This blog sets out how Canadian national leadership is different than in the US, provides an example from the past (Nixon), but more than anything, it shows what can happen when a lengthy and thorough report is widely mishandled and misunderstood by the media and the public.
So far, I am the only Canadian I am aware of who has read the whole of the Mueller Report; all 729 pages. This report is by a special counsel who looked into Russian meddling in the 2016 Presidential campaign.
Before I give you my takeaways from the report, young Canadians need to know that Canadian leadership is different than in the United States. Our Prime Minister (PM) leads a party and the party must win the most seats to win (or enter into a coalition with another party if they don’t have the most seats). The Prime Minister is the head of his or her party and also has a riding that he or she must win in order to last as PM. Our PM is not directly elected by voters. The largest direct election of a political leader in Canada is the mayoralty of the City of Toronto.
In the United States, the President not only leads his or her party but is directly elected and must win the most votes in a Byzantine relic of the 18th century known as the Electoral College. President Trump lost the 2016 popular vote by over 3 million votes but won the election in the Electoral College.
The President has control over the executive branch of government. The President can only be removed from office by committing a criminal act from which he or she is not immune from prosecution or by being impeached by both the House of Representatives (the House) and the Senate.
On August 9, 1974, Richard Nixon resigned the presidency because he was going to be impeached by both the House and Senate over the so-called ‘Watergate’ scandal. He had already fired the special counsel investigating obstruction of justice in the White House. In the infamous Saturday Night Massacre, two senior officials refused to do Nixon’s bidding and only the third agreed to fire special counsel Archibald Cox. It was later ruled that Cox’s firing was illegal because Cox had done nothing wrong. Another special counsel replaced Cox eleven days later.
Nixon was not prosecuted because he was pardoned by newly appointed President Gerald R. Ford. Nixon was not further named in other lawsuits as he ostensibly had not committed other crimes.
A President of the United States cannot be charged with obstruction of justice while he or she is President. Therefore the obstruction of justice laws that apply to everyone else do not apply to the President. The only way to deal with non-criminal obstruction of justice by a President is to impeach the President or wait until he or she is no longer in office.
This is the essential backdrop to the Mueller Report. What are my main takeaways?
- There was no collusion between the Trump team and Russia
In Volume 1 of his report, Mueller found that the Russians did not want Hillary Clinton to win the election and began supporting many Republican candidates finally supporting Trump’s candidacy.
They did this in two ways. They invented or backed organizations that supported Clinton that would be seen as negative for candidate Clinton and they invented or backed organizations that supported Trump.
When the Trump team discovered the Russian efforts, it appears that they may have attempted to collude with them but eventually were either rebuffed or did not do so.
- Social media companies formed a broad platform for Russian interference and made scads of money.
Facebook and Twitter permitted the creation of tens of thousands of rogue Russian accounts dissing Hillary or supporting Trump. They paid the social media companies millions of dollars to amplify their voices through a number of equally rogue accounts. The fake accounts reached over one third of the US population.
They staged fake rallies against Hillary and in favour of Trump. They spread false rumours and created fake news. It is possible that the net effect of the Russian efforts was the election of President Trump. The passive complicity of social media giants that conveniently allowed them to make millions off rogue Russian accounts is now partly responsible for social media companies coming under fire.
- The Russians hacked into Hillary’s emails and many others in the Democratic National Committee (DNC) and gave them to WikiLeaks
The common view seems to be that the Russians hacked into Hillary’s emails only. That is not true. Mueller found that thousands of emails from many DNC accounts were hacked. Whenever things were going bad for Trump, they dumped a load of emails onto WikiLeaks. Julian Assange, a Trump supporter, said the leaks did not come from the Russians but he was lying. They did come from Russia and he knew it. The emails were embarrassing as they showed the usual partisan inner workings of an election campaign that no party wishes to come to light.
- A sitting President cannot be charged with obstructing justice. Accordingly, Mueller found that there were no criminal proceedings that could take place because of obstruction of justice noted in Volume 2 of his report.
Mueller seems to have exonerated the President because he said there was no collusion and did not call for charges being laid against the President for obstruction of justice. However, there is no real exoneration. There was no collusion because the Russians clearly supported any Republican candidate running against Hillary. When Trump became the official candidate, they supported him and tried to work against her.
There was no obstruction of justice because a sitting President cannot be charged with that offence.
- The American media is spectacularly wrong in recommending that Mueller should have gone beyond his role as special counsel. And the American media are also resoundingly lazy in their approach to the Mueller Report
As special counsel, Mueller was in the business of discovering if crimes had been committed in respect of the Russian meddling in the election. He found that crimes had been committed and several people were interviewed and a number of them were charged and went to jail. Prominent among the convicted and jailed are Paul Manafort (campaign chair) and Michael Cohen (Trump Counsel). Several Russians were also charged. Many of them do not live in the United States but would be prosecuted if they returned.
The whole idea of Mueller saying more than he did and calling for the prosecution of the President would stand as a flagrant abuse of his office. It is not Mueller’s role as special counsel to call the law into question. Although some journalists would prefer it if a sitting President could be charged with obstruction, a special counsel has no role in criticism of the law.
If Mueller had gone further, it is quite likely that the role of a special counsel that investigates presidential wrongdoing would become a dead letter. No one would ever appoint a special counsel again if the special counsel, instead of upholding the law, began to take on the role of questioning it.
Many in the American media should be ashamed of themselves, not just for their call for Mueller to go rogue and exceed his authority, but for their failure to actually read his report. It is clear to anyone who actually read the Mueller Report that at least initially, very few and perhaps no one in the media actually read it cover to cover.
This created a situation where Mueller himself was moved to hold a media conference where he simply went over what he had written. To anyone who had read the report, his press conference was utterly unsurprising. He simply reprised what he had written.
But the reaction of the media in general was that Mueller had said something new. He did not. Their reaction was then that Mueller himself should do the media’s job of criticizing American law as it relates to the President. This is clearly absurd.
- Mueller prepared the legal case against the President for a time when he is no longer President
Georges Santayana noted that those who do not learn the lessons of history are bound to repeat the mistakes of the past. In this regard, Trump may be repeating Nixon’s errors.
Since he may be charged with obstruction of justice when he is no longer President if he loses in 2020 – there are three strong cases outlined by Mueller in lugubrious detail and other secondary cases along with other legal jeopardy – Trump will need to be pardoned by the next President.
Since Trump appears to be invulnerable to impeachment in the US Senate (Nixon was prospectively not so lucky), he has three scenarios facing him:
- Stay on as President and run again and win, thus avoiding post presidential prosecution due to the statute of limitations on obstruction charges
- Resign and be pardoned by new President Pence; or
- Lose the presidency and hope that he would be pardoned by a Democratic president.
The first two scenarios would save Trump from prosecution on obstruction and perhaps some other matters, but many of the crimes he would be accused of would not be covered by a Presidential pardon in any event.
But more than anything else, Volume 2 of the Mueller report does almost all the work that prosecution teams would have to do to lay out an obstruction case against the President for a time when Trump is no longer President. Readers of the report are treated to an impressive barrage of case law, precedents, evidence and legal reasoning that makes it more than clear that a comprehensive pardon or a 2020 win are all that lies between Mr. Trump and criminal charges. Stay tuned.
- Start eating popcorn – the show’s not over –and revealing redactions is not the answer
The movie version of the Mueller Report has not yet been made. But much of the Volume 1 evidence was redacted by the Attorney General for reasons that innocents would be harmed or that the material could prejudice ongoing investigations.
Those investigations are underway. In addition, redactions are in place that relate to Mueller not wanting others to know what techniques he used in investigating and discovering evidence.
That’s a long way of saying that an unredacted version of the Mueller Report should not and will not be released anytime soon. Once again, media reports calling for an unredacted version appear to suffer from the same problem that the media has had with other aspects of the report. That problem is that much of the media appear to have simply not read the report.
Why prejudice ongoing investigations? Why expose the innocent? And why would a government reveal investigative techniques especially to those investigated who were clearly trying to either hide or obscure their tracks.
The redacted version of the Mueller report is quite enough as it sets out just how interesting the next two years will be – and very little of that is in the media today.
Js/June 14, 2019 rev. June 15