedly finds in Volume I that agents of the Russian government interfered in the 2016 election to help elect Donald Trump and further finds that high-level Trump campaign officials applauded and sought to receive Russian help, including in secret, yet the Report concludes that the facts were not sufficient to establish a criminal conspiracy between Russian agents and Trump campaign officials. In addition, Volume II of the Report appears to conclude that, on several occasions, President Trump’s conduct satisfied the three elements of an obstruction of justice offense in violation of federal criminal law—that is, an obstructive act, a nexus to an official proceeding, and corrupt intent—yet the Report declines to expressly conclude that the President obstructed justice.
With those interpretive difficulties in mind, this Post aims to clarify the meaning and potential implications of the Mueller Report, including whether impeachment is warranted. What follows is long for a blog post, but at least this report on the Mueller Report—this meta-report—is substantially shorter than the Mueller Report itself!
1. The Mueller Report is, first and foremost, a testament to truthfulness. In the tradition of the very best trial lawyers, the Report is at its best in slowly and methodically confirming—and, in some cases, finding for the first time—the facts of the matter. The Report systematically refutes the many false or misleading statements made by the President and his surrogates on the subjects of (1) Russian interference in the 2016 election to help the President win, and (2) the numerous statements and actions that the President made or took in order to impede the federal criminal investigation into Russian interference.
2. Volume I of the Report confirms that there can be no reasonable disagreement about whether the Russians intervened in the 2016 presidential election in significant ways—specifically, through social media influence campaigns, cyber-hacking, and personal contacts with Trump officials—to help the President win the election. It is unfortunate that the President still refuses to acknowledge the truth of that unanimous finding of the American intelligence and law enforcement communities, let alone use the bully pulpit of the presidency to condemn Russian interference and warn that there will be serious consequences if it happens again. Judging from the Report, the President apparently fears that calling attention to the fact of Russian interference would call the legitimacy of his election into question. Whether or not Russian interference does call the legitimacy of his election into question, the facts are what they are.
More importantly, the President has a constitutional responsibility to protect our country from such foreign intrusions, and that responsibility extends well beyond his personal interests. That point is relevant to questions of impeachment for failing in his constitutional responsibilities under Article II, as discussed below.
3. Volume I did not find sufficient evidence to establish a criminal conspiracy between the Trump campaign and agents of the Russian government (“collusion,” which the President has continuously denied, is not a crime). Volume I found no conspiracy mostly because Trump officials and Russian agents did not enter into an express agreement ahead of time to do something clearly illegal. But to repeat, the Report documented well more than one hundred interactions between Trump campaign officials or advisors and Russians tied to the Russian government, which is very likely unprecedented for a U.S. presidential campaign. In some of those instances, Russians were offering ways to help the Trump campaign win the election and they were seeking to curry favor with Donald Trump and his advisors. In some of those instances, the President or his son, Donald Trump Jr., expressed enthusiasm about receiving Russian help, whether publicly or privately. Accordingly, the idea that the Special Counsel’s investigation of Russian interference was a “witch hunt” against the President and his campaign should not be taken seriously. The Russians wanted Trump to win and they wanted to wield influence in a future Trump administration. What is more, the President and his surrogates sought to hide those facts.
Ironically, what Volume I does clearly establish is . . . collusion as that term is commonly understood outside the law. Collusion is defined as “secret or illegal cooperation or conspiracy, especially in order to cheat or deceive others.” Volume I demonstrates, repeatedly, “secret . . . cooperation.”
4. Volume II of the Report, on the President’s actions that potentially qualify as obstruction of justice, paints a devastating picture of a serially mendacious President who is partially saved from the consequences of his poor judgment only by his incompetence—specifically, his inability to compel his subordinates to obey his commands to obstruct justice.
5. In another illustration of great lawyering, the Report is scrupulous and fair-minded in laying out all of the facts and legal analysis with respect to each potential episode of obstruction of justice and in making important distinctions about the strength of the obstruction case in each episode. Regarding several episodes, the Report laid out alternative interpretations of the facts, some of which were helpful to the President. Examples of such episodes include (1) the President’s conduct toward his former personal lawyer and “fixer” Michael Cohen, and (2) the President’s efforts to prevent public disclosure of a Trump Tower meeting on June 9, 2016 involving Donald Trump Jr., the President’s son-in-law Jared Kushner, campaign chairman Paul Manafort, and at least five other people, including a lawyer connected to the Russian government who promised “dirt” on Hillary Clinton.
But the Report did not identify substantial arguments on both sides with respect to all of the relevant episodes. Regarding several of them, the Report concluded that all three elements of an obstruction of justice offense—an obstructive act, nexus to a proceeding, and corrupt intent— were satisfied. Examples of such episodes include the President’s efforts to (1) fire Special Counsel Robert Mueller, (2) curtail Mueller’s investigation, and (3) order White House Counsel Don McGahn to deny that the President had previously ordered McGahn to fire Mueller. In examining those episodes, the Report did everything but announce the conclusion that the President obstructed justice.
The Report’s reasoning with respect to obstruction of justice appears persuasive. For example, McGahn offered highly credible testimony that the President ordered him to fire Mueller, which qualifies as an obstructive act. When the President gave the order, “substantial evidence” (to quote the Report) existed that the President was aware that he was under investigation by a federal prosecutor who could present evidence of the President’s criminality to a grand jury, which satisfies the nexus requirement. And “substantial evidence” also existed that the President’s efforts to remove the Special Counsel were linked to the Special Counsel’s investigation of the President’s own conduct, which is indicative of the President’s corrupt intent.
6. The Special Counsel is a great lawyer and a genuine patriot, but he unfortunately fell short in several respects. First, he should have demanded early in the investigation that the President submit to a personal interview under oath, as Presidents George W. Bush and Bill Clinton did. The Special Counsel waited more than a year-and-a-half to request such an interview, and when the President declined, the Special Counsel expressed concern about delaying completion of the Report due to anticipated litigation with the President over the matter, which seems like a problematic reason not to demand an interview. As a result, we do not know as much about what the President knew and when he knew it as we might otherwise. (Even Sarah Huckabee Sanders, the White House Press Secretary, admitted to the Special Counsel's team of lawyers that she had been publicly untruthful.) Instead, all we have are the President’s answers to written questions, which were presumably prepared by his lawyers, and which repeatedly decline to directly answer the questions asked by expressing the President’s lack of recollection.
Second, the Report apparently determined that the President obstructed justice several times, but it refused ever to announce that conclusion. The Report explained that regulations of the U.S. Department of Justice prohibit the Special Counsel from indicting a sitting President and that it would be unfair to the President for the Special Counsel to announce such a conclusion without bringing a criminal case against him, because the President would then lack the chance to clear his name in court. But the President is no ordinary subject of an investigation; he is the most powerful person in the country, if not the world. He has alternative means at his disposal to defend himself and to attempt to prove his innocence, as he, his surrogates, and his Attorney General, William Barr, have been illustrating with their defenses of the President’s conduct.
Third, the Special Counsel did not require the President’s son, Donald Trump Jr., to testify before a grand jury. Nor did the Special Counsel bring campaign finance charges against him for conspiring with WikiLeaks or for soliciting Russian help in obtaining information damaging to the Clinton campaign. The Special Counsel’s explanations (for example, that he could not prove the monetary value of the Russian assistance) do not seem especially persuasive, although I confess that I am no expert on federal campaign finance law. Professor Rick Hasen is such an expert, however, and he has strongly criticized the Special Counsel’s decision not to pursue campaign finance violations against Trump Jr.
Those problems with the Special Counsel’s performance make me fear that the President’s bullying, intimidation, and obstruction were partially effective in persuading the Special Counsel not to fully execute his responsibilities in order to avoid being fired, in order to avoid the perception of a “witch hunt,” or in order to increase the chances that the Report would see the light of day. In other words, the President’s bad behavior may have caused the Special Counsel to partially lose his objectivity.
7. So what should happen now? Is impeachment constitutionally appropriate? Professor Laurence Tribemakes a persuasive case that the Report “invites Congress to take action, either through impeachment or by exposing a disgraced but politically acquitted Trump to criminal prosecution when he is no longer president.” Among other pivotal passages, the Report concludes that “the protection of the criminal justice system from corrupt acts by any person—including the President—accords with the fundamental principal of our government that ‘[n]o [person] in this country is so high that he is above the law.’” (Vol. II, pp. 180-81, quoting U.S. v. Lee, 106 U.S. 196, 220 (1882)).
I do not think that congressional Democrats should lash out in anger and rush to impeach the President; there is more factfinding, legal analysis, and other normative analysis to do, which the House Judiciary Committee, the House Intelligence Committee, and the House Oversight and Reform Committee will presumably perform in the months ahead. But I am confident that impeachment should be on the table, for at least four reasons.
First, as a matter of statutory interpretation, there is no reason to think that the broadly worded federal obstruction statute, 18 U.S.C. §1512(c)(2), does not apply to the President. (There are other provisions of federal criminal law that are potentially applicable, but that is the main one discussed in the Report.) Section 1512(c)(2) provides that "[w]hoever corruptly . . . obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both." It is not clear how to read that provision as excluding the President.
Second, applying that statute to the President enhances, rather than undermines, the constitutional separation of powers. Not only does Article II of the U.S. Constitution not license the President to act with the corrupt intent of obstructing justice, but the Take Care Clause of Article II, which obliges the President to “take care that the laws be faithfully executed” (my emphasis), prohibits the President from doing so, as I have argued and as the Report agrees (see Vol. II, p. 170). Attorney General Barr is simply wrong in having previously concluded that the President is incapable of obstructing justice when he acts facially within the scope of his Article II powers to, say, remove executive branch officials.
Third, as discussed above, there were several episodes regarding which the Report persuasively determined that the three elements of an obstruction offense were satisfied by the President.
Fourth, those obstruction offenses were not mere technical legal violations, nor were they efforts to avoid embarrassment or civil liability with respect to a matter that is primarily personal, such as an extramarital affair. President Clinton, who was the second President in American history to have been impeached (the first was Andrew Johnson during Reconstruction; President Richard Nixon resigned before he could be impeached), had an affair with a White House intern decades younger than him who may have been vulnerable to the vast power differential between them. In my judgment, President Clinton’s underlying conduct (that is, the affair) was legal but immoral—indeed, despicable. His lying about the affair under oath, however, was illegal.
Even so, I do not think that President Clinton’s lying under oath was impeachable because there was no obvious harm to the nation. Illegality is relevant to an analysis of the propriety of impeachment, but it is neither necessary nor sufficient for impeachment to be warranted. The Constitution gives the House of Representatives the power to impeach the President, and it gives the Senate the power to try the President and remove him from office, because the ultimate question is whether the President engaged in political misconduct—not necessarily illegality—so grave as to constitute “high Crimes and Misdemeanors.”
In contrast to President Clinton’s misconduct, President Trump’s misconduct implicates obvious and profound harm to the nation—namely, failing in his constitutional responsibilities to protect the nation from foreign interference (as covered in Volume I of the Report), and attempting to frustrate the Special Counsel’s investigation into Russian interference in the 2016 election (as covered in Volume II). We cannot claim to be a democracy if the President and the rest of us are prepared to permit foreign adversaries to significantly influence the outcomes of our elections. And it is spectacularly shortsighted to believe that such interference will always benefit one political party.
Indeed, even if one disagrees with the Special Counsel’s legal analyses of criminal conspiracy and obstruction of justice, it is difficult to defend the President’s consistent refusals to acknowledge Russian interference and decry it, just as it is difficult to defend the President’s obstructive conduct as other than egregious. Nothing is more dangerous to American democracy than the President’s influence over federal criminal law enforcement, and this President has repeatedly abused that influence.
8. Is impeachment politically wise for the Democrats to pursue? I do not know. It may not be, both because of how divisive an impeachment proceeding would be and because of the potential backlash that may result if Democrats proceed without any Republican support. I understand and partly agree with the concern that, given the threat he poses to the American constitutional system, nothing is more important in 2020 than preventing the President’s re-election, either because he loses in the Republican primary or because he loses in the general election.
But those fears about political consequences may be all wrong. And there are times when matters of basic constitutional principle matter more than a political calculus. Just as Republicans should have considered President Barack Obama’s nomination of Chief Judge Merrick Garland to the U.S. Supreme Court in good faith even if it was not politically expedient for them to have done so, so there is a strong argument that Democrats should not shy away from impeaching the President here even if doing so might jeopardize the extent of their electoral success in 2020.
To put it bluntly, if impeachment is not an appropriate response to the President’s consistent untruthfulness and abuses of power, which—to repeat—were aimed in part at frustrating a federal criminal investigation of vital national importance, then perhaps little or no Presidential misconduct is impeachable. There is no safe or neutral course of action here. Assuming confirmation of the Report’s findings in the House investigations to come, not impeaching this President for the misconduct detailed in the Report would set an awful precedent for future toleration of gross presidential misconduct, whether during President Trump’s second term or during the tenure of a future untrustworthy President of either party.
In short, if Democrats want Americans to take the Mueller Report seriously, then Democrats need to act like it deserves to be taken seriously rather than validate the fiction that the President did nothing potentially impeachable. And Americans may need more than just the Report to understand what is at stake; they may need to see the movie—that is, public hearings.
9. Is conviction and removal appropriate? I do not know at this point and I do not want to prejudge the issues. The purpose of a trial is to render a verdict after considering all of the evidence. If there ends up being an impeachment trial, Senators really, really should try to put partisanship aside and take seriously their oaths of fidelity to the Constitution. They should review closely the law, the facts, and the application of the law to the facts. They should also ask themselves whether the President engaged in political misconduct so serious that it qualifies as “high Crimes and Misdemeanors.”
Senators, like their colleagues in the House, should also consider the Nixon precedent. President Nixon engaged in conduct generally similar, although arguably less serious, than the Presidential misconduct documented in the Mueller Report, and no one today seriously argues that the impeachment of President Nixon would not have been warranted he he refused to resign. In those less partisan times, there was substantial bipartisan support for impeachment as the appropriate response to obstructive conduct by a President aimed at derailing an investigation into campaign misconduct.
Having worked in the Senate on four Supreme Court nominations (including the recent Kavanaugh nomination), I am acutely mindful of the current limits of constitutional leadership in the Senate. But there are at least some Senators who take their constitutional responsibilities seriously, and history will judge each Senator on how he or she executes those responsibilities in this case. There is virtue in requiring each Senator to cast a vote—to publicly take a position on whether the President’s conduct is sufficiently acceptable to him or her that the President should remain in office.
10. Whatever happens with respect to impeachment, Attorney General Barr should publicly defend his conclusion that the President did not once commit the crime of obstruction of Justice, notwithstanding what the Mueller Report determines in Volume II. He should also defend his misrepresentations of the contents of the Mueller Report both in his March 24 letter, which he issued in the weeks after the report was handed to him, and during his subsequent press conference, which took place an hour before the partially redacted version of the Report was publicly released. If he cannot plausibly defend his conclusions and actions, he should resign. The Attorney General is the nation’s chief law enforcement officer; he or she is not supposed to be the President’s personal lawyer and “fixer.”
11. Not only the Attorney General, but Special Counsel Robert Mueller, Deputy Attorney General Rod Rosenstein, and former White House Counsel Donald McGahn should also be among those called to testify before the relevant congressional committees. Among other things, Americans should hear from them whether they believe that the President adequately resisted Russian interference and obstructed justice—and why.
12. One last thought, and on a somewhat different subject: I really hope the Justices of the U.S. Supreme Court read the Mueller Report. It offers a vivid illustration of what it means to take seriously what the President of the United States actually says and does. Compare Trump v. Hawaii, 138 S. Ct. 2392 (2018) (purporting to overrule Korematsu v. United States, 323 U.S. 214 (1944), but embracing Korematsu’s deferential scrutiny of Presidential conduct, thereby disabling courts from distinguishing genuine national security concerns from unconstitutional animus against a minority group).