gracchusdixit

If you ever decide to wade through the 448 pages of Special Counsel Robert Mueller’s Report on the Investigation into Russian Interference in the 2016 Presidential Election, you may find yourself coming away deeply frustrated.  I certainly did.  Not only because the report declined to indict Donald Trump—though that is depressing enough—but also because it is, in crucial ways, incomplete, inconsistent, and illogical.  For all its careful language and copious footnotes, for all its fastidious attention to legal detail, the Mueller report is marred by a series of logical mistakes.  

I am no lawyer.  One doesn’t have to be trained in the law, however, to understand legal reasoning.  A legal argument is no more complicated than a simple syllogism or a proof in Euclid’s geometry, which millions of kids used to study in high school.  Such arguments state a problem, identify the postulate or premises that apply to the problem, and draw the conclusions that necessarily follow.  Legal arguments are no different.  They lay out a contested issue or crime, identify the applicable laws, and then draw conclusions regarding liability or guilt.  

The Mueller report violates this logical framework at several crucial points, beginning at the very outset, on Page 1 of Volume I:

Although 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 information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.

The problem here is the concept of “coordination,” which is invoked to reach a conclusion regarding the crime of conspiracy, even though “coordination” has no agreed-upon legal meaning.  So, the Mueller team decided to make one up:

Like collusion, ‘coordination’ does not have a settled definition in federal criminal law.  We understood coordination to require an agreement—tacit or express—between the Trump Campaign and the Russian government on election interference.  That requires more than the two parties taking actions that were informed by or responsive to the other’s actions or interests.  We applied the term coordination in that sense when stating in the report that the investigation did not establish that the Trump Campaign coordinated with the Russian government in its election interference activities.

If “coordination does not have a settled definition in federal criminal law,” what justifies the Mueller team’s arbitrary stipulation that it “requires more than two parties taking actions that were informed by or responsive to the other’s actions or interests”?  That’s not what the Oxford English Dictionary, the ultimate authority on our language, says.  It defines “coordination’ as nothing more than “the harmonious functioning together of different interrelated parts”.  That definition surely applies to Donald Trump’s infamous proclamation, “Russia, I hope you’re listening.”

It is impossible to read the findings of Volume I of the Mueller report without concluding that Trump and his people knew what the Russians were up to, declined to rebuff their advances, failed to report their illegal acts to law enforcement, and gleefully looked forward to benefitting from Russia’s malign interference in the election.  For reasons never explained, however, the Mueller team declined to consider any indictments for such behavior.  Volume I limits itself solely to the question of “conspiracy,” even though the Special Counsel’s mandate was much broader, extending to “any links” between the Russian government and the Trump campaign.

Volume II of the report is even more problematic.   It details a dozen cases of perjury, obstruction of justice, destruction of evidence, and the intimidation of witnesses, in several of which Donald Trump was directly involved.  His criminal behavior is therefore not in doubt.  

Mueller and his team nonetheless declined to indict him—not because they believed him to be innocent but, rather, because of a Justice Department opinion that a president cannot be indicted while in office, on the grounds that such an indictment would interfere with the performance of his executive duties.

The political motivations animating this opinion have always been suspect—and for good reason.  The notion that presidents are immune from indictment or prosecution is not embodied in law, does not appear in the Constitution, and has never been ruled upon by any court.  This notion was first promulgated in 1973 by Richard Nixon’s Justice Department, in the midst of the Watergate scandal, and then affirmed by Nixon’s Solicitor General, Robert Bork, a man whose nomination to the Supreme Court by Ronald Reagan was overwhelmingly rejected because of his extreme and partisan views.

What’s more, a veritable army of constitutional scholars vehemently disagree with the claim of presidential immunity on substantive grounds.  Not only does such a claim violate the foundational principle that no person is above the law, it also gives presidents free reign to commit even the most heinous of crimes.  Carried to its logical conclusion, this claim would allow Donald Trump, as he once boasted, to stand in the middle of Fifth Avenue, shoot someone, and pay no price.  This makes no legal, constitutional, or moral sense.

Even if one were prepared to accept the Justice Department’s opinion, the Mueller report’s application of that opinion is absurd.  After invoking presidential immunity as a reason not to indict Trump, the report refuses to say whether he would otherwise have been indicted.  This refusal is justified on the grounds that it would be “unfair,” because Trump would have no chance to defend himself in a courtroom.  The report say, in effect:  Because we can’t indict Donald Trump, we can’t try him, even if he’s committed a crime; and we can’t tell you whether he’s committed a crime, because we can’t indict and try him.   

This is the legal equivalent of a dog chasing its own tail and doesn’t qualify as a logical, let alone a legal, argument.  It is, rather, a tautology—a false and circular argument, in which premise and conclusion, cause and effect, are one and the same.  

It is also ridiculous on its face.  Donald Trump is not a defenseless private citizen, who needs to be protected against the mighty weight of the law or the state.  He is the head of state and has more than enough power—armies of lawyers, unlimited access to the media, nearly unfettered control of the executive branch of government—to defend himself against any and all charges.

Mueller’s final and most serious mistake comes at the end of Volume II, which concludes with these words:  

At the same time, if 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, we are unable to reach that judgment.  Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

This language completely undercuts the earlier argument about the “unfairness” of proclaiming Donald Trump’s guilt, even if the Justice Department won’t allow him to be indicted.  By declining to exonerate Trump, the Mueller report effectively insinuates his guilt without stating it.  This is a sleight of hand, which isn’t “fair” to anyone, least of all to the American people.

Either Donald Trump committed crimes or he didn’t.   If Mueller had probable cause to think he did, he should have said so.  If he didn’t, Mueller should have said that.   But he chose to do neither.  In making that choice, Robert Mueller made the worst mistake of all:  he failed in his duty to uphold the law and defend the nation against the most corrupt and dangerous president in our history.