MAY 3, 2019
ON APRIL 18, 2019, a redacted version of the long-awaited Mueller Report was released to the public. It is one of the most important documents in the history of the American presidency. It is breathtaking in its detail, spread over 448 pages with 2,381 footnotes. It is also highly readable for layperson and lawyer alike. Indeed, portions read like a vivid political thriller. (When Trump learns that Special Counsel Robert Mueller has been appointed, citing an eyewitness account, the report describes how “the President slumped back in his chair and said, ‘Oh my God. This is terrible. This is the end of my Presidency. I’m fucked.’”).
The report includes the most concise explanation available to the public of how the Russians interfered in the 2016 election, and it documents numerous contacts between the Russians and Trump and his associates. It establishes that the “Russian government interfered in the 2016 presidential election in a sweeping and systematic fashion.” It also presents a 128-page summary of the evidence supporting numerous accusations that Trump personally obstructed justice. The report has energized calls for Trump’s impeachment. It deserves to be read by everyone who cares about the United States and the future of our democratic institutions.
Several instant versions of the report were rushed into print. Of course, a downloadable copy is available online for free. But two publications include separate analyses and supplemental material which may help readers figure out the meaning and implications of the report.
On April 23, Skyhorse Publishing published The Mueller Report, with an introduction written by Alan Dershowitz. It comes with excerpts from the Special Counsel regulations; the order appointing Mueller; Attorney General William Barr’s March 24 letter giving his summary of the principal conclusions of the report; Barr’s reasons for the redactions; and the entire redacted report and appendices. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School, the author of many books on legal subjects, and a frequent commentator on broadcast and cable news programs.
The next day, on April 24, Scribner published The Mueller Report with an introduction by Washington Post reporters Rosalind S. Helderman and Matt Zapotosky, entitled “A President, a Prosecutor, and the Protection of American Democracy.” It comes with short biographies of 79 people involved in the investigation; a timeline of the investigation; a facsimile of the entire report showing all of the redactions and appendices; a biographical essay by Washington Post reporters Marc Fisher and Sari Horowitz entitled “Mueller and Trump: Born to Wealth, Raised to Lead, Then Sharply Different Choices”; copies of the indictments and statements of the offense (in connection with guilty pleas) regarding George Papadopoulos, Michael T. Flynn, the Internet Research Agency and 15 other Russian entities and individuals, Viktor Borisovich Netyksho and 11 other Russian individuals, Paul J. Manafort, Michael Cohen, and Roger Jason Stone Jr.; the transcript of Cohen’s sentencing hearing on December 12, 2018; and Barr’s March 24 letter to the Senate and House Judiciary Committees. Helderman is an investigative reporter for the national political staff of the Post, where she has worked there since 2001. She is the winner of two Polk Awards and part of the Post team awarded a Pulitzer Prize in 2018 for coverage of Trump and Russia. Zapotosky has been at the Post since 2008 covering the Justice Department, FBI, and the Special Counsel investigation since its inception, for which he shared a Polk Award.
In its version, Scribner reproduces the actual pages of the report. Skyhorse chose to reset the report with new pagination, placing all the footnotes at the end. Since the Scribner edition retains the informative footnotes at the bottom of each page, it is easier to read. Also, the Scribner edition reproduces page after page of the actual black redactions, while Skyhorse merely indicates in a short-bracketed phrase how many lines were redacted. Seeing approximately one-third of the pages with at least one redaction and 12 pages entirely blacked out visually conveys the estimated eight to 10 percent of the report which Barr chose to redact and which House Democrats have threatened to challenge in court.
Unfortunately, although worth reading, the commentaries in both publications are rather short and superficial, and large portions appear to have been written prior to the release of the report. To their credit, the Washington Post reporters provide some historical context and include an excellent general overview of Russian interference and the involvement of Trump and his associates, but not enough discussion of the report itself.
The Warren Commission Report on the Assassination of President Kennedy (1964) and the Report of the 9/11 Commission (2004) were rushed into print because those reports were not otherwise readily available to the vast majority of the public. But today, everyone with a computer has free and immediate access to the entire Mueller Report and is able to read and print whatever sections interest them. The need for “instant” print publication of reports like this no longer exists. But the need for in-depth analysis remains. It would have been a greater public service had the commentators been given more time to dig deeper into the report and produce more comprehensive analyses. Perhaps others will undertake this important task. This review is a modest effort in that direction.
Mueller employed 19 lawyers and a team of intelligence analysts, forensic accountants, and other professional staff; issued more than 2,800 subpoenas; executed nearly 500 search warrants; obtained more than 230 orders for communications records; issued almost 50 orders authorizing use of pen registers; and interviewed approximately 500 witnesses.
The report’s top-line conclusions have been widely reported, but much of Mueller’s reasoning and analysis have not. In this vacuum, Trump and his supporters have been acting as if it’s “game over, we won.” In fact, the Mueller investigation is only one part of an unprecedented number of pending and potential judicial and congressional investigations scrutinizing Trump, his presidency, and his financial affairs, any of which could still have serious consequences during and after his term in office, and all of which are aided by Mueller’s scrupulous investigation.
It is very important to understand that Mueller conducted a criminal investigation. The report repeatedly points out in both Volume I, dealing with the relationship of the Trump campaign to Russian interference, and Volume II, dealing with Trump’s potential obstruction of justice, that the responsibility of the Special Counsel was to determine whether Trump or anyone associated with him engaged in criminal conduct with the requisite criminal intent sufficient to prove to a jury beyond a reasonable doubt that they violated specific federal criminal statutes. That is a very high bar — and should be — and it is apparent that, contrary to Trump’s incessant, false, and outrageous accusation of a “witch hunt,” Mueller and his team of seasoned prosecutors took their responsibility very seriously in deciding whom to indict and whom not to indict. But the fact Trump avoided a criminal indictment does not mean the investigation of his presidency is over. Far from it.
In Volume I, Mueller painstakingly addresses the crucial question of whether “members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.” The key legal terms are “conspiracy” and “coordination,” not “collusion.” The report makes clear that “collusion is not a specific offense or theory of liability found in the United States Code, nor is it a term of art in federal criminal law.” Under federal law, conspiracy and coordination require admissible evidence that two parties knowingly and intentionally made a corrupt agreement to pursue an illegal object and took one or more steps to achieve that purpose. When it came to Russian interference, Mueller found that prosecutors could not prove conspiracy/coordination beyond a reasonable doubt. Apparently, Russian spies are not in the habit of leaving behind evidence of their agreements with witting or unwitting helpers.
Tellingly, the report makes clear that a “statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.” The investigation also “established that several individuals associated with the Trump campaign lied [to prosecutors] and to Congress, about their interactions with Russian-affiliated individuals and related matters” and that those “lies materially impaired the investigation of Russian election interference.”
Despite those obstacles, Volume I establishes that the “Russian government interfered in the 2016 presidential election in a sweeping and systematic fashion.” It documents more than 100 in-person meetings, phone calls, text messages, emails, and private messages between more than two dozen Russian nationals, WikiLeaks, and intermediaries on the one side, and Donald J. Trump and at least 18 election campaign officials and advisors, on the other side, including Donald Trump Jr., Ivanka Trump, Jared Kushner, Paul Manafort, Michael D. Cohen, Jeff Sessions, Michael T. Flynn, Carter Page, and Roger J. Stone Jr. Despite this, Trump told the American people on the eve of the election that he had “nothing to do with Russia.” The report also confirms that “the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from the information stolen and released through Russian efforts.”
But Mueller’s conclusion that Trump is not criminally culpable of the charge of conspiring with the Russians is not the end of the matter. Mueller amassed an enormous factual record of corruption and wrongdoing. Given many pending and potential federal prosecutions, not to mention separate state investigations in New York and elsewhere, Trump could still be criminally charged after leaving office.
The fact that (to date) Trump has not been indicted does not place him beyond constitutional accountability. The Constitution specifies that the president is obligated to “take Care that the Laws be faithfully executed.” Trump swore to “preserve, protect and defend the Constitution of the United States.” The president is not free to do whatever he wants so long as he doesn’t commit a crime. To put it another way, Trump should be judged and held accountable for his conduct, whether or not it constitutes a crime.
Viewed outside the strictures of criminal law, the report provides ample evidence that on the basis of his documented involvement with the Russians, Trump is guilty of “high crimes and misdemeanors.” In short, as far as holding Trump accountable is concerned, Volume I is not a closed book. Once we understand the important difference between criminal proceedings and impeachment (which does not require the commission of a crime), Volume I is as much a roadmap to impeachment as is Volume II, regarding obstruction of justice.
Turning then to Volume II, the Mueller Report presents a far more complex situation, which can best be understood by looking at the very first consideration which guided the obstruction-of-justice investigation:
First, a traditional prosecution or declination decision entails a binary determination to initiate or decline a prosecution, but we determined not to make a traditional prosecutorial judgment. The Office of Legal Counsel (OLC) has issued an opinion finding that “the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions” in violation of “the constitutional separation of powers.”
Consequently, the Special Counsel “accepted OLC’s legal conclusion for purposes of exercising prosecutorial jurisdiction.” This consideration — that a sitting president cannot be indicted for federal crimes — pervades everything that follows in Volume II.
The second consideration Mueller stated is that while a sitting president may not be prosecuted, a criminal investigation during a president’s term is permissible because, according to the OLC, “[r]ecognizing an immunity from prosecution for a sitting President would not preclude such prosecution once the President’s term is over or he is otherwise removed from office by resignation or impeachment.” In a highly revealing statement that has drawn scant attention, the report explains that given these considerations, “we conducted a thorough factual investigation in order to preserve the evidence when memories are fresh and documentary materials were available.” Thus, in the same breath, Mueller specifically refers to “impeachment” and his intention to “preserve the evidence.”
Third, Mueller explains that he decided “not to apply an approach that could potentially result in a judgment that the President committed crimes,” because “[f]airness concerns counseled against potentially reaching that judgment when no charges can be brought.” This would preclude a speedy and public trial and an “adversarial opportunity for public name-clearing before an impartial adjudicator.” This consideration showed admirable ethical fairness toward Trump, who should be ashamed of himself for his baseless attacks on Mueller before and after the report was issued.
The fourth preliminary consideration produced the most quoted sentences in the entire report:
[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.
These four overriding considerations should remove any mystery regarding why Mueller did what he did in Volume II. If he could not prosecute, try, and convict or acquit Trump for obstruction of justice, he was not going to charge him in the first place. Given that Mueller’s reputation, ethics, and integrity are above reproach, it is entirely credible that Mueller was motived by the “fairness concerns” he describes. But that very same integrity would not allow him to leave it there. He expressly notes that a president may be impeached and/or charged after leaving office. Thus, he conducted a thorough investigation “in order to preserve the evidence when memories are fresh and documentary materials were available.” Nowhere does Mueller indicate he is leaving it to Attorney General William Barr to decide whether or not to indict Trump for obstruction of justice. Mueller had every reason to believe Barr would likewise abide by the OLC policy and the other considerations outlined at the outset of Volume II. He assumed that Barr would abide by the same ethical standards as he did.
There is now evidence that Mueller was frustrated by Barr’s mischaracterization of the report. On April 30, The New York Times reported that in late March Mueller wrote Barr a letter “objecting to his early description of the Russia investigation’s conclusions that appeared to clear President Trump on possible obstruction of justice.” Contrary to Barr’s March 24 letter to Congress, the report “painted a far more damning picture of the president and showed that Mr. Mueller believed that significant evidence existed that Mr. Trump obstructed justice,” according to the Times. In Mueller’s March 27 letter, he objected that Barr’s letter “did not fully capture the context, nature, and substance of this Office’s work and conclusions.”
Volume II proceeds to document in detail, based on extensive sworn testimony from firsthand witnesses and contemporary documentary evidence, a shocking pattern of presidential abuse of power. These pages wreak of corruption and villainy. They portray a president unbound by the fundamental standards of morality which ordinarily constrain decent, law-abiding people, let alone one who has accepted the mantle of president of the United States, and has expressly sworn under oath to take care the laws are faithfully executed and to preserve, defend, and protect the Constitution.
In particular, the report described at least 10 separate occasions on which Trump personally attempted to interfere with and obstruct the investigation and cover up activities he may have believed were politically and legally damaging or harmful to his election, including demanding personal loyalty from government officials; asking that criminal charges against Michael Flynn be dropped; firing the director of the FBI during the pendency of his investigation into the Trump campaign; misrepresenting to the American people why he fired the FBI director; asking intelligence officials to clear him of any wrongdoing; trying to limit the scope of the investigation into Russia and his campaign; asking Attorney General Sessions to “unrecuse” himself and investigate Hillary Clinton; threatening to fire Sessions; dictating a misleading statement about a key meeting at Trump Tower between Russians and members of his campaign; ordering his legal counsel to fire Mueller and then demanding his counsel fabricate a record denying the original order; telling Manafort, Flynn, and Cohen to “stay strong” and promising — through his lawyers — they would be “taken care of” unless they “went rogue”; and threatening Cohen by suggesting his father-in-law might be at risk.
The investigation also “established that several individuals associated with the Trump campaign lied [to prosecutors] and to Congress about their interactions with Russian-affiliated individuals and related matters” and that those “lies materially impaired the investigation of Russian election interference.”
By dividing his report into two distinct parts, Mueller overlooked the close evidentiary relationship between the two. He did not address the question of whether the evidence of obstruction of justice — lying, covering up, intimidating witnesses, seeking to end the investigation, et cetera — which he clearly marshaled in Volume II was directly relevant to determining whether Trump should be charged with conspiring with the Russians to help win his election in 2016 discussed in Volume I. There is a venerable doctrine in criminal law called “consciousness of guilt,” proof of which constitutes circumstantial evidence admissible at a criminal trial to support a finding of guilt. Wigmore’s esteemed Treatise on Evidence notes that “a criminal act leaves usually on the mind a deep trace, in the shape of a consciousness of guilt, and from this consciousness of guilt we may argue to the doing of the deed by the bearer of the trace.”
The Supreme Court has long upheld that doctrine, as follows:
If [a man] does an act which he is conscious is wrong, his conduct will be along a certain line. He will pursue a certain course not in harmony with the conduct of a man who is conscious that he has done an act which is innocent, right, and proper. The truth is — and it is an old scriptural adage that — “the wicked flee when no man pursueth, but the righteous are as bold as a lion.” Men who are conscious of right have nothing to fear. (Alberty v. U.S. )
Some of the most common types of consciousness of guilt are fleeing from the crime scene, making false statements and telling lies, concealing or destroying evidence, and intimidating witnesses. For example, currently in California, judges routinely read judicially approved jury instructions which explain that if the defendant “made a false or misleading statement before this trial relating to the charged crime, knowing the statement was false or intending to mislead,” or “tried to hide evidence or discourage someone from testifying against him,” that “conduct may show [he] was aware of [his] guilt of the crime and you may consider it in determining [his] guilt.” Of course, most accused criminals are not also the head of the Executive Branch of the United States government with the ostensible power to shut down an investigation into their own conduct. Under this well-established legal precedent, Mueller should have considered the substantial evidence of Trump’s consciousness of his guilt in both aspects of the investigation. Combined with other evidence, this could well have tipped the balance against Trump.
Despite these oversights, Mueller has nevertheless done a great service to the nation by amassing extensive evidence of official wrongdoing at the highest level of the American government and marshaling it into a cogent, logical, and compelling narrative. The Mueller Report will continue to play a very important role in holding Trump accountable as criminal, civil, and congressional investigations continue to unfold.
Examining the commentaries written by Washington Post reporters Helderman and Zapotosky and by Dershowitz provides a revealing contrast between journalists sketching a path for readers to follow in reading the report, on the one hand, and an advocate pleading his case on behalf of the primary target of the investigation, on the other.
Helderman and Zapotosky provide an 18-page introduction of the history of the investigation and a brief summary of the report. “The special counsel investigation that threatened Donald Trump’s presidency,” they begin, “was born of the commander-in-chief’s rage.” Trump “seethed” over Comey’s refusal to tell the world that the president was not being personally scrutinized. On May 9, 2017, “Trump snapped” and fired Comey. Eighteen days later, Rod Rosenstein, the number-two official at the Justice Department, appointed Mueller as Special Counsel, who launched his 22-month investigation.
“Mueller’s report, despite redactions,” Helderman and Zapotosky write,
offered a stunning account of how Russia worked to help the Trump campaign and how Trump’s associates were willing to accept Russian assistance, and it presented an explosive and detailed narrative of how Trump sought to shut down the investigation as he worried about its impact.
The Post reporters describe how the work of Mueller’s team “was at times stymied by the lies witnesses told and the communications that they deleted or failed to maintain.” They also point out that according to the report, Trump resisted a sit-down interview, and provided “inadequate” written responses that stated more than thirty times he “does not ‘recall’ or ‘remember’ or have an ‘independent recollection’” of information investigators asked about.
Helderman and Zapotosky confirm that in federal court Mueller’s team “racked up an extraordinary record,” charging 34 people, including 26 Russian nationals and securing guilty pleas from seven people, including Flynn and Manafort.
As Helderman and Zapotosky see it, the “release of Mueller’s report thrust the case into the political arena, arming Democratic lawmakers with an array of new information to support their attacks on Trump and open possible new areas of inquiry for their own investigations.” The reporters end by observing that “Mueller’s investigation may have concluded, but Washington’s political wars were as hot as ever.”
In contrast to Helderman and Zapotosky, who approach their tasks as independent journalists, Dershowitz appears very defensive about his impartiality. He discloses that he voted for Hillary Clinton in 2016 and for Democrats in the 2018 midterms, and that as a civil libertarian “who cares deeply about the fair application of the rule of law to all,” he promises to “apply neutral, nonpartisan principles” to his analysis. As if he has inside information, he states as a fact that “a written formal response by the Trump legal team” is forthcoming and he cautions that “fair minded citizens should withhold final judgment until they have read both the report and the response.”
Yet Dershowitz, contrary to his own advice, has already formed a “final judgment” on Trump. His introduction neglects to mention that in July 2018, he published a full-length book entitled The Case Against Impeaching Trump and made scores of television appearances defending Trump. In his 2018 book, he argued that colluding with the Russians during the 2016 election was not a crime. Therefore, even though he concedes that collusion with Russia “would be a breach of the public trust and fulfill Alexander Hamilton’s criteria for impeachment,” he believes (contrary to the weight of historical evidence) the framers of the Constitution did not provide the remedy of impeachment unless the president “committed a designated crime” (Hamilton be damned) and ergo Trump hasn’t committed an impeachable offense. For someone who claims to be applying “neutral, nonpartisan principles,” Dershowitz should have disclosed that he made up his mind long ago.
It’s remarkable that in a brief 12-page introduction, Dershowitz spends barely four pages analyzing the report itself. The rest of the time he further demonstrates his partisan bias by relitigating Comey’s handling of the Hillary Clinton email investigation and arguing that the Mueller investigation should never have been started in the first place. Dershowitz has been arguing for two years, and he reiterates here again that instead of the appointment of a Special Counsel to investigate and prosecute any crimes committed in connection with Russia’s interference in the 2016 election, the “proper institution” should have been “an expert, nonpartisan, independent commission, such as the one established following the terrorist attacks on 9/11,” which could have held hearings and issued a report. Of course, such a commission would have had no power to initiate any criminal prosecutions.
But now that the Special Counsel has completed his 22-month investigation and has issued his extensive report, it seems hollow and irrelevant for Dershowitz to continue to argue over whether or not the Special Counsel should have been appointed in the first place. But thank goodness no one took Dershowitz’s advice seriously. As noted above, in addition to documenting in detail how the “Russian government interfered in the 2016 presidential election in a sweeping and systematic fashion” and in addition to establishing that Trump and at least 18 election campaign officials and advisors had more than 100 contacts with more than two dozen Russian nationals, WikiLeaks, and intermediaries, Mueller filed 199 criminal charges and obtained indictments, convictions, and guilty pleas involving 34 individuals and three entities, including five former Trump associates; he has transferred a number of pending prosecutions to other US Attorneys; he has referred another 14 potential criminal cases to other US Attorneys; and he has documented at least 10 acts of potential obstruction of justice committed by Trump, which provide the House and Senate with a roadmap to pursue an impeachment inquiry. No wonder Dershowitz didn’t want Mueller appointed as Special Counsel and preferred a toothless “commission” instead.
It’s not until page nine of his 12-page introduction that Dershowitz finally gets around to analyzing Volume II regarding obstruction of justice. His entire analysis boils down to one argument: so long as a president is acting pursuant to his authority under Article II of the Constitution, he cannot be guilty of obstruction of justice. According to Dershowitz, every crime requires both an actus reus (a criminal act) and a mens rea (an unlawful — and in the case of obstruction, a corrupt — intent). Since Trump, as head of the Executive Branch, the argument continues, had the authority to fire James Comey as FBI director, Trump cannot be guilty of obstruction of justice. As Dershowitz puts it, the “obstructive act cannot be an act by the president that is constitutionally authorized.”
Mueller addressed precisely this issue and came to the exact opposite conclusion. Dershowitz complains that the report is “one-sided,” but he overlooks Mueller’s comprehensive 26-page section entitled “Legal Defenses to the Application of Obstruction-of-Justice Statutes to the President,” in which Mueller carefully addresses the arguments made in four different letters submitted by Trump’s personal legal counsel. This is in addition to Mueller’s five-page analysis entitled “Legal Framework of Obstruction of Justice.”
Dershowitz claims that Mueller “interpreted constitutional law incorrectly,” and declares that the federal court decisions cited by Mueller were “all wrongly decided in my view.” But he doesn’t cite a single court decision, treatise, or law review to support his position. A closer look exposes Dershowitz’s misleading analysis. Mueller cites two federal appellate court decisions for the proposition that an “improper motive can render an actor’s conduct criminal even when the conduct would otherwise be lawful and within the actor’s authority.” One of those cases, United States v. Cueto, 151 F.3d 620, 631 (7th Cir. 1998), is actually a case in which Dershowitz himself represented the losing side — so he should be very familiar with it. There, the court used a standard jury instruction, approved for all cases in that circuit, which explained to the jury that any “act, by any party, whether lawful or unlawful on its face, may violate Section 1503 [obstruction of justice], if performed with a corrupt motive.” The decision adds that “[i]ntent may make any otherwise innocent act criminal, if it is a step in the plot.” Although Dershowitz complains that Mueller doesn’t cite any Supreme Court decisions, that last quote cited in Cueto comes directly from the Supreme Court decision in Badders v. United States, 240 U.S. 391, 394 (1916).
In the 26-page section of the report addressing the arguments presented by Trump’s personal legal counsel, Mueller uses a separation-of-powers analysis and cites over 20 Supreme Court decisions (all of which Dershowitz ignores). Mueller concludes, “Congress can validly regulate the President’s exercise of official duties to prohibit actions motivated by a corrupt intent to obstruct justice.” In others words, while Trump had the authority to fire Comey as FBI director for any number of valid reasons, if he did so with the corrupt intent of interfering with Comey’s investigation of Trump, his family, and his associates, the obstruction of justice statute could be applied to Trump. The “President has no more right than other citizens to impede official proceedings by corruptly influencing witness testimony,” the report confirms.
Mueller points out that the very constitutional authority which Trump’s lawyers claim gives Trump immunity from prosecution for obstruction of justice imposes a duty to “take Care that the Laws be faithfully executed.” Faithful execution, as Mueller succinctly explains, “connotes the use of power in the interest of the public, not in the office holder’s personal interest.” Mueller concludes that “contrary to the position taken by the President’s counsel,” in light of the Supreme Court precedent governing separation-of-powers issues, “we had a valid basis for investigating the conduct at issue in this report.” The “protection of the criminal justice system from corrupt acts by any person — including the President — accords with the fundamental principle of our government that ‘[n]o [person] in this country is so high that he is above the law.’”
Toward the end of Dershowitz’s introduction, as if he realizes that his position is verging on giving the president a “get-out-of-jail-free-card,” and with the ghost of Richard Nixon looming over all of this, he qualifies his categorical opinion by asking, “Does this mean that a president can never be charged with obstruction of justice?” His answer:
Of course not. President Nixon could properly have been charged with obstruction of justice because he went well beyond his constitutional authority by telling his subordinates to lie to the FBI, by destroying evidence, and by authorizing the payment of hush money to potential witnesses in a criminal case.
Really? Is Dershowitz oblivious of the connection between these acts to Trump? Since Dershowitz has so assiduously avoided discussing any of Trump’s other nine acts of potential obstruction of justice documented by Mueller, except the firing of Comey, he seems oblivious to just how many of those acts are substantially similar to what he concedes constitutes presidential obstruction of justice. And regarding paying “hush money,” Cohen pled guilty to campaign finance violations for paying Stormy Daniels $130,000 “in coordination with and at the direction of” Trump.
By applying Mueller’s detailed factual findings to Dershowitz’s own definition of what constitutes obstruction of justice, Dershowitz has sealed Trump’s fate.
In 1974, President Nixon was also facing impeachment on charges of official wrongdoing remarkably similar to what the evidence in the Mueller Report shows Trump has done. The House was in the control of the Democrats. The Senate was also in the control of the Democrats, but they did not have a two-thirds majority. Yet as the American people heard the testimony of key witnesses and saw the incriminating evidence for themselves, public opinion in favor of impeachment mounted. On the eve of the House voting to impeach, Republicans leaders told Nixon he was doomed because key Senate Republicans were prepared to provide the necessary votes to convict him and remove him from office. Nixon resigned.
Today, the question facing the nation is whether, in light of the Mueller Report, the Constitution, and our history, the House has the courage to once again hold hearings and marshal the evidence of impeachable offenses, regardless of the current head count in the Senate.
When it came time to write the Constitution in May 1787 and create the Office of the President, Virginia delegate Edmund Randolph feared “the fetus of monarchy” and North Carolina delegate Hugh Williamson warned against “an elective king.” Periodic elections were not enough. The people deserved the ultimate power to remove a president who was abusing the highest office in the land without waiting for the next election.
“Shall the man who has practiced corruption & by that means procured his appointment in the first instance,” thundered Virginia delegate George Mason, “be suffered to escape punishment, by repeating his guilt?” James Madison called it “indispensable that some provision should be made for defending the Community [against] the incapacity, negligence or perfidy of the chief Magistrate,” who “might pervert his administration into a scheme of peculation or oppression” or “might betray his trust to foreign powers.”
The Convention debated various formulations for articulating the grounds for impeachment, finally settling on “Treason, Bribery, or other high Crimes and Misdemeanors” (Article II, section 4). While there is no record of how the delegates defined these terms, there was universal understanding that impeachment and removal did not require proof that an actual crime — a violation of the penal code or criminal statute — had been committed. In Federalist No. 65, Alexander Hamilton explained that the “subjects” of impeachment involve “the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.” (Hamilton’s full caps.)
Having refused to sign the Constitution because it lacked a Bill of Rights, Mason was worried that the president could pardon “crimes which were advised by himself” before indictment and conviction. Mason presciently asked, “[M]ay he not stop inquiry and prevent detection?” Madison reassured him that “if the President be connected in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; [and] they can remove him if found guilty.” Of particular contemporary importance, Randolph linked impeachment to the Constitution’s Emoluments Clause, which prohibits federal officials, including the president, from receiving gifts and emoluments from foreign governments.
By 1788, the American people had ratified the Constitution in great part because they were satisfied that with various checks and balances in place, including the power of impeachment, the public was sufficiently protected from the excesses of “an elective king.” Since then, three presidents and 19 other federal officials have been involved in impeachment proceedings.
Nixon was charged with nine separate counts of covering up the Watergate burglary, and three counts for abusing his powers in connection with the Internal Revenue Service, the FBI, and the CIA. The comparisons to Trump are glaring, and the Nixon Articles of Impeachment provide a template as Congress considers its solemn constitutional responsibilities.
Article I charges that Nixon
in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has prevented, obstructed, and impeded the administration of justice.
Article I then describes the June 17, 1972, break-in of the Democratic National Committee in Washington, DC, “for the purpose of securing political intelligence.” Subsequently,
Richard M. Nixon, using the powers of his high office, engaged personally and through close subordinates and agents, in a course of conduct or plan designed to delay, impede, and obstruct the investigation of such illegal entry; to cover up, conceal, and protect those responsible; and to conceal the existence and scope of other unlawful covert activities.
One could literally substitute the name “Donald J. Trump” for “Richard M. Nixon” and “illegal Russian interference” for “illegal entry,” and all the statements would apply and would be supported by sworn testimony and documentary evidence.
What follows in Article I is a series of specific overt acts taken by Nixon, any one of which would have supported impeachment but taken together depict the same kind of systemic pattern of obstruction of justice established by the 10 specific overt acts in the Mueller Report. Almost all of the charges against Nixon are of an identical nature to the conduct in which Mueller found Trump had engaged. Nixon made “false or misleading statements to lawfully authorized investigative officers and employees of the United States”; he withheld “relevant and material evidence or information”; he counseled witnesses with respect “to the giving of false or misleading statements” or “false or misleading testimony”; he interfered or attempted to interfere with the conduct of investigations by the Department of Justice, the FBI, the special prosecution force, and Congressional Committees; and he made or caused to be made “false or misleading public statements for the purpose of deceiving the people of the United States into believing” that a thorough investigation of misconduct by personnel of the executive branch or his reelection committee would show they had no involvement in any misconduct.
In addition, Nixon approved, condoned, and acquiesced in “the surreptitious payment of substantial sums of money for the purpose of obtaining the silence or influencing the testimony of” witnesses or potential witnesses. This is comparable to the fact that in sentencing Trump’s former lawyer Michael Cohen on December 12, 2018, Judge William H. Pauley of the Southern District of New York stated on the record that in committing “two campaign finance crimes on the eve of the 2016 presidential election with the intent to influence the outcome of that election,” Cohen “made or facilitated payments to silence two women who threatened to go public with details of purported extramarital affairs,” and “Mr. Cohen admitted that he did so in coordination with and at the direction of Individual One,” who has been identified as Donald J. Trump. Under oath before a congressional committee on February 27, 2019, Cohen reiterated these facts and provided a copy of a $35,000 check signed by Trump himself partially reimbursing Cohen for the $130,000 “hush money” payment to Stormy Daniels.
Article I concludes that in “all of this, Richard M. Nixon has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States” and therefore Nixon “by such conduct, warrants impeachment and trial, and removal from office.”
Can any less be said of Donald J. Trump? If anything, his conduct posed — and continues to pose — an even greater threat to America, an even greater subversion of constitutional government, and an even greater prejudice to the cause of law and justice. The single Watergate break-in pales in comparison to the fact that the “Russian government interfered in the 2016 presidential election in a sweeping and systematic fashion.” Furthermore, it was never alleged that Nixon actually conspired in or coordinated with the Watergate burglars during the commission of the break-in, or that he encouraged, aided and abetted, and gave comfort to the perpetrators while that crime was underway, or that Nixon and his associates engaged in more than 100 in-person meetings, phone calls, text messages, emails, and private messages while this “sweeping and systematic” crime was taking place. Although it was certainly necessary for Congress to have pursued impeachment leading to Nixon’s resignation, the need to hold Trump accountable through impeachment is even more imperative.
Russian interference with the American electoral process in favor of the candidate who was eventually elected constitutes the most serious adversarial act of cyber-warfare by a foreign power that we know of in the history of the United States. Too many have lost sight of Trump’s grave and unforgivable abdication of his duty to forestall and disrupt Russia’s interference with an American election.
Elizabeth Holtzman has not lost sight of that abdication. In 1973, Holtzman became the youngest woman ever elected to Congress, where she served four terms. A graduate of Harvard Law School, she became a member of the House Judiciary Committee and voted in favor of the Articles of Impeachment against Richard Nixon. Last year, she wrote a book entitled The Case for Impeaching Trump, in which she explained the history of impeachment in the United States and carefully described the details of the Nixon impeachment. Applying that history and the lessons learned from her direct involvement in the Nixon impeachment, she lays out specific grounds for impeaching Trump and concludes that:
President Donald Trump threatens our democracy. He lies, attacks our constitution, assaults the press, and obstructs justice. He causes unfathomable damage. The Constitution has a remedy for presidents who commit “great and dangerous offenses”: impeachment.
A fair, lawful, bipartisan impeachment inquiry into President Trump means getting to the bottom of things. It means analyzing with a clear head and heart what President Trump has done and what the law requires.
Impeaching a president is a grave undertaking. The compassionate and diverse America I know demands we get ready to do it.
Holtzman outlines in considerable detail the facts supporting several potential Articles of Impeachment against Trump, including “Preventing, Obstructing, Impeding, and Abusing the Administration of Justice” (26 pages), “Bribery and Emoluments” (24 pages), and other possible impeachable acts, including colluding with the Russians (regardless of whether or not Trump was engaged in a criminal conspiracy), abusing his authority over immigration by separating children from their families, and campaign finance violations by concealing hush money payments from the American voters (20 pages).
But Holtzman’s first and most incisive ground for impeachment is entitled “Failure to Protect the Integrity of Our Federal Election Process.” Calling the Russian assault on our election in 2016 “a cyber Pearl Harbor,” Holtzman argues that Trump’s “outright refusal to defend and protect us against these attacks is a potentially impeachable failure ‘to preserve, protect and defend the Constitution of the United States.’” In 26 information-packed pages, she documents how Trump “disregarded his responsibilities as commander in chief to repel and prevent attacks on our country, including cyberattacks”; “impaired the basic constitutional right of Americans to fair and honest elections”; “systematically made false and misleading public statements for the purpose of deceiving the American people about the identity of the attackers and his knowledge of the attacks”; and “withheld relevant and material evidence, information, or assistance from the intelligence community, which was trying to block the Russian attacks in 2016.” Holtzman elaborates on each of these charges by explaining how during the campaign, the transition, and after his inauguration, Trump was repeatedly briefed on Russian interference; how he encouraged the attacks and hindered efforts to counter them; how Trump made 16 false and misleading statements to the American people regarding the attacks; and how he failed, with deliberate indifference, to provide safeguards against future Russian attacks.
Holtzman concludes that “President Trump’s refusal to act endangers the people’s right to free elections, a foundation of our democracy; is a ‘great and dangerous offense’; and subverts the Constitution. Impeachment is the remedy our Constitution provides for such misdeeds.”
Holtzman presented her case for impeachment last year based on the public record. She did not condition impeachment on Trump being convicted of any crime, since impeachment does not require the conviction of a crime. Consequently, the Mueller Report with respect to both Trump’s involvement with Russian interference and his obstruction of justice reinforces and strengthens the strong case Holtzman has already documented.
Holtzman is not alone in calling for impeachment. Prominent Harvard Law School constitutional law professor Laurence Tribe, Yoni Appelbaum (Senior Editor of The Atlantic), journalist Elizabeth Drew (who covered the Nixon impeachment), and others support the convening of impeachment hearings. Articles of Impeachment have already been introduced in the House with the support of Representatives Brad Sherman, Al Green, Steve Cohen, Luis Gutiérrez, Adriano Espaillat, Marcia Fudge, and John Yarmuth. A CNN poll in March 2019, before the release of the Muller Report, showed 36 percent in favor of impeachment, which is about the same as supported Nixon’s impeachment in the early stages of his case. After the report was released, a Washington Post/ABC News survey indicated that 58 percent believe that Trump lied and obstructed justice.
Yet some people, including some leaders in the Democratic Party, are counseling against any effort to initiate impeachment proceedings against Trump. They assume that even if a majority of the House of Representatives, which is controlled by the Democrats, votes to issue Articles of Impeachment, there is no chance Republicans in the Senate will supply the additional 20 votes, which combined with all of the Democrats, will furnish the necessary two-thirds to convict Trump and remove him from office. They fear voter backlash and that Trump will use impeachment to rally his troops. But his troops will support him come hell or high water, or as he boasted, even if he killed someone on Fifth Avenue.
What will all the rest of the voters think? As a nation, we can be very proud when we look back at how leaders of both parties did not shrink from their duty to pursue the impeachment of Nixon. In particular, we should recognize the courage of the Democrats in the House of Representatives who, in the face of the nay-sayers of their day, initiated impeachment hearings, gathered compelling evidence, and drafted forthright and convincing Articles of Impeachment knowing at the outset that they did not have sufficient votes if the Senate voted along party lines. The foresight and vision of the Democratic leadership was rewarded because they saw clearly what the Constitution required. They trusted the legal process. And they had confidence that once the American people saw for themselves what James Madison called “the incapacity, negligence or perfidy of the chief Magistrate,” who was willing to “pervert his administration into a scheme of peculation or oppression,” the vast majority would support the removal of a corrupt president.
They were right, and the same is true today. If members of the House — Democrats and those Republicans who take their oath seriously — educate the American people, through live testimony of witnesses under oath and documentary evidence, about the glaring proof of Trump’s “high crimes and misdemeanors,” the case will move to the Senate. There, every Senator will have to stand and be counted. If two-thirds place country and the Constitution above Trump, he will be removed from office. But even if the vote in the Senate falls short, then those who voted for Trump, whether they are up for reelection or not, will have to face the American people in 2020 and explain why they supported Trump. And as for Trump himself, the voters will get a second bite at the apple to remove him from office at the ballot box.
Does this mean the Democrats do nothing else but fight against Trump? Of course not. Every Democrat must walk and chew gum at the same time. While defending democracy from the scourge of Trump by removing him from office, Democrats need to address the problems facing our nation by supporting working families; affordable health care; full employment and a living wage; racial justice; criminal justice reform; appointment of judges who uphold civil liberties and civil rights; a more equitable tax system; protecting Social Security; affordable housing; protections for women, the disabled, and LGBTQ rights; public education from kindergarten to college; humane immigration and asylum policies; protections for the environment; gun safety; veterans rights; and a humanitarian foreign policy to end endless wars, protect human rights, and eliminate war profiteering.
But to do all this and ignore impeachment is simply unthinkable if we expect to continue to call ourselves a constitutional democracy. If political calculations with an eye on the next election immobilize Democrats and cow them into ignoring impeachment, especially now that the Mueller Report is staring us in the face, not only will Trump and his base be emboldened, carrying the message into 2020 that he did nothing wrong and therefore deserves to be reelected, but Congress will forever have set a very dangerous precedent that the power of impeachment bequeathed to us by the Founders is a dead letter and that future presidents can get away with anything.
Constrained as he was by the strictures of criminal law and OLC policy precluding the indictment of a sitting president, Robert Mueller did his job. Armed with this elaborate record of Trump’s abuse of power and official wrongdoing, now it is time for the American people and the members of Congress to do theirs.