Magazine | December 31, 2017, Issue

Robert Mueller’s Missing Case

(Roman Genn)
So far, the special counsel has found nothing to incriminate the president

Does Robert Mueller have a case against President Donald Trump? The answer increasingly appears to be no.

It has been seven months since Mueller’s appointment as special counsel, and well over a year since the FBI began investigating possible Trump “collusion” in Russia’s 2016 campaign interference. A few important things have become clear. The most apparent is that Mueller has no prosecutable collusion case.

This is clear from the three sets of charges Mueller has filed so far. Notwithstanding the frisson for Never Trumpers who’ve morphed into Impeach Trumpers, more-objective observers deduced from the charges that Mueller is probably about where James Comey was a year ago. Between Trump’s November 2016 election and his firing of the former FBI director in May (the explosive event that triggered Mueller’s appointment), Comey repeatedly assured the new president that he was not a criminal suspect.

This was not for lack of trying to make him one. In his March 2017 congressional testimony, Comey announced that the FBI was investigating Russia’s meddling in the election. This was a striking departure from Justice Department protocols against publicly acknowledging investigations. Yet it merely confirmed what was obvious from the U.S. intelligence agencies’ January report on Russia’s “cyberespionage” operation during the campaign. Comey’s purpose in making this extraordinary disclosure was not to finger Russia but to rattle the Trump camp, as he did in his next breath: the explosive disclosure that the FBI’s Russia probe included scrutiny of any contacts between Trump associates and the Kremlin, as well as any possible “coordination” between the Trump campaign and Russia’s election interference.

It was an astonishing revelation that Comey had to know would signal to the media, and thus to the public, that the nation’s premier law-enforcement agency regarded the sitting president as a suspect. Yet, in private meetings, Comey was telling both congressional leadership and Trump himself that the president was not a suspect. I believe it was this Janus-like performance that ultimately led an irate Trump to dismiss the director. In retrospect, though, it’s clear that Comey was ratcheting up pressure on Trump subordinates, reasoning that there must have been fire under all the Russia smoke the bureau was seeing.

Comey knew that, around the time the Kremlin appeared to have been hacking email systems of the Democratic National Committee (DNC) and Clinton-campaign chairman John Podesta, there were contacts between intriguing Russians and such Trump-campaign hands as Paul Manafort (the campaign chairman for a time), Michael Flynn (a top campaign aide and later, fleetingly, Trump’s national-security adviser), Carter Page (a tangential campaign adviser), and George Papadopoulos (a young campaign adviser of even less stature than Page). Still, American intelligence agencies had found no evidence that these contacts had anything to do with Kremlin espionage. Indeed, their January report noted en passant that Russia had sought to compromise both Democratic and Republican communications — they’d just struck paydirt with the former.

In speaking with Trump, Comey explained his reluctance to say publicly what he was saying privately — viz., that Trump was not a suspect — by claiming that it would be worse for Trump if the FBI cleared the president only to have new troubling information arise later. That, according to Comey, would call for a damaging public announcement that the case was being reopened. This, of course, is what happened in the Hillary Clinton–emails investigation: The director’s initial exoneration press conference in July 2016 was followed by the uncovering of new emails, leading to Comey’s public reopening (and re-closing) of the case on the eve of the election.

It was a specious rationalization. Comey’s problem in both the Clinton and the Trump situations was of his own making: Had he not made inappropriate public statements — outlining damning evidence against Clinton when he was not going to charge her, raising public suspicions about Trump when he did not regard Trump as a suspect — no later clarifications would or could have been necessary. For present purposes, however, the point is that, no matter what assurances he had given Trump, Comey plainly believed a case connecting the president to Russia’s perfidy remained well within the realm of possibility. It wasn’t there yet, but it might emerge if investigators kept digging, if the bureau kept the heat on the likely accomplices.

Well, seven months after Comey’s departure, they’re still digging, still keeping the heat on. And Donald Trump is still not a suspect. In fact, a “collusion” case seems farther away than ever. Not just against Trump; against anyone.

As far as we can tell, Mueller’s probe has two fundamental flaws, a theory problem and a proof problem, and both are fatal.

First, “collusion,” which is just concerted activity of some kind, is not a crime. Prosecutors have to prove that contacts rose to the level of conspiracy — an agreement among two or more people to violate some federal criminal law. Whatever the various contacts between Trump associates and Russians may have amounted to, investigators have not come close to showing that they implicate the Trump campaign in the only crime we know of — Russian espionage, the hacking of the email system of the DNC.

Consider the three sets of charges Mueller has filed. The indictment against Manafort and his partner Richard Gates has nothing to do with the 2016 campaign and only indirectly involves Russia. (Manafort worked for many years as a consultant for a Kremlin-connected political party in Ukraine and is alleged to have failed to register as a foreign agent and to have laundered millions of dollars in fees.) Mueller is patently squeezing Manafort for cooperation, hoping to uncover any evidence that the Trump campaign had either foreknowledge of Kremlin efforts to undermine the Clinton campaign or some other corrupt arrangement with Putin’s regime — such as a quid pro quo deal involving some form of Russian campaign assistance in exchange for the lifting of sanctions against Russia if Trump were elected. (The United States and other nations imposed sanctions against Russia over Putin’s annexation of Crimea and other anti-Ukraine aggression.)

Yet Mueller’s other two prosecutions, guilty pleas from Papadopoulos and Flynn, underscore the emptiness of the collusion narrative. Both men are cooperating with Mueller, who filed detailed factual statements in connection with each plea. Both, moreover, colluded with Russia: Papadopoulos in sundry meetings with allegedly Kremlin-connected contacts in an unconsummated effort to bring Trump and Putin together, or at least to arrange meetings between their respective subordinates; Flynn in discussions with Sergey Kislyak, Russia’s ambassador to the U.S., about a United Nations resolution condemning Israeli settlement-building and about sanctions President Obama ordered in response to Russia’s election-meddling.

Nevertheless, the pleas Mueller took were not to offenses somehow related to collusion with Russia; each man pled guilty to the process crime of making false statements in FBI interviews. If the cooperators had given Mueller testimony about an espionage conspiracy, he’d have had them plead guilty to that — a prosecutor does not build a major case by establishing merely that his witnesses are liars. Plus, Papadopoulos’s fact statement claimed that he was told, implausibly, that Putin’s regime had thousands of Clinton’s own emails, which it was considering providing to the Trump campaign. Put aside that Papadopoulos never saw any such emails and there is no known evidence that Russia had them (the hacked emails were from the DNC and Podesta, not Clinton herself). If Russia had to tell a Trump-campaign adviser it had obtained such emails, that means the Trump campaign had no involvement in Russia’s acquisition of them.

Even more fundamental than this lack of a coherent legal theory that could inculpate Trump in Russia’s espionage is Mueller’s proof problem regarding the espionage itself. The intelligence community’s finding that Russia interfered in the election, primarily by hacking, is merely a probability assessment, not courtroom proof. As the intelligence agencies’ own report concedes, the announcement of a finding does not mean the agencies are in a position to establish the finding as a matter of fact. The agencies say they cannot make their evidence public for fear of compromising their methods and sources of intelligence.

Mueller’s problem does not end with the inaccessibility of key witnesses. The Obama Justice Department indefensibly failed to force the DNC to surrender its server system for FBI forensic examination. Astonishingly, the government’s conclusion that Russia is the culprit — the finding that has roiled the nation for a year — hinges on an examination by CrowdStrike, a private contractor of the DNC. That would be the same DNC that refused FBI requests to surrender its server and has a powerful motive to portray Russia, rather than Clinton’s inept campaign, as the reason Clinton lost.

CrowdStrike is a reputable firm, so it is perhaps understandable that the intelligence agencies would trust its work in their probability analysis. They are not burdened, as Mueller is, by the obligation to prove essential facts beyond a reasonable doubt. If Mueller cannot prove Russia’s espionage in court, it is inconceivable that he could prove that the Trump campaign conspired in Russia’s espionage.

When it comes to Trump personally, then, Mueller seems reduced to establishing that he obstructed an FBI investigation. But that, too, is a dead end. To begin with, Trump has always had the power, as president, to shut down the Russia investigation, but he has never done so — and he even told Comey it would be helpful to know if any of his “satellites” had done something wrong. While it was unsavory of Trump to lean on Comey to drop the Flynn investigation, Trump has the constitutional authority to exercise prosecutorial discretion, and he did not actually order Comey to stop the probe — which continued and led, eventually, to Flynn’s guilty plea. And Trump had undeniable authority to fire Comey; as president, he did not need a reason to terminate a subordinate serving at his pleasure, and, again, the investigation has continued despite Comey’s dismissal.

To be sure, if Democrats flip the House in 2018, articles of impeachment could be filed against Trump regardless of what Mueller does. Impeachment is a political remedy, not a legal one, and Democrats could be rabid enough to act on sheer political will. For now, though, it appears that Mueller has no prospect of proving crimes, let alone high crimes and misdemeanors.

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