Mueller Report and Political Rubble 
Compiled by Walter Sorochan Emeritus Professor San Diego State University

Posted July 26, 2019;  Disclaimer

This article summarizes, in simple easy to understand format, the findings of Mueller's Report; it also points out the shortcomings of the political format of having Mueller testify about the report to congress, and makes suggestions on how to rectify the political system.

This author woke up at 5:00am on July 24, with much anticipation, to watch Robert Mueller testify to congress about the Mueller Report. I was hoping to see some resolution and clarity between the Republican and Democratic spins on this report and President Trump's accused obstruction of justice, misdemeanors and crimes.

It was Mueller who was supposed to have center stage, but didn't. Instead of Mueller shedding light about controversial questions, politicians took control of the presentation away from Mueller. Politicians spoke, asked  questions and monopolized the hearing.  The procedure of this congressional meeting became a terrible, boring circus. The politicians acted like vultures trying to make themselves look good at Mueller's expense. It was evident that Mueller did not like it and did not want to be there.

The Report itself is 488 pages long and, like Mueller's six-hour supposed testimony before the congressional committee, the report is written in legal format; it is a lawyer's 'legality' report written for lawyers; that the general public has difficulty following and understanding. This was especially true of the July 24 congressional meeting, where politicians did all the talking and spun sections of the report to their liking, thereby adding to the listener confusion. The truth was seldom explained. This author's comments that the Mueller Report is somewhat complex and difficult to understand does not imply that the report is useless as President Trump says it is. Far from it. Mueller and his investigators back up what they found with legislative evidence. They state the legal legislation and how it may or not apply to certain aspects of the investigative findings. That President Trump and others deliberately misinterpret or rebut the findings of the report does not make it useless ... far from it. Mueller's Report is a great document. It is how one interprets the report that can distract from the truth.

Here is what the reader needs to know:

Mueller's investigation guideline and report limits: Mueller's investigation stayed within the confines or limits of the appointed Department of Justice order guidelines, defining what Mueller and his team of investigators could and could not investigate and say. The informational collaborating references to Mueller's [free] Report were taken by author Sorochan from: U.S. Department of Justice website, Special Counsel Robert Mueller III, Report On The Investigation Into Russian Interference In The 2016 Presidential Election, Volumes I and II, Washington, D.C., March 2019, 448 pages; Mueller Report . This report source is free and easy to download.

"The Appointment Order authorized the Special Counsel's Office "to prosecute federal crimes arising from [its] investigation" of the matters assigned to it. In deciding whether to exercise this prosecutorial authority, the Office has been guided by the Principles of Federal Prosecution set forth in the Justice (formerly U.S. Attorney's) Manual. In particular, the Office has evaluated whether the conduct of the individuals considered for prosecution constituted a federal offense and whether admissible evidence would probably be sufficient to obtain and sustain a conviction for such an offense. [Justice Manual § 9-27.220 (2018)" Volume I page 174].

Mueller was further directed and restricted in the search for the truth by definitions of justice codes:

"the Attorney General, pursuant to 28 C.F.R. § 600.8(c), states that, "[a]t the conclusion of the Special Counsel's work, he ... shall provide the Attorney General a confidential report explaining the prosecution or declination decisions [the Special Counsel] reached."" ,[Volume II, p.1]

Under Section 1001(a)(2), it is a crime to knowingly and willfully "make[] any materially false, fictitious, or fraudulent statement or representation" "in any matter within the jurisdiction of the executive ... branch of the Government."

Under the federal perjury statutes, it is a crime for a witness testifying under oath before a grand jury to knowingly make any false material declaration. [See 18 U.S.C. § 1623.]

Obstruction of Justice. Three basic elements are common to the obstruction statutes pertinent to this Office's charging decisions: an obstructive act; some form of nexus between the obstructive act and an official proceeding; and criminal (i.e., corrupt) intent. "Obstruction-of-justice inquiry focused on a series of actions by the President that related to the Russian-interference investigations, including the President's conduct towards the law enforcement officials overseeing the investigations and the witnesses to relevant events." [Volume II p.2]

Mueller investigation found the president: [Volume II pp. 4-8]

  • 1. made efforts to curtail the Special Counsel's investigation.
  • 2. made efforts to prevent public disclosure of evidence.
  • 3. made further efforts to have the Attorney General take control of the investigation
  • 4. made efforts to have McGahn deny that the President had ordered him to have the Special Counsel removed
  • 5. unethical conduct towards Flynn, Manafort
  • 6. unethical conduct involving Michael Cohen
  • 7. engaged in a second phase of conduct, involving public attacks on the investigation, non-public efforts to control it, and efforts in both public and private to encourage witnesses not to cooperate with the investigation.
  • 8. tampered with witnesses: A more specific provision in [Section 151] 2 prohibits tampering with a witness. [See 18 U.S.C. § 1512(6 )(I)], (3) (making it a crime to "knowingly use[] intimidation ... or corruptly persuade[] another person," or "engage[] in misleading conduct towards another person," with the intent to "influence, delay, or prevent the testimony of any person in an official proceeding" or to "hinder, delay, or prevent the communication to a law enforcement officer . . . of information relating to the commission or possible commission of a Federal offense". To establish corrupt persuasion, it is sufficient that the defendant asked a potential witness to lie to investigators in contemplation of a likely federal investigation into his conduct.
  • 9. made efforts to remove the Special Counsel
  • 10. attempted and endeavored to obstruct justice

After more than a year of discussion, the President declined to be interviewed.

CONCLUSION regarding Presidential obstruction of justice: "Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President's conduct. The evidence we obtained about the President's actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. 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." [Section II p182.]

Mueller's explanation: "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. [Vol II p.8] Three basic elements most common and relevant to obstruction statutes: ( 1) an obstructive act; (2) a nexus between the obstructive act and an official proceeding; and (3) a corrupt intent." [See, e.g. , 18 U.S.C. §§ 1503, 1505, 1512(c)(2). p.9]

Mueller’s team could NOT rule out that Trump criminally obstructed justice:

"the investigation established that Russia interfered in the 2016 presidential election through the "active measures" social media campaign carried out by the Internet Research Agency [IRA], an organization funded by Prigozhin and companies that he controlled. As explained further in Volume I, Section V.A, infra, the Office concluded (and a grand jury has alleged) that Prigozhin, his companies, and IRA employees violated U.S. law through these operations, principally by undermining through deceptive acts the work of federal agencies charged with regulating foreign influence in U.S. elections."

President Trump's actions in defending the constitution are in question by the report. He neglected to take action to minimize the interference of other countries [Russia] in future election processes and protect the security of the union and its people. 

Mueller's appearance in congress was supposedly to be a testimonial although his presence and presentation was loosely defined. It was not a report. Mueller's job was to invesigate, draft the report and present it to the justice system, which, in turn, would turn the report over to congress. It is up to congress to do something with the report. Congress has the power to impeach the president; Mueller does not!

Some after thoughts about the entire political and investigative procedure:

It appears that many of the general public are reluctant to accept the findings of Mueller's Report. This is a real delimma that begs an explanation. People are more concerned about the ineptitude and breakdown of the entire political and government system than they are about the findings of the Mueller Report. They silently give a higher priority to fixing the ailing political system than to Mueller's Report. People sense that the past 20 years has been one of dyfunctional government and that government is not working for them. The idea of impeachment does not address the undiscussed issues of getting the White House to function for people and not for politicians. Indeed, President Trump got elected on the presumption that he would clean house and restore good government. Mueller's Report eludes the real issues of people .... that the political process is not working and is not being fixed. Mueller"s Report is viewed by many as a distraction from the more immediate needs of people.

Mueller's presentation to congress is an example of how congress is not working. Politicians at the hearing used defamatory tactics to belittle investigator Mueller and did not give him time to clarify questions; this format was a sham. The format of how Mueller presented his report to congress did not help the public to understand the significance of Mueller's findings.

Then there is the inability of the existing political system itself to function and do the elected work of government for the people. The American government system is supposed to abide by the Constitution of the United States that was drafted in 1776.  This drafting took place at a time of slow change in the world, before the advent of the steam engine and the industrial revolution. The articles of the constitution as drafted at this early time did not work perfectly. The fathers, in drafting constitution, stated that the constitution was a political experiment and that it may need to be updated. Unfortunately, the constitution has not changed much since. But the constitution is much like a car that needs to be maintained and fixed.  Today's politicians often bypass some aspects of the constitution, but the constitution  has seldom been amended. 

Americans are glued to the constitution as if it will always save them and last forever. It is not set in concret as some may think. The constitution, which was written at a time of little social and economic change [arithematical], may need to be ammended or fixed to bring it up to today's world where change is happening very fast [exponentially]. When there is gridlock [political dyfunction and white house does not work] for many months and even years, we have to wait until the next election with the hope of having new politicians fix the broken system. This approach may have been acceptable when change occurred slowly 200 years ago, but it is not working today when change occurs very rapidly. We cannot afford to wait two or more years for politicians to make a change that may not happen because it may be out of date. There has to be way to force politicians to make instant change when government is not working.

The general public is unhappy with most representative politicians, political parties and elected government. There is a tide of voter discontent. Millions of voters are changing their affiliation from a Republican or Democratic party to declaring as an independent voter. Political parties are losing public support. This is another reason to consider a new approach.

One consideration is to possibly borrow an idea that many countries in Europe and Asia, including United Kingdom,, Canada, Australia, Germany, France and Spain have in their constitution. A politician or party can ask for a 'vote of confidence in the government', in the prime minister or ministers, at any time. If the majority of politicians pass a vote of  'no confidence in the government' then the prime minister must call for a new election within a specific period of time, like in Sweden within three months. There are many country versions of 'vote of confidence' idea and these are discussed on the internet [Wikipedia].

There are three versions of no confidence vote: 1) no confidence in government [best and simplest] 2) no confidence as in defeating an important bill or defeating a budget and 3) constructive votes of no confidence in a political leader but having confidence in someone else. Most countries, with the United States, usually have a hybrid vote of no confidence.

The vote of no confidence idea may not be a perfect solution, but it can instantly force the political leader, disagreement over budget issues, gridlock over motions and conduct of appointed ministers, to work collectively for the people. Such an idea could easily be inserted as an ammendment into the constitution of United States.

Think of all the money that would be saved holding a short term election. And yes, this may also help solve the election funding that is out of control.

Nothing is sacred and we should have an open mind to solving problems.  

This author read the Mueller Report twice in addition to watching the July 24 spectacle.