Wittes: The President Committed Crimes

A cautious analyst makes a strong claim.

If there’s a national security law analyst more reticent to get ahead of the facts and leap to conclusions than Benjamin Wittes, I have yet to encounter him. After a painstaking read through the redacted release of the “full” Mueller report, however, he has come to some bold conclusions.

I spent the week after the release of Special Counsel Robert Mueller’s report going through it section by section and writing a kind of diary of the endeavor. My goal was less to summarize the report than to force myself to think about each factual, legal, and analytical portion of Mueller’s discussion, which covers a huge amount of ground.

Here are five conclusions I drew from the exercise:

The president committed crimes.

There is no way around it. Attorney General William Barr’s efforts to clear President Donald Trump, both in his original letter and in his press conference the morning of the report’s release, are wholly unconvincing when you actually spend time with the document itself.

Mueller does not accuse the president of crimes. He doesn’t have to. But the facts he recounts describe criminal behavior. They describe criminal behavior even if we allow the president’s—and the attorney general’s—argument that facially valid exercises of presidential authority cannot be obstructions of justice. They do this because they describe obstructive activity that does not involve facially valid exercises of presidential power at all.

Consider only two examples. The first is the particularly ugly section concerning Trump’s efforts to get then-Attorney General Jeff Sessions to “unrecuse.”

The alleged facts are simple enough. According to Mueller, the president asked Corey Lewandowski to convey a message to Sessions. It was a request that Sessions reassert control over the special counsel’s investigation, make a speech in which he would declare that the president didn’t do anything wrong and that the special counsel’s investigation of him was “very unfair,” and restrict the special counsel’s investigation to interference in future elections. Lewandowski asked a White House staffer to deliver the message in his place; the staffer in question never did so.

A few factors are important to highlight here, all of them aggravating.

Lewandowski was not a government employee, so this was not an example of the president exercising his powers to manage the executive branch. Indeed, Trump very specifically did not go through the hierarchy of the executive branch. He tried to get a private citizen to lobby the attorney general on his behalf for substantive outcomes to an investigation in which he had the deepest of personal interests. What’s more, the step he asked Lewandowski to press Sessions to take was frankly unethical. Sessions recused himself from the Russia probe because he had an actual conflict of interest in the matter. In other words, the president of the United States recruited a private citizen to procure from the attorney general of the United States behavior the attorney general was ethically barred from undertaking.

But it gets worse, because Trump did not merely seek to get Sessions to involve himself in a matter from which he was recused. Trump wanted Sessions both to limit the scope of the investigation and to declare its outcome on the merits with respect to Trump himself. This action would have quite literally and directly obstructed justice. Limiting the jurisdiction of the special counsel to future elections would have, after all, precluded the indictments Mueller later issued for Russia’s hacking and social-media operations. It would have precluded the prosecutions of Paul Manafort, Michael Cohen, Mike Flynn, George Papadopoulos, and Rick Gates, as well. Nor is there any real complexity here with respect to Trump’s intent. As Mueller reports, “Substantial evidence indicates that the President’s effort to have Sessions limit the scope of the Special Counsel’s investigation to future election interference was intended to prevent further investigative scrutiny of the President’s and his campaign’s conduct.”

As a criminal matter, this fact pattern seems to me uncomplicated: If true and provable beyond a reasonable doubt, it is unlawful obstruction of justice. Full stop.

Another example: Mueller reports that after the news broke that Trump had sought to get then-White House Counsel Don McGahn to fire the special counsel, Trump sought to get McGahn to deny the story. He also sought to get him to create an internal record denying the story. McGahn refused.

The attempt to get McGahn to write an internal memo disputing the story is the crucial fact here. The president’s conduct might otherwise be defended as a mere effort to lie to the press, but one doesn’t order the creation of false internal documents for purposes of denying a published story. So the question is, first, whether what Mueller described as Trump’s “repeated efforts to get McGahn to create a record denying that the President had directed him to remove the Special Counsel” would have “the natural tendency to constrain McGahn from testifying truthfully or to undermine his credibility” if he told the truth. The second question is whether such a corrupt outcome was specifically intended by the president.

Mueller acknowledges that there is “some evidence” that the president simply thought the story was wrong and was proceeding on his memory. But Mueller is pretty clear that the weight of evidence “cuts against that understanding,” though—as always—he stops short of making that judgment explicit. Mueller previously concluded that McGahn’s underlying story was amply supported by the evidence, while it’s hard to believe the president would simply have forgotten an effort to fire Mueller. As to the president’s intent, Mueller is pretty unabashed: “Substantial evidence indicates that in repeatedly urging McGahn to dispute that he was ordered to have the Special Counsel terminated, the President acted for the purpose of influencing McGahn’s account in order to deflect or prevent scrutiny of the President’s conduct toward the investigation.”

Assuming that one believes this could be proved beyond a reasonable doubt, imagining this fact pattern as a count in an indictment is not difficult. It is hard to imagine a plausible defense based on the idea that pressuring an employee to create false government records by way of influencing his ability to tell the truth is within the president’s constitutional authority.

If one accepts, as I do, Mueller’s general reading of the obstruction statutes as applied to official presidential action, there are many more examples. When Trump leaves office, assuming statutes of limitations have not yet run out, someone will have to make the binary assessment, which Mueller did not make, of whether they amount to prosecutable cases. As a historical matter, the report leaves me with little doubt that the president engaged in criminal obstruction of justice on a number of occasions.

— The Atlantic, “Five Things I Learned From the Mueller Report

This is a damning and utterly convincing conclusion from, again, a man who is excruciatingly cautious in judgments. A man about whom Conor Friedersdorf once remarked—to Wittes’ glee,

I’d never choose Wittes to serve as my canary in a coal mine. I’d be afraid that he would somehow manage to keep chirping merrily even as all the miners had suffocated. But for those inclined to use heuristics to determine when to worry, Wittes is very useful. If even he is alarmed at the potential for abuse, everyone should be alarmed.

It’s fair to say Wittes was not a fan of Trump even before the report’s release. But he’s a guy who argued that Attorney General Bill Barr deserved the benefit of the doubt in his pledge to deliver an honest accounting of the report.

Further, even in the essay where his topline conclusion is that the President of the United States committed crimes—plural—Wittes’ other conclusions are Witteseque.

The president also committed impeachable offenses.

I suppose it would be hard to conclude that the President committed crimes and not believe that. Still, he observes that crimes and impeachable offenses are but “overlapping categories” and that there are things in the Mueller report which aren’t chargeable in criminal court that are nonetheless matters for which Congress could justly remove a President.

More to the point, though, Wittes concludes,

Trump was not complicit in the Russian social-media conspiracy.

Separating the wheat from the chaff is important, so let’s do so. While Trump has a great deal to answer for, Mueller unambiguously clears him—clears in the true sense of the word—of involvement in Russian efforts to interfere in the U.S. election by means of the Internet Research Agency’s social-media campaign.

Yes, the IRA duped some Trump campaign figures into promoting the group’s material, but none of those Trump campaign figures appears to have done so deliberately. Mueller’s statement that the “investigation did not identify evidence that any U.S. persons knowingly and intentionally coordinated with the IRA’s interference operations” is a stronger one than the language he uses elsewhere to indicate that evidence is insufficient to prove something. Here he actually seems to be saying that the investigation did not produce evidence at all of knowing participation in the Russian scheme by U.S. persons. We should take that at face value.

He’s less kind to Trump in his reading of a related matter, however,

Trump’s complicity in the Russian hacking operation and his campaign’s contacts with the Russians present a more complicated picture.

No, Mueller does not appear to have developed evidence that anyone associated with the Trump campaign was involved in the hacking operation itself. And no, the investigation did not find a criminal conspiracy in the veritable blizzard of contacts between Trumpworld and the Russians. But this is an ugly story for Trump.

Here’s the key point: If there wasn’t collusion on the hacking, it sure wasn’t for lack of trying. Indeed, the Mueller report makes clear that Trump personally ordered an attempt to obtain Hillary Clinton’s emails; and people associated with the campaign pursued this believing they were dealing with Russian hackers. Trump also personally engaged in discussions about coordinating public-relations strategy around WikiLeaks releases of hacked emails. At least one person associated with the campaign was in touch directly with the Guccifer 2.0 persona—which is to say with Russian military intelligence. And Donald Trump Jr. was directly in touch with WikiLeaks—from whom he obtained a password to a hacked database. There are reasons none of these incidents amount to crimes—good reasons, in my view, in most cases, viable judgment calls in others. But the picture it all paints of the president’s conduct is anything but exonerating.

Call it Keystone Kollusion.

Ouch.

Finally, Wittes points to a conclusion getting essentially no attention in the press:

The counterintelligence dimensions of the entire affair remain a mystery.

Because the Mueller investigation was born out of a counterintelligence investigation, there has been an enduring impression that it had both criminal and counterintelligence elements. I have assumed this myself at times. How these two very different missions integrated within the Mueller probe has been much discussed. The Mueller report answers this question, and the answer is actually striking—and from my point of view alarming: The Mueller investigation was a criminal probe. Full stop.

It turns out that Mueller simply put up a wall—correctly in my non-expert opinion—and handed anything related to the counterintelligence case over to the FBI for handling under their normal procedures. I say “correctly” because there’s no obvious reason that an independent investigator is needed for that aspect of the case and because intermingling the two would have tainted the criminal probe.

Wittes, who although not trained as a lawyer is nonetheless a legal scholar of the highest order, disagrees:

This leaves me worried. After the blood-letting at the bureau that saw the entire senior leadership replaced precisely as it was engaged with counterintelligence questions involving Trumpworld and Russia, who at the bureau now is going to push such questions? The incentive structure at the FBI cannot favor senior leadership carrying the ball on this. It also cannot favor individual agents allowing themselves to get assigned to matters that would put them in the president’s cross-hairs.

So I worry about a counterintelligence gap. Mueller, the person with the independence to take this matter on, construed his role narrowly as a prosecutor and set up a one-way street for counterintelligence information to go back to the FBI. And the FBI, the entity with the mandate, has every incentive to play it cautious.

It would be the deepest of ironies if the Mueller investigation showed evidence that the president had committed crimes and had committed impeachable offenses, and if he had painted a remarkable historical portrait of the relationship between Trumpworld and the Russian government, but if at the same time, the core counterintelligence concerns that gave rise to it and that have haunted the Trump presidency from the beginning went unaddressed.

That’s a fair point, indeed.

FILED UNDER: Crime, Donald Trump, Law and the Courts, Russia Investigation, U.S. Constitution, US Politics
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Daryl and his brother Darryl says:

    The president committed crimes. There is no way around it.

    Any one of us who did something similar would be in jail.
    Turns out his chants of “Lock her up” were just more of the same projection Republicans are always practicing. It should be “Lock him up.”

  2. Michael Reynolds says:

    That’s good of Wittes, the cautious analyst. Of course your immodest incautious analyst figured 90% of this out three years ago. And remember: the SDNY has a stack of criminal referrals, so we haven’t even gotten to the good stuff yet.

    Trump is frantically trying to obstruct the law and the public’s right to know, flinging lawsuits in all directions, all with a single goal: for God’s sake don’t let people find out just what a corrupt, venal pig Trump is. The racism, that’s a feature, as is the misogyny, but straight-up, fill-your-pockets, loot everything in sight corruption? Not so sure the base will love that. And it is coming.

    #TrumpCrimeFamily: it’s not just a hashtag.

  3. James Joyner says:

    @Michael Reynolds: In fairness to Wittes, he has been highly critical of Trump and his team’s conduct. His tone is much more cautious than yours or even mine but he’s been calling out misdeeds for a long time. He’s simply been unwilling to say that we have actual crimes absent rock solid evidence.

    This May 2017 roundup with two Lawfare colleagues, “Seven Theories of the Case: What Do We Really Know About L’Affaire Russe and What Could it All Mean?” is quite damning. But it’s nonetheless cautious.

  4. Scott F. says:

    Oh, that a highly credible and cautious national security law analyst might be able to influence the great deliberative body that is the US Senate. But, Judiciary Committee member Lindsey Graham went on record today to state that “I don’t care” about the 10 instances of possible obstruction documented in the Mueller report. He said this at the same time that he proudly claimed that he had fought for Mueller’s analysis to be the last word.

    The problem isn’t that Trump is a criminal. It’s that one of the two major parties in this country, due either to pure power politics or fear of their base, is willing to defend his criminality despite all evidence. This means no data, no facts, no compelling analysis will move GOP leaders from what is now their religiously held beliefs.

    The nation is truly fracked until these leaders pay a price at the ballot box. And I don’t know if that’s possible in my remaining lifetime. (And I’m not that old.)

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  5. reid says:

    @Scott F.: It’s truly mind-boggling to me that nearly all Republicans have tossed their principles in the trash for this blatantly trashy administration. I mean, it’s not in a way, of course, but that the rot is deep in the GOP is mildly surprising.

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  6. gVOR08 says:

    I keep remembering the scene in Lincoln in which Daniel Day Lewis draws himself up to what seems like eight feet tall, “I am the President of the United States – CLOTHED in IMMENSE power!”, not in a context of the war or diplomacy but over politics, “You will procure me those votes.” Since then we have done nothing but add to the president’s power, creating the Imperial Presidency.

    I like Wittes’, “Call it Keystone Kollusion.” As I commented in a different context yesterday Trump is more of a clown that a criminal mastermind. But a clown with IMMENSE power. He may be too dumb to establish autarchy, but he’s totally unscrupulous and backed by the Republican Establishment, who are equally unscrupulous and, some of them, not dumb.

    We can’t count on Trump’s incompetence to save us. We certainly can’t count on the Republican Senate. The “deep state” works for the czar. And I wouldn’t count on this plague of GOP judicial appointees to uphold the law. Hold your nose, James, and vote Blue, no matter who.

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  7. mike shupp says:

    Mueller’s report did not say clearly and explicitly that Donald Trump has committed crimes and should be prosecuted. Republicans see that as complete exoneration, and 500 years from now that will be the judgment of historians.

    Hoorah for the American legal profession.

  8. Scott F. says:

    @reid: I’m hopeful enough, or perhaps naive enough, to believe there is some measure of basic humanity in all people, even politicians. This basic humanity would include what was taught to me by my parents as the quaint concept of a conscience.

    I try to find some comfort in this idea that the Grahams, McConnells, Barrs, and Burrs of the world catch themselves in the mirror on some occasions and wonder how the hell they came to who they are. Then, I hope for those pangs of conscience to haunt them to their graves.

  9. Scott F. says:

    It’s reasonable to expect that the judgement of historians some 500 years in the future will more closely resemble the judgement today of credible and cautious national security law analysts as opposed to the random word vomiting of schlubs like mike shupp.

  10. OzarkHillbilly says:

    @Scott F.:

    catch themselves in the mirror on some occasions and wonder how the hell they came to who they are. Then, I hope for those pangs of conscience to haunt them to their graves.

    For the true believer, the ends justify the means. Always. But hey, a man can dream.

  11. reid says:

    @Scott F.: I am not holding my breath for any of them. Certainly Trump will never see anything decent in the mirror. The others are so deep into this and have been for so long that I think they’re no longer capable of it. They live in a rose-colored bubble.