Cases Closed

The scandal involving Russian attempts to help Donald Trump win the 2016 presidential election never acquired a catchy nickname or defining detail, and that may be one reason the story faded so quickly from public consciousness. The words “Watergate” and “Monica Lewinsky” immediately summon specific facts and images, but the first scandal of the first Trump presidency, to the extent it’s remembered today, is probably best known for the man who led the investigation of it. For a time, many of Trump’s critics regarded Robert Mueller as a potential savior, but at least as far as the president was concerned, the prosecutor’s case fizzled and then, for the most part, disappeared.

Three of the top prosecutors on Mueller’s team, Aaron Zebley, James Quarles, and Andrew Goldstein, have written an account of their work, and it comes with a brief preface by Mueller, so it’s fair to say that Interference stands as the authorized record of the investigation. It’s an earnest, serious chronicle and a useful supplement to the 448-page report that Mueller delivered to Attorney General William Barr in March 2019. The Mueller report disclosed what investigators discovered about Trump and Russia; Interference describes how they made those discoveries and brought some prosecutions in court.

From the beginning, Mueller, whose title was special counsel, was bound by a Department of Justice policy, established in 1973 and ratified in subsequent decades, that forbids the indictment of a sitting president. But that policy also states, as the authors of Interference write, that a sitting president “could be investigated during his presidency and could be indicted when he is no longer president.” Accordingly, Mueller and his team labored to determine whether Trump committed crimes not just during his first campaign but also once he was in office. And it is on this subject—the investigation and consequences of presidential criminality in office—that Interference is most notable, because it may stand as the final chapter of a vanished era.

Trump has returned to the White House with still greater disdain for the norms and perhaps even the laws that limit the executive branch. But this time, unlike in his first term, Trump will enjoy the protections established by the Supreme Court’s decision last year in Trump v. United States.^* Mueller conducted his investigation, and Interference was written, before the Court rewrote the rules of presidential accountability. Implicitly, and certainly unknowingly, the authors raise the question of how the Mueller investigation—or any investigation of presidential misconduct—would have unfolded if the Trump decision had been in effect. The answer is chilling.

Mueller’s investigation covered two broad areas. The first concerned Russia’s involvement in the 2016 campaign. Interference offers a bracing reminder of just how hard Vladimir Putin’s government worked to elect Trump and, more to the point, defeat Hillary Clinton. Quoting the Mueller report, the authors write, “The Russian government interfered in our democracy in sweeping and systematic fashion.” Working out of a building in St. Petersburg, Russian agents created fake campaign materials. Largely using Facebook, they

planned and advertised rallies to support Trump at specific US locations, invited Americans to attend, provided banners for Americans to wave, and then handed off logistical responsibilities to real Americans.

Even more consequentially, Russian military intelligence operatives hacked into e-mail accounts belonging to Clinton’s advisers and then made the contents public in order to embarrass Clinton and bolster Trump. These e-mails, many of which were laundered for distribution through WikiLeaks, generated an enormous amount of negative attention for Clinton, especially in the final weeks of the campaign, even though in retrospect their content was not especially sensational or incriminating.

Mueller’s principal investigative interest was whether Trump or anyone around him participated in the Russian efforts. There is no federal crime called “collusion,” but that was how the question was usually described at the time. If the Trump forces had assisted the Russians, they might have joined an unlawful conspiracy, but neither Mueller nor anyone else was ever able to find evidence of that. There is little doubt that Trump appreciated the Russian initiatives on his behalf, as familiar examples from the period demonstrate. At a press conference on July 27, 2016, he implored “Russia, if you’re listening,” to find Clinton’s purportedly “missing” e-mails. Five hours later Russian government hackers launched attacks on the Clinton team’s e-mail accounts.

On June 3, 2016, Rob Goldstone, a British publicist with ties to a Russian oligarch, e-mailed Donald Trump Jr. with an offer of

some official documents and information that would incriminate Hillary [Clinton] and her dealings with Russia and be very useful to your father…. This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump.

Trump Jr. replied, “If it’s what you say I love it especially later in the summer.” A few days later he and campaign officials met with a Russian lawyer, but nothing seemed to come of it. In all, Mueller failed to identify a “meeting of the minds,” or collaborative actions, between Trump’s team and the Russians and thus had no criminal conspiracy to prosecute.

The more legally consequential part of Mueller’s work examined Trump’s efforts, once he became president, to obstruct the investigation of his connections to Russia. “It’s not the crime, it’s the cover-up” is more than a Washington cliché; it has been true of most presidential scandals at least since Watergate. Like other investigators of presidential misconduct, Mueller sought to determine whether and how Trump used the power of his office to stymie the investigation. This is the kind of investigation most threatened by the decision in Trump v. United States.

Consider, for example, one important part of Mueller’s probe. On May 9, 2017, Trump fired James Comey, the director of the FBI. As summarized in the Mueller report:

The day after firing Comey, the President told Russian officials that he had “faced great pressure because of Russia,” which had been “taken off” by Comey’s firing. The next day, the President acknowledged in a television interview that he was going to fire Comey regardless of the Department of Justice’s recommendation and that when he “decided to just do it,” he was thinking that “this thing with Trump and Russia is a made-up story.”

The question for Mueller, then, was whether Trump fired Comey to interfere with the Russia investigation and thus committed the crime of obstruction of justice. Because of the Department of Justice policy against indicting sitting presidents, Mueller did not have the option of charging Trump. But he did examine this and other possible acts of obstruction in detail to see whether Trump had committed the crime and could be prosecuted for it after he left office. In the end, Mueller offered a convoluted summation of this part of his investigation: “While this report does not conclude that the President committed a crime, it also does not exonerate him.” In more direct words, Mueller decided that Trump, as president, might well have committed obstruction of justice.

Mueller conducted his probe on the assumption that Trump’s legal immunity would last only as long as his term in office. But the decision in Trump v. United States dramatically expanded the scope of presidential immunity from prosecution to include the time after a president leaves office. In his opinion for the Court, Chief Justice John Roberts created a new set of rules for when and whether former presidents can be prosecuted, based on a purported distinction between official and unofficial conduct in office. According to Roberts, a president can be prosecuted for actions taken in an “unofficial capacity” but should be immune from prosecution in the application of his official powers. That immunity is “absolute” when it comes to the “exercise of his core constitutional powers,” and even outside that core area, he should enjoy a “presumption” of immunity. Much of Roberts’s opinion is devoted to outlining what behavior falls into each of these three categories—“core” official functions, other official functions, and unofficial actions.

One of the “core” powers is especially relevant to the firing of Comey. Quoting an earlier Supreme Court opinion, Roberts wrote, “The President’s power to remove—and thus supervise—those who wield executive power on his behalf…follows from the text of Article II.” As a result, the courts may not

adjudicate a criminal prosecution that examines such Presidential actions. The Court thus concludes that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.

It is clear that the president has the power to supervise and remove the FBI director, so firing Comey, according to Roberts, could not under any circumstances be the basis for a criminal charge against Trump. Indeed, even if Mueller found evidence that Trump had dismissed Comey entirely for corrupt reasons—for example, solely to save himself from an investigation that might find him guilty of other crimes—he could still not be prosecuted.

But Roberts’s opinion extended presidential immunity even further. The chief justice stated that a prosecutor may “point to the public record” to establish certain facts—that Trump fired Comey, for example. But in perhaps the most extraordinary passage of the Trump opinion, Roberts wrote:

What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety. As we have explained, such inspection would be “highly intrusive” and would “seriously cripple” the President’s exercise of his official duties.

In other words, not only are prosecutors forbidden from charging a president with a crime for his official actions; they are banned even from investigating the action at all.

The implications of this are staggering. The issue of intent is central to the investigation of virtually all white-collar crime, including in the White House. Examinations of presidential misconduct have always required prosecutors to “inspect the President’s motivations for his official actions.” But that is now off-limits. As a result of the Trump decision, presidents may now refuse to provide most evidence to criminal investigators. The evidence that turned Richard Nixon’s last congressional supporters against him and sealed his fate was the release of the “smoking gun” White House tape of June 23, 1972, which recorded a conversation that took place one week after the break-in at Democratic National Committee headquarters in the Watergate office complex. In that conversation Nixon approved a plan for H.R. Haldeman, his chief of staff, to instruct the CIA to tell the FBI to curtail its investigation of the break-in on spurious national security grounds. Under Trump v. United States, Nixon’s statement would not amount to obstruction of justice because it related to the president’s official duties—that is, supervising the FBI and the CIA. Indeed, prosecutors may not have been allowed to examine the Watergate cover-up at all because that would be to “second-guess” the propriety of presidential decision-making on “official” matters.

Trump used the tools at his disposal to stymie Mueller’s investigation, including at one point telling his White House counsel, Don McGahn, to arrange for the firing of the special counsel. McGahn refused to do so, and this formed the basis of another part of Mueller’s investigation of the president for obstruction of justice. As with Comey’s dismissal, any putative case based on Trump’s instruction to McGahn would probably also be foreclosed by the Supreme Court’s ruling. Trump’s other attempts to frustrate Mueller included publicly denouncing the prosecutor, offering minimal or nonexistent cooperation with demands for documents, and discouraging witnesses from cooperating by dangling the possibility of presidential pardons.

Much of Interference is devoted to the Mueller team’s efforts to respond to Trump’s tactics. In discussing Mueller himself, the three authors are never less than reverential. They do not address his apparent physical and mental decline, which drew a great deal of attention after his testimony before Congress on July 24, 2019, when he was seventy-four. (His anemic two-page preface to Interference doesn’t add to the case for his acuity.) To be sure, Mueller had some successes. He won cases against Michael Flynn, Trump’s first national security adviser, for lying to the FBI; Paul Manafort, Trump’s onetime campaign chairman, for committing fraud; and Roger Stone, Trump’s longtime adviser, for lying to Congress and tampering with witnesses. Shortly before the end of his first term Trump, as he had signaled he would, pardoned all three.

Notwithstanding Trump’s taunting, Mueller and his team conducted themselves honorably and, it seems, didn’t miss any smoking-gun evidence against him or anyone else. Mueller decided not to expand his investigation to include Trump’s business and financial ties to Russia, a defensible choice in light of the absence of promising leads. Still, despite years of experience in the capital, including more than a decade as FBI director, Mueller displayed little Washington savvy as special counsel. Indeed, two of the major set pieces in the book leave the impression that the prosecutors were thoroughly bamboozled by Trump and his allies.

The first concerns Mueller’s efforts to obtain an interview with Trump. As the authors put it, in characteristic deadpan, “The more we learned during the investigation, the clearer it became that we would want to speak with the president directly, even if securing an interview would prove challenging.” When prosecutors want to interview someone, they usually do it by issuing a subpoena to testify before a grand jury.

But Mueller and his staff dithered. They didn’t want the immediate confrontation of a subpoena, which they knew Trump’s lawyers would challenge in court, so they spent months negotiating for a voluntary interview, which was clearly never going to happen. The subjects of criminal investigations rarely want to talk to prosecutors, and considering Trump’s history of pervasive dishonesty, it would have been madness for his lawyers to expose him to Mueller and his team.

In the absence of a subpoena, Trump’s lawyers strung Mueller along until they effectively ran out the clock. By the time the prosecutor’s patience was exhausted, a subpoena would have meant waiting many months for the resolution of litigation, which might have wound up before the Supreme Court. And Trump, on the advice of his lawyers, might have taken the Fifth and declined to answer questions anyway. So Mueller settled for presenting written questions, which predictably produced heavily lawyered, nearly useless answers from the president.

The second story makes Mueller look even worse. As special counsel, he was required to file a final report summarizing his findings. Because he could not indict the president, the conclusions in his report about Trump’s conduct would obviously be extremely important and newsworthy. But the special counsel was obligated first to turn over his report to the attorney general, William Barr. Barr had promised to display “transparency” with the report, but he never spelled out how or when he would release it, or in what form.

Interference describes a meeting Mueller and Aaron Zebley (one of the authors of the book) had with Barr and his staff shortly before Mueller turned over the report. The account includes an astonishing exchange. At the end of the session, Barr asked Mueller:

“Will the report have an executive summary?”

“Yes,” Bob responded. Aaron breathed a sigh of relief. He took Barr’s question to mean that if Barr were to release anything in the short term, then it would be our executive summaries.

But, incredibly, neither Mueller nor Zebley ever followed up to ask Barr directly if he would release the summaries—there were two, one for each volume of the report—or how he would handle the release of the report at all. Even in the authors’ recounting, Barr made no commitment; he just asked a question. Yet Zebley heard what he wanted to hear from the attorney general. As it turned out, Barr did not release Mueller’s executive summaries after receiving the report. Instead he distributed his own four-page summary that spun the report in the most favorable way for Trump. Unlike Mueller’s summaries, which were highly critical of Trump’s behavior, Barr said that Mueller left it to the attorney general to determine “whether the conduct described in the report constitutes a crime.” Barr then added his own conclusion that “the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.” In other words, the only initial public summary of the report amounted to an exoneration of Trump, which was not what Mueller intended or what the report said.

Barr also said that the report would have to be analyzed to see whether it included classified information or anything else inappropriate for release. Thus several weeks passed before he released it, with the executive summaries, by which time the impression had taken hold in the public that the report exonerated the president. The report did no such thing, but Barr had succeeded in outmaneuvering Mueller to portray it as a victory for Trump. Mueller and his team stewed in frustration, feeling “shock and anger” at Barr’s behavior. In light of the great public interest in his work and Barr’s promise of transparency about the report, Mueller had significant leverage to negotiate with Barr about the way it was released. But he didn’t even try.

As Trump begins his second term in the White House, he has taken steps to insulate himself from the scrutiny he received in his first. Pam Bondi, the former Florida attorney general who now leads the Justice Department, was a fierce critic of the Russia investigation; she even denounced Mueller and his team as “corrupt.” She almost certainly will reject any call to appoint an outsider, like a special counsel, to investigate anything about Trump that might arise. Both houses of Congress are in Republican hands, and legislators are even more deferential to Trump than their counterparts were in 2017. At least until the midterm elections, congressional oversight of the executive branch will be minimal.

But these changes pale in comparison with the Supreme Court’s transformation of the standards of presidential accountability. Everything that a president does of any importance, for good or ill, is an “official” action, and those actions are now off-limits for prosecution or even, potentially, for examination by law enforcement. This immunity would appear to extend, as Justice Sonia Sotomayor put it in her dissent, to a president who “orders the Navy’s Seal Team 6 to assassinate a political rival.” Thanks to the decision in Trump v. United States, we may have reached the end of the era of the presidential scandal investigation—though not, to be sure, of the presidential scandal.