FOR ALMOST TWO years the shadow of Robert Mueller’s investigation into Russia’s hacking of the 2016 presidential election—and Team Trump’s possible role in it—hung over America like a pall. At times it appeared to drive Donald Trump half-mad with anxiety—and no wonder. The special counsel revealed that the Russian campaign to install him in the White House was more extensive than anyone had feared; Trump is very likely president because of it. He also charged half-a-dozen of the president’s closest advisors—including his former campaign chief and first national security advisers—with crimes, including lying to government investigators about secret contacts with Russian operatives. It seemed only a matter of time before Mueller homed in, somehow or other, on the president himself. Yet, as it has turned out, his conclusions look about as good for Trump as the president could possibly have hoped.
Most of the nearly 400-page report that Mueller, a highly respected former director of the Federal Bureau of Investigation (FBI), has now delivered to Attorney General William Barr is still under wraps. Only a four-page summary of its main conclusions by Barr has been made public. It suggests, most importantly, that Mueller ‘did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in election interference activities’. Great as that is for the president, it is even better news for America. It suggests the constitutional crisis that would have transpired had Mueller concluded otherwise— because the Democrats would then have had no choice but to impeach Trump, and his party would probably have protected him nonetheless—will be avoided. Yet on the second prong of Mueller’s investigation into the Trump camp’s activities, concerning whether Trump obstructed justice in trying to shut down the Justice Department’s various Russia investigations, Mueller was more equivocal.
It was strongly suspected that he had been investigating the president for possible obstruction of justice—the crime that sparked investigations and, ultimately, impeachment proceedings against both Richard Nixon and Bill Clinton. The special counsel’s probe was launched by the Justice Department as a direct response to Trump sacking the FBI director, James Comey, who had been overseeing an earlier investigation into Russian election-hacking. Trump suggested he had sacked Comey in an effort to shut down the FBI probe. He dubbed it a “witch hunt”. This sounded like a straightforward admission of obstruction, and Trump’s subsequent behaviour reinforced that impression. After Mueller’s special counsel probe was launched, in an effort to insulate the FBI investigation from the president, Trump tried to sack him, too. He was foiled only after the then White House legal counsel, Donald McGahn, threatened to quit rather than execute the order.
In other words, it is not hard to see why Mueller might consider the president guilty of obstruction. Yet, even setting aside the fact that the Justice Department has a policy of not indicting a sitting president, pinning Trump for obstruction was never going to be straightforward. Some legal experts—including Barr, significantly—think a president cannot obstruct justice while exercising the legitimate powers of his office: which Trump was doing when he sacked Comey, for example. Most experts disagree, arguing that a president can be held guilty of obstruction, even when exercising his legal and constitutional powers, if he does so with a corrupt or malign motive. But that raises an additional difficulty: how do you prove a president’s motivation for doing something that he is anyway entitled to do? Though Trump said, at one point, he had sacked Comey because of the Russia investigation, he also gave various other explanations for having done so. Which one was accurate? Faced with such “difficulties of fact and law”, in Barr’s phrase, Mueller elected not to rule on Trump’s innocence or guilt in this matter.
The latest polling suggests 71 per cent of Americans do not think Donald Trump has been cleared of wrongdoing. If anything, the intrigue and political rowing over his shadowy ties to Russia are now more vexed than ever
He seems instead to have included substantial evidence of obstruction by the president in his report: including publicly known and other incidents. Yet, according to the attorney general’s summary, Mueller refused to rule on whether he considered that evidence to be clinching. On this question the special counsel wrote that ‘while this report does not conclude that the president committed a crime, it does not exonerate him either ’.
Barr, perhaps not surprisingly, given his expressed views on this matter, took it upon himself to try to resolve the issue. He said that he did not believe the evidence collected against Trump by the special counsel amounted to obstruction. But that has not brought the desired closure—far from it. The latest polling suggests 71 per cent of Americans do not think Trump has been cleared of wrongdoing. If anything, the intrigue and political rowing over Trump’s shadowy ties to Russia—which Mueller had been expected to shine a light on—are now more vexed than ever.
For his part, Trump mendaciously claims to have received a “complete exoneration” on all charges. And he and his supporters are naturally trying to obtain the maximum political advantage from that inaccurate claim. Some go so far as to suggest Democratic politicians who had predicted the president would be found guilty of colluding with Russian election-hackers should face sanction. In particular Trump has launched a war against the Democratic chair of the House Intelligence Committee, Adam Schiff, whom he demeans as “little pencil-necked Schiff”. The Californian Democrat has offended the president by saying he will persist with his own congressional probe into Trump’s links with Russia—and, further, that he considers there to be ample evidence of collusion between the Trump campaign and Russia, even if Mueller did not think it constituted a prosecutable case.
THE DEMOCRATS AT large are torn over what to make of this. Most of their leaders in Congress probably think Mueller has done them a favour. Had he incriminated the president more strongly—especially on his ties to Russia— they would have found it hard not to impeach Trump. Yet a failed impeachment proceeding, which would be likely given the unwillingness of Republican congressmen to go against the president, could be devastating for the Democrats. In the run-up to next year’s presidential election, the news would be saturated in impeachment proceedings, not their rival policy ideas. Most likely Trump, having survived impeachment, would then campaign for re-election claiming to have been vindicated and vowing revenge on his enemies—a ramped up version of his current demeanour. The fact that the Democrats can now avoid impeaching him therefore looks like a substantial opportunity which their leaders are anxious to take. The day after Barr releasing his summary, they pointedly held a press conference to talk healthcare policy, not Russia.
Mueller’s emphasis upon the degree to which Trump was not exonerated by his report sounds like an appeal to the Congress, unencumbered by legal arguments over obstruction, to look at his evidence and reach its own ruling on the matter
At the same time, they cannot leave the subject of Trump and Russia entirely. That is, first of all, because the main focus of Mueller’s inquiry was not the president at all, but the Russian hacking effort, which he showed to be far more extensive than anyone had suspected. The special counsel indicted 25 Russian agents for hacking and releasing Democratic officers’ emails and sowing disinformation in praise of Trump and to blacken his rival, Hillary Clinton. And while America’s intelligence agencies report that this Russian assault on American democracy continues, Trump has done virtually nothing to prevent it. He persists in denying that the Russian election- rigging effort even took place. That leaves his opponents little choice but to keep harping on the issue, to demand Trump take measures to prevent a repeat performance.
In addition, Mueller plainly did not exonerate Trump as he is now claiming. On the matter of obstruction, he could not have made that clearer. His emphasis upon the degree to which the president was not exonerated by his report—a surprising move by a punctilious prosecutor—sounds like an appeal to the Congress, which is unencumbered by legal arguments over obstruction, to look at Mueller’s evidence and reach its own ruling on the matter. Barr says he will release a fuller version of the report, after redacting material that bears on ongoing investigations, but mid- April. If he is true to that promise, Mueller’s reporting on obstruction is liable to ignite a new row in Congress over the issue.
And Schiff is already right to note that there is still plenty of reason—short of the conspiracy Mueller has ruled out—to worry about the president’s links with Russia. The special counsel uncovered a lot of incriminating evidence in this regard, some of which warrants further investigation by Congress. Mueller showed, for example, that even as Trump was campaigning for the presidency—and going out of his way to say some astonishing nice things about Vladimir Putin meanwhile—he was secretly lobbying for a building project in Moscow. If that did not constitute criminal behaviour, it is an enormous scandal, which would surely have jeopardised his standing with millions of voters had they known about it ahead of the 2016 election. There are also important aspects to Trump’s Russia links that the special counsel did not look into: for example, why was the Kremlin so keen to get Trump elected in the first place? It is right that Congress should dig further into these and other Trump-Russia intrigues. Congressional oversight serves a different function to special counsel investigation: its purpose is to provide a public accounting for wrongdoing in high office, and thereby shore up the norms of government. In short, Trump’s opponents are going to feel compelled to carry on harping on Russia to some degree however much they might wish not to. The obvious risk is that they overdo it, fuelling Trump’s claim to be victimised, and drowning out their own nascent policy agenda.
Kamala Harris ticks lots of boxes: A mixed-race first-tern senator from California, she is intelligent and gives a good speech. Yet, it remains to be seen whether she has the spontaneity that common-touch voters seem to crave
AN ADDED COMPLICATION IS that the Democrats are already in the grip of a primary contest to determine who they send out to bat against Trump next year. The realities of 24-hour political news coverage mean that this, not the tactical decisions of their congressional leaders, will determine the posture they adopt towards Trump on Russia and generally. The primary features at least 15 candidates, perhaps half-a-dozen of whom have a realistic chance of securing the Democratic ticket. Conventional wisdom, and early polling, suggests this pack is led by the ‘three Bs’—Joe Biden, Beto O‘Rourke and Bernie Sanders—plus Senator Kamala Harris. O’Rourke, a charismatic former House member, who made a name for himself by losing a Senate election in Texas last year by a surprisingly slim margin, is so far the only one to have called for Trump’s impeachment. It remains to be seen whether he will maintain that position, or whether others might take it up after Barr releases a fuller version of Mueller’s report.
More broadly, the Democratic primary looks like one of the last big unknowns ahead of the 2019 election. Economic growth is slowing—sufficiently for the Trump administration to demand an interest rate cut of the Federal Reserve, an unprecedented intrusion on its independence. Yet there are few signs of an impending recession. And Trump’s support— absent a war or major economic downturn—appears to be remarkably baked in. His approval rating is low by historical standards, but even more strikingly consistent. It has oscillated between a high of 44 per cent and low of 37 per cent ever since his inauguration. Currently at 42 per cent, it is too low to suggest Trump has a strong chance of re-election. Yet it is doggedly competitive in the event that Democrats nominate a weak candidate. And it is by no means clear, on the basis of the primary’s early shots, that they have a strong potential candidate.
All the front-runners appear to have conspicuous weaknesses. Biden, who served as Barack Obama’s much loved vice-president, is old. O’Rourke is callow. Sanders, the only self-declared socialist in the Senate, is also old, and probably too left-wing. Harris ticks lots of boxes: a mixed-race (her mother, Shyamala Gopalan, hailed from Chennai) first-term senator from California, she is intelligent and gives a good speech. Yet, it remains to be seen whether she has the spontaneity that common-touch voters seem to crave—and which O’Rourke, for example, has in abundance. It also remains to be seen how she, or any of the other front-runners, might fare against Trump’s politics of personal destruction.
With Trump cornered by his unpopularity, it was always set to be a bitter and divisive election. But Mueller and Barr have now conspired, unwittingly or not, to make that prospect worse. As things stand, Trump and his die-hard supporters believe they have exonerated the president on all charges. His opponents believe they have done nothing of the kind. It is a mess. It is also a salutary warning to those who are looking to the law to settle political differences. If Trump’s opponents are to remove him, it will almost certainly now be at the ballot-box.