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Robert Mueller, Lawyer

To restate the obvious, Robert Mueller, of late special counsel investigating our corrupt, criminal president, is a lawyer. Nothing wrong with that. It was essential for the job he did. No one will ask him to run the Federal Reserve because that is a job for an economist. No one will ask him to be Surgeon General because that is a job for a medical doctor.

Becoming a lawyer in the United States usually involves earning a degree that typically takes three years, and most accredited law schools only admit students who have a bachelor’s degree, so becoming a lawyer typically requires seven years of education past high school. Not everyone wants to go to college, much less law school. The difference between lawyers and non lawyers is not one of intelligence, but of education. Lawyers are not smarter than anyone else, they just have a specific form of training.

Mueller’s recent public statement, announcing the closure of his special counsel office and restating some of the conclusions he came to, was very much the statement of a lawyer. It should not surprise anyone that people who are not lawyers found some parts of his statement hard to understand. The law is a language unto itself. It mostly uses ordinary English words that many people think they know the meaning of, but have a particular, potentially slightly unusual meaning to lawyers. Sometimes lawyers sprinkle weird Latin phrases into their writing and speech, but Mueller knew he was speaking to the general public, so he avoided doing that.

Herewith is a blow by blow recapitulation of Mueller’s statement for the non lawyer public:

In the first paragraph of the printed version, he says: “The appointment order directed the office to investigate Russian interference in the 2016 presidential election. This included investigating any links or coordination between the Russian government and individuals associated with the Trump campaign.” Mueller is also a former Marine and director of the FBI. He follows the rules. Lawyers tend to like the rule of law, but some of them can be a bit defiant about certain rules. which is not inconsistent with the ethos of U.S. politics and law, resting as they do on a revolution under the philosophical justification that the governed retain always the right to throw off existing government and start over, however unrealistic that may be in the modern world.

Lawyers have a bad reputation in our society, but lawyers operate under a specific, explicit set of rules and in most states, must have a license to practice, which the state can revoke if they violate the rules for practice. For Mueller, the “appointment order” is an important document because it told him what he was supposed to do as special counsel. A guy like Mueller was highly unlikely to exceed the initial assignment. So we have two items: 1. Russian interference in the 2016 election. And 2. links or coordination between the Russian government and anyone working for the Trump campaign.

In the second paragraph, he just explains that he made a public statement because the investigation is done and he is closing the office. He says the attorney general has made his report “largely public,” so he is not going to get into the argument between the House Judiciary Committee and the attorney general over release of the entire report.

Mueller then said, “Let me begin where the appointment order begins: and that is interference in the 2016 presidential election.” He then restates what we already knew — a grand jury indictment alleges that Russian military officers “launched a concerted attack on our political system,” that they “stole” private information that they then released using “fake online identities” and through Wikileaks. The purpose was to “damage a political candidate.” The parts of his statement about Russian interference, at this point, are not very interesting. He has prosecuted whom he can, but there is nothing he can do to prosecute Russians, unless they come to the United States, as did Maria Butina.

Next, Mueller said, “The indictments allege, and the other activities in our report describe, efforts to interfere in our political system. They needed to be investigated and understood.

“That is among the reasons why the Department of Justice established our office. That is also a reason we investigated efforts to obstruct the investigation.” These two statements, at first glance, look like a non sequitur. How did we get from Russian efforts to interfere in the election to “efforts to obstruct the investigation”? Huh.

Then, “The matters we investigated were of paramount importance. It was critical for us to obtain full and accurate information from every person we questioned.

“When a subject of an investigation obstructs that investigation or lies to investigators, it strikes at the core of the government’s effort to find the truth and hold wrongdoers accountable.” Going back to the point above, that Mueller is not the kind of guy who is likely to exceed the limits of his assignment, you may have noticed that his initial description of his instructions makes no mention of any attempt to obstruct his investigation. Why would he investigate attempts to obstruct the investigation?

As special counsel, Mueller was a cop in some sense, or an FBI agent, a glorified, federal cop. He relied heavily on the investigative expertise of the FBI in doing his work. He was sort of like the detective at the station house who assembles all of the evidence the other cops bring to him and comes up with the overview of what happened. Cops really don’t like it when anyone tries to stop them from doing their jobs. We hear a lot of discussion about cops arresting people for resisting arrest. Obstruction of justice is sort of like a more sophisticated form of resisting arrest. Noticing it and pursuing it is built into how cops think and act. They do it automatically.

Now Mueller talked about the report, which has two parts. The first part looked at the efforts of the Russians to interfere in the election. “This volume includes a discussion of the Trump campaign’s response to this activity, as well as our conclusion that there was insufficient evidence to charge a broader conspiracy.” This gets into the stupidity defense — that Mueller chose not to indict Donald, Junior for the infamous meeting in June 2016 with the Russians that he, Jared Kushner, and Paul Manafort all attended, and which Donald, Senior, tried to conceal the purpose of, because he doubted he could prove that the people attending the meeting willfully sought a thing of value to help the campaign, and that Senior was trying to fool the public, not Congress or the FBI, which is not illegal.

So no indictment of the major players on those grounds.

Mueller goes on, “The order appointing me Special Counsel authorized us to investigate actions that could obstruct the investigation.” So he did have explicit permission to look at this issue.

Then comes the parts of the statement that caught most people’s eyes: “As set forth in our report, after that investigation, if we had confidence that the President clearly did not commit a crime, we would have said that. We did not, however, make a determination as to whether the President did commit a crime.” This is hugely interesting partly because Trump started saying the moment his hand picked attorney general summarized the report that it “exonerated” him completely, which almost no one agrees with.

More importantly, it gets to the question of whether Trump committed any crime. This is perhaps the most lawyerly part of Mueller’s statement and potentially the most puzzling for non lawyers. Why say it that way? It is not unreasonable to ask, What the hell does that even mean?

Mueller explains, again, in a very lawyerly way: “under long-standing Department policy, a President cannot be charged with a federal crime while he is in office.” Mueller follows the rules. The rules prohibited him from charging Trump with a crime. This is a critical point, and the sort of point that makes more sense to lawyers than it does to the general public. “Charging the President with a crime was therefore not an option we could consider.”

Broadly, there are two possible reasons why a prosecutor would choose not to charge someone with a crime: 1. because the available evidence indicates that the person did not commit the crime, and 2. because the rules forbid charging. Mueller is not saying that Trump did commit a crime, but when he says he did not charge Trump with a crime because the rules forbade him to do so, it is not unreasonable to infer that, in fact, Trump did commit a crime and that Mueller would have charged him had the rules he was operating under not forbade it.

So, um, why bother? Mueller just said, in effect, that he knew going in that he would never charge Trump with a crime. For anyone who saw Trump as the primary target from the beginning, that is disappointing. Muller explains:

  • First, the opinion explicitly permits the investigation of a sitting President because it is important to preserve evidence while memories are fresh and documents are available. Among other things, that evidence could be used if there were co-conspirators who could now be charged.
  • And second, the opinion says that the Constitution requires a process other than the criminal justice system to formally accuse a sitting President of wrongdoing.

That second paragraph refers, implicitly, to the impeachment process. This is subdued, lawyerly Mueller coming as close as he ever will to screaming, “IMPEACH TRUMP!!!” The statement is laconic. Mueller does not waste words. He is not a garrulous guy, in public, anyway. Why the bit about the importance of preserving evidence if he did not think his investigation had, well, you know, PRESERVED A LOT OF EVIDENCE. Huh.

Trump is not the only party to this imbroglio who might have obstructed justice. On the one hand, the Department of Justice announced that the special counsel referred no further indictments. On the other hand, there are multiple other investigations under way, including those the House of Representatives is pursuing, with Trump committing obstruction of justice daily by refusing to cooperate with them.

He closes by saying repeatedly, in different ways, that he has nothing else to say and will not say anything beyond what is in his report. This sounds mostly like trying to fend off the demand that he testify to the House of Representatives about the investigation. We’ll see if that works.

But he made one final point that merits restatement because it is one thing we can still do something about: “I will close by reiterating the central allegation of our indictments — that there were multiple, systematic efforts to interfere in our election. That allegation deserves the attention of every American. Thank you.”

Mueller would never put it this way, but we can conclude from what he did say that Trump is stupid and criminal.

The House should impeach him.

Written by

Uppity gay, Buddhist, author, historian.

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