The battle lines have been drawn.
A day after the much-anticipated Mueller report was released to the public, the chairman of the House Judiciary Committee issued a subpoena for the full, unredacted report, setting up a potential legal battle with the U.S. Justice Department for the special counsel’s full findings and underlying evidence.
Chairman Jerry Nadler has asked for the department to comply by May 1, the day U.S. Attorney General William Barr is scheduled to testify before the Senate Judiciary Committee.
The Mueller report contains nearly 1,000 redactions, with seven entire pages blacked out.
Frances R. Hill, professor of law and Dean’s Distinguished Scholar for the Profession at the University of Miami School of Law, who has read the 448-page report, brings us up to speed on its contents and answers key questions such as why it is important that the full report be released to the public.
What issue in the report did you find the most important or concerning?
The report provided a comprehensive analysis of what the Russian government did during our 2016 election (See Vol. I at 14-65). The Russian government was not merely “meddling.” The redacted Report documents systematic cyber attacks on all aspects of our election and even more pervasive and fundamental attacks on our democratic system. These attacks were designed and implemented by Russian Army intelligence units as well as by other cyber warfare organizations financed by oligarchs with very close ties to Vladimir Putin. These attacks were intended to elect Donald Trump. The larger goal was to weaken our country by inciting and amplifying our differences and making us distrust each other, our values, and our institutions. The detailed descriptions of how three types of cyber attacks were conducted, in some cases over several years, are stunning. It included sending operatives to tour parts of the United States to learn more about issues and the terms in which they were being discussed. The Russians recruited unsuspecting Americans to organize rallies, including in Florida, to support Trump by raising tensions among Americans.
This section of the redacted Report states that the Russian government “sent spear phishing emails to public officials involved in election administration and personnel at companies involved in voting technology.” In August 2016, the Russians “targeted” employees of a voting technology company (name redacted) that developed “software used by numerous U.S. counties to manage voter rolls, and installed malware on the company network.”
The Russians did not overlook Florida. In November 2016, the Russians “sent spear phishing emails to over 120 email accounts used by Florida county officials responsible for administering the 2016 U.S. election.” The FBI conducted an investigation of this matter. The redacted report states “the FBI believes that this operation enabled the GRU [Russian Army intelligence] to gain access to the network of at least one Florida county government.” (See Vol. I at 51.)
Did the redacted report shed any light on national security issues arising from these activities?
The redacted report states that the investigation dealt with national security and counterintelligence matters but that these issues were largely handled by the FBI. (See Vol. I at 13). Learning more about this aspect of the investigation makes access to the complete, unredacted report, as well as all the underlying evidence, vitally important. Leaders of Congressional committees from both political parties have security clearances allowing them to read these very sensitive materials. The public should support this access in the interest of developing defenses, even at this late date, of similar measures by more bad actors on a greater scale in the 2020 election.
These national security issues are not addressed by the special counsel’s conclusion that the president did not enter into a formal conspiracy with the Russians. The absence of a crime is not the same as a determination that there is no national security threat. The president has never definitively admitted that the Russians assisted his campaign and that he welcomed their assistance. He has not only failed to take steps to interdict such intrusions into our elections going forward but has actively discouraged efforts to preserve the integrity of our elections by reducing budget allocations for such activities and by directing officials not to spend their time on such matters. Congress needs to gain greater insight into these matters and exercise oversight with respect to these matters.
What other issues in the report did you find particularly informative?
Volume II deals with issues of obstruction of justice. The material on obstruction of justice presents the White House dysfunction in vividly appalling detail. The people closest to the president in the White House recounted numerous instances of being ordered to do things they regarded as “crazy” and in several instances illegal. The president’s closest aides described how he ordered them to lie to Mueller and the FBI and to prepare deliberately untruthful memoranda to the file to create a false narrative of the president’s actions and requested actions.
One could see these themes in action by reading any of the multiple instances of behavior that raised possible issues of obstruction of justice. All of these narratives are based on depositions given under oath to the special counsel’s investigators. For example, the redacted report chronicles the events surrounding the president’s repeated orders to the White House counsel to fire Special Counsel Mueller. White House Counsel Don McGahn refused to follow these orders, as did many other members of the White House staff in other situations. (See Vol. II at 84-87 and 113-120.)
The redacted report presents a thorough, careful, and cautious legal analysis of the elements of a criminal obstruction of justice, which requires evidence of an obstructive act, evidence of a nexus between the obstructive act and an official proceeding, and evidence of the intent to obstruct justice. The redacted report appears to provide strong evidence for charges of obstruction of justice in several of these situations. Whether the president was not indicted because the Department of Justice has taken the position since the Watergate scandal that a sitting president cannot be indicted while in office remains unanswered.
How much do we know about the president’s written responses to Mueller’s questions?
The president claimed to want to “sit down” with Mueller but never did. He did respond, after a fashion, in writing to written interrogatories. The special counsel received the responses in November 2018. In December 2018 the special counsel “informed counsel [for the president] of the insufficiency of these responses in several respects.” Citing the special counsel’s letter, the redacted report states that “the president stated on more than 30 occasions that he ‘does not recall’ or ‘remember’ or have an ‘independent recollection’ of information called for by the questions. Other answers were ‘incomplete or imprecise.’ ” The special counsel again requested an in-person interview, but the president declined.
Committees of the House of Representatives have subpoenaed the full, unredacted Mueller Report as well as the evidence on which it was based. Is this necessary? Why is it important and what purpose does it serve?
Having access to the full, unredacted Mueller Report, as well as to the underlying evidence, is crucial on two levels. First, Congress has a constitutionally mandated oversight role and a constitutional role in protecting national security and election integrity. The leadership from both parties from the relevant committees routinely review very sensitive national security materials and have security clearances required for such review. Second, making as much of the redacted material and the underlying evidence available to the public is important for people to be able to reach their own conclusions about trust in their institutions and in the persons who are now entrusted with the integrity of these institutions. There will be information that cannot reasonably be made public. But that decision should be made based on the national interest, not on the interests of any particular political party or any political leader.
Should Mueller himself by compelled to testify before Congress, and why would it be important that he testify?
Special Counsel Mueller would be able to increase the understanding of members of Congress of the decision not to indict the president on one or more counts of obstruction of justice. His testimony would also be useful to members of Congress with respect to other technical legal issues. Special Counsel Mueller might also provide greater understanding of any lessons his investigation provides for conducting the 2020 election. Finally, he could discuss national security issues not included in the report, although this session would not be public.
The most important reasons for seeking the special counsel’s testimony, however, is to help the rest of us, ordinary Americans, understand his investigation, his insights into what he determined to be true, and what this tells us about the state of our democracy. We all need to hear this and deserve to hear this. We need to know why and on what grounds the special counsel concluded that “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.”
