#157 — What Does the Mueller Report Really Say？
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Summary
Benjamin Wittes is a senior fellow in Governance Studies at the Brookings Institution, and a co-founder of the Lawfare blog, which is a great source of unbiased information on U.S. national security and law. In this episode, he talks about his legal and political interests, why he co-founded Lawfare, and why he thinks the Mueller report should be looked at as a cautionary tale about what's to come in the Russia investigation. He also discusses his political leanings, and how he and his co-founders came to create the site in the first place. And he explains why the site is important to him and why it should be important to the rest of the law-making process. We don t run ads on the podcast and therefore, therefore, are made possible entirely through the support of our subscribers. If you enjoy what we're doing here, please consider becoming a supporter of the podcast by becoming a subscriber. You'll get access to all sorts of great shows and resources, including The Making Sense Podcast, wherever you get your podcasts. Thanks for listening! Sam Harris and the Making Sense Team at The Huffington Post Make Sense Podcast Subscribe to the podcast and let us know what you think of what you're listening to and what you'd like to hear in the future episodes of The MNING SENSE Podcast! - Sam Harris & the MONEY MADE Sense Podcast. Thank you, - Yours Truly, Cheers, Jon Sorrentino Jon M. Harris Jonathan M. Miller Music: "Mr. - "The Good, the Bad, The Bad, the Good, The Ugly, The Good, and The Upright, the Upray, and the Good Stuff" - "Goodbye" - "Good Morning, Good Morning, Myself, and Goodbye, My Dear Friend" - by Mr. John R. Williams -- by SONGS: by -- "Alyssa and Mr. Tom & Mr. James R. Smith (feat. ) Thank You, Mr. Ben J. (Apostor & ? , "Apostponing Me? ) - "Let's Talk About This?" -- "Thank You, My Thoughts & Good Morning & Good Night, Good Luck, Thank You? " --
Transcript
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Benjamin is a legal journalist who's a senior fellow in governance studies at the
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Brookings Institution, and he's a co-founder of the Lawfare blog, which is a great source
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of unbiased information on U.S. national security and law.
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And I brought him on to do a post-mortem on the Mueller report.
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Seems to me the public understanding of what's in that report is fairly distorted by politics,
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so I wanted Benjamin to walk me through it, and if nothing else, I think you'll find this
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a very useful analysis of what Mueller found and what any reasonable person should believe
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Mueller may one day testify in Congress, but his findings in the report are remarkably clear
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I discovered you, as many people have, on your fantastic blog, dealing with all things
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legal, the Lawfare blog, and I'm hoping we're going to do a very accessible and fairly comprehensive,
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at least up to the moment, autopsy on the Mueller report.
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But before we dive into the matter at hand, how did you get to focus on what you have now
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Yeah, so I have a weird history, which is that I am not a lawyer, contrary to a lot of
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I'm a sort of legal journalist by background, and I wrote the Washington Post's legal affairs
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editorials for nine or ten years, including the period starting just before the Clinton
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impeachment through 9-11 and the period after that up through 2006 when I left.
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And during that period, I had always had an interest in the sort of law of national security
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dating back from before my Washington Post days.
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But during that period, for reasons that are probably pretty obvious, I became much more
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And I left at the beginning of 2007 to come to Brookings and focus on a book I wanted to write
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And Lawfare developed a few years later, I guess in the fall of 2010.
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And by that time, this set of subjects was essentially all of what I worked on.
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And with a few narrow exceptions, it was really, that was my career by that point.
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And so over time, Lawfare has just been kind of the project that, you know, bit me in the
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Well, it's easy to see why it hasn't let go, because it's such a wonderful sanity check
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for many of us who just need to figure out what is, what end is up in these matters.
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How would you describe your own political leanings?
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I mean, when Lawfare was founded, I think most people regarded us as, and there were only
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three of us who wrote it at the time, most people regarded us as the sort of respectable
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right flank of a lot of the issues that we wrote about.
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So we were largely writing from a point of view of trying to evaluate government policy and
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sort of be helpful to practicing lawyers in areas like detention and kind of drone strikes
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The three of us were all, you know, I think what united us was that we sort of did not
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accept kind of a lot of the sort of conventional human rights and academic orthodoxies that were
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And so we were thought of as, I guess, the right of that debate.
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That was, you know, not, that was a reductionist way to understand who we were.
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And particularly as the site grew and we started adding other people, we were always politically
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diverse and we really tried to, I don't think you will find a more exquisitely bipartisan or
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nonpartisan masthead in American life and letters than Lawfare.
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Where my own, so, so I, I mean, the site doesn't have any positions.
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It does have a group of people who have very, you know, different attitudes toward a lot of
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I would describe my personal politics as quite centrist, at least until the, the politics
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of the country shifted very dramatically, very suddenly.
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And now I, I suppose I've had a political orientation kind of forced upon me by the circumstances
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in that I, I am very alarmed by the incumbent president and, and I am opposed to what Donald
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And in that sense, at a, at a very personal level, I have sort of taken the view that,
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that in a two party system, if one really is alarmed by the behavior of one of the parties,
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one doesn't really have much choice but to support the other.
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That said, that is my personal view, not the institutional view of Lawfare.
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So I, I'm hoping that the conversation we produce here will be of interest and perhaps even
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persuasive to people who are not nearly as critical of the president as I am.
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By the way, can I, can I just say that that is the ambition of Lawfare in general that, you
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know, I want, and, and has been since long before Donald Trump, when I, when we started it
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and we were writing stuff about, you know, Guantanamo litigation, my ambition for the
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site at the time was that it should be as useful to the lawyers who represent the Guantanamo
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detainees as it is for the government lawyers on the other side.
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And it should be as useful to people who disagree with me on the merits of certain things as who
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I mean, we do a lot of stuff that, you know, the goal of which is to be useful to whoever
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is working on these issues or thinking about them or trying to understand them, irrespective
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of whether they agree with the author in question or agree with me more particularly.
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Well, as we both know, that's easier said than done, especially in this case.
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I mean, I just find, you know, I have been accused of having a whopping case of Trump
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derangement syndrome and, you know, I really haven't been shy about expressing my antipathy
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And I mean, antipathy is not too strong a word.
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I mean, he embodies almost everything that I find detestable in other people.
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I might be advertising myself as a candidate for a Freudian case study, but I find it a continual
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source of shock that half of the country isn't appalled by what this man says and does, mostly
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So I want to, you know, just bracket that and I want us to be careful in just talking
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about what we think is objectively true here and what happened, what the Mueller report
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attests to and what it suggests about Trump and what we, you know, those of us who are
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concerned about his tenure and wanted to end in 2020, what we should do and say about all
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I guess I want to start with, before we get into what is in the report, I want to see if
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you share my sense of how badly the release of it was handled, at least for those of us
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What are your thoughts on how this was dropped and the amount of time the president and his
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surrogates had to spin their, what I think will prove a false interpretation of its contents?
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And let me, let's try to break out at least three and maybe four discrete aspects of the
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release, because I think the merits of them are quite different.
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So the one on which I think Bill Barr is taking a bad rap is his handling of the redactions
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and the amount of time between when he received the document and when he made the release.
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And, you know, a 400 plus page document that has to be reviewed for a bunch of different
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government equities that may produce redactions, that is a labor intensive process.
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And I don't think that a three week, almost four week lag from his first seeing the document
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Nor do I think actually that the substance of the redactions for all that a lot of Democrats
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And I think he did a reasonably creditable job of saying, here's what I'm going to do.
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And then doing more or less what he said he was going to do.
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And the result was a document that we can all read.
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There are some frustrating redactions in there.
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There are some ones that are probably a little too aggressive in certain areas.
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But by and large, everybody knows more or less what Bob Mueller found.
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And I, by and large, do not have a serious complaint about the way Barr handled the logistics
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and mechanics of the review and redaction process itself.
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The second question is, and I'm doing these in ascending order of what I think of as outrageousness,
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is the letter that he wrote two days after he'd received the document.
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And I think for anybody who hasn't read the piece that Charlie Savage wrote in the New York
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Times that actually shows the full quotation of every quote from the report that Barr put
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in that letter, I think it is very hard to excuse the degree of distortion that arose from
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And I do think that letter was substantively distortive of Mueller's meaning, and I therefore
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was not at all surprised that Mueller complained of exactly that in his letter to Barr.
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And so I think, you know, if you're going to take three weeks to release the document,
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which I think is reasonable, it pays not to have distorted its meaning in advance of those
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three weeks, so that the president then has this long period of time to trumpet what turns out
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to be at least a complicated and, in some important respects, a kind of false narrative
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And I think Barr bears a lot of responsibility for that.
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The third area, which I think is arguably even worse, is the contents of his press conference
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And in that press conference, he repeatedly used terms that are, you know, simply presidential
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talking points, not, by the way, legal talking points, but actual, like, historical talking
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So to say, for the attorney general to say repeatedly that Mueller found no collusion is, you know,
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an appropriate thing for, I suppose, for a spin doctor to do on Fox News, but it is not
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an appropriate thing for the attorney general to do from the Great Hall of the Justice Department.
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And it's really, you know, an exercise in messaging that I think was, you know, beneath the dignity
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of the Justice Department and certainly should have been beneath Barr's personal dignity.
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So I think, you know, I think there was, I, by and large, agree with you that the rollout
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I just think that some of the, some of the criticism of it focuses on what, for me, are
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Well, we'll talk about conspiracy versus collusion once we get into the body of the report.
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I just, one other kind of framing effect, which I think has had significant consequences and
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it really shouldn't have is undoubtedly there were some people who had false expectations
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But it seems to me much more of a case of Trump and his supporters spreading falsehoods
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about what most people's expectations actually were, right?
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So it's like the fact that Trump isn't being led away in an orange jumpsuit as a result of
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this report or the fact that conspiracy wasn't proven, right?
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The fact that, that we don't have proof that Trump or, or people running his campaign conspired
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in advance with Russians to hack the election and, or to hack the DNC emails and to help
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I mean, that, that, that's, as much as I was hoping this report could destabilize the
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president politically, it never occurred to me that that would be what was proven there.
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So I don't know if you have any thoughts about that, but it just, a part of the spin I'm
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encountering here is this triumphal sense that we took a hard swing at the ball, we, the president's
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critics, took a hard swing at the ball and missed entirely, whereas the ball being described
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And I do, I do think that there are a few caveats that I'd add to that.
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So one of them is that, as you acknowledge, there were some people who had, frankly, delusional
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expectations of what the report was going to produce.
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And, you know, there were people who were, as recently as a few weeks ago, talking about,
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you know, will they revisit the Office of Legal Counsel opinion on whether the president
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Will they, and there were a lot of people who seemed to expect a finding on Russian electoral
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interference that very directly implicated Donald Trump in criminal activity.
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And I suppose if you're one of those people that the results of the findings of the report
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I believed it absolutely needed to be investigated.
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And I am perfectly satisfied with a finding that, you know, Russians committed criminal acts
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in hacking Democratic emails and in running a fraudulent social media campaign, and that
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individuals, when had, you know, committed criminal acts in lying to investigators, but that the
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nature of the interactions between the Russians and people associated with Donald Trump did not
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themselves amount to criminal conspiracy or other criminal activity.
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And I, if, and is not even especially surprising to me, given what we knew about, you know, given how easy it is to avoid
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entering into a conspiracy with people who are, you know, operating to some degree to your benefit and with your
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And so I, I don't find it especially surprising, unlike a lot of people in the, I don't find
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I, I think it would have been horrifying had there in fact been a criminal conspiracy.
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I would have been wanted to absolutely wanted to see it prosecuted.
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And I would have wanted, I certainly wanted the investigation to proceed to the point of
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And I think the report is immensely illuminating as to what we can as a historical matter, hold Donald Trump and the
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Well, I want to get to that because there's much more they can be held accountable for.
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And that much more was what I was anticipating would be borne out.
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Let's just give a high level snapshot of what this document is.
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So I would describe the two volumes as having four, between them, four major sets of findings.
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The first is, and these are roughly in the order that they take place in the two documents.
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The first three are all part of volume one and they go like this.
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The first is that it substantively clears the president and his people on matters concerning
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That is, the Russians ran a criminal social media operation that was a conspiracy to deprive
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the United States of regulatory authority over electoral and other matters.
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And that while people associated with the president were duped by this into engaging with the Russian
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material, nobody on the U.S. side, including nobody associated with Donald Trump, knowingly participated
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And I think we should be, all critics of Donald Trump on the left, on the right, and in the
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center should be willing to accept that at face value.
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No, it was not one that the president or his people are implicated in, except in the sense
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Let's just place a footnote here to acknowledge that many of the president's defenders, this
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perhaps true still of many, deny that the Russians did anything of substance in the 2016 election.
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And one of the things for which, you know, I hold the president accountable is his apparent
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denial of this problem and the slowness with which he acknowledged the mounting evidence.
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I mean, the president had a conversation the other day with Vladimir Putin and was asked
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afterwards whether he discussed future electoral interference with him, and he said it didn't
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So he continues to not want to face the consequences of this for his worldview with respect to Vladimir
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But that said, there's a difference between being a dupe and being a criminal.
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And I think the portrayal by Mueller of the Trump people in this section of the investigation
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They may have been foolish for engaging with social media content that they didn't, shouldn't
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He does note that no Clinton campaign people were duped by the Russian social media campaign.
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So you can say they were foolish and silly and into stuff that helped them and maybe, but
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they weren't knowingly conspiring with anybody.
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And I think that we should just take that at face value.
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So this brings me to the second one, which is the second area, which is the hacking of emails.
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And this one's much more complicated because on the one hand, there is no evidence discussed
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in the report that anybody associated with the Trump campaign was involved in a conspiracy
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And it is simply not the case that there is no evidence in this part of the report that there
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was no engagement with, knowing engagement with people who were both responsible for that hacking
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and responsible for the release of those emails.
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And I think the sort of no collusion narrative that has emerged as to this part of the report
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And so let me just tick off a few things that the report found that, you know, if I were a rhetorician,
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Right. Maybe, maybe we should distinguish between conspiracy and collusion here as well.
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Right. So look, conspiracy is a criminal offense. It's, it's written in the U.S. code. It has known
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elements and it requires that two people have an agreement as to a law that they're going to violate
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and a course of conduct that is going to violate that law and that they take overt steps to doing so.
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So if you, you know, are thinking about robbing a bank and you ask me, would you,
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you want to help me rob the bank? And I say, you know, sure.
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And then I start doing Amazon searches for your disguise, your mask or your gun.
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But if I'm aware that you're going to rob the bank and you're going to use the money from the proceeds of
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the robbery in a fashion that might help me, but I never agree to anything with you and I don't take
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affirmative steps in support of what you're doing. I'm just really pleased that you're doing it.
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What if you're at your next rally in front of tens of thousands of people watched by millions,
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you champion your friend's cause in robbing the bank?
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So, you know, there are a lot of, there are a lot of people who, you know, publicly endorse criminal
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And they do it without, I mean, think of all the people who say nice things about ISIS in public,
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right. And in publicly encourage terrorist movements to which they're sympathetic. The
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Irish Republican army had a lot of people who spoke up for it in the United States back in the day.
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Right. And as long as you keep a distance between yourself and the criminal activity of those
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organizations, you're actually not guilty of terror, of, of conspiracy to commit terrorism.
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And so here are the things. So it's really important to keep separate the question of,
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is there enough evidence that they participated in a criminal conspiracy to indict and prosecute
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people for participation in that from, did they behave in a way with respect to the Russian hacking
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that we should judge very harshly? And I think the answer, I have no reason to doubt Mueller's
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conclusion as to the legal question, but I also have no reason to doubt that a reasonable person
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reading his findings as to the substantive conduct in which they engaged should be appalled and
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disapproving and judgmental. So let me, you know, having stipulating that they did not engage in
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criminal conspiracy that one could prove to the standards of the criminal law, which is to say
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beyond prove with admissible evidence, beyond a reasonable doubt, every element of the offense.
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Let's talk about what the report found that they did do. All right. So one of them was in touch
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directly with the Guccifer II persona of the Russian intelligence, military intelligence. That's the
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group that did the hacking. There was direct contact between one member of the Trump entourage and
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and Guccifer II. They were deeply involved in sort of thinking, you know, coordinating their media
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strategies around WikiLeaks releases of the hacked emails. And they were actually in touch with WikiLeaks
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on the subject. So they weren't coordinating with the Russians about the hacking of the emails, but they
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were coordinating with WikiLeaks about the release of emails, or at least trying to. As you noted, the
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president gave a public speech in which he publicly encouraged hacking of Clinton's emails. And here's a part
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that we did not know before the release of the Mueller report, which is that right after doing so,
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and remember that the president has tried to dismiss that speech as a joke. But he immediately after
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that speech directed Michael Flynn, his then campaign national security advisor, to try to retrieve
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the emails that he was talking about in that speech, which is to say not the emails that the Russians had
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stolen, but emails that he believed had been hacked from Hillary Clinton's old private email server.
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And so this led to a sustained effort by people on the fringes of the campaign at Flynn's instigation,
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although not his direct control, to engage with Russian hackers to retrieve these mythical stolen emails. Now,
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this, of course, is not the same emails that the Russians released and actually stole. And in fact,
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there doesn't seem to be a lot of reason to debt to believe that these emails actually existed at all,
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or that the people that they got involved with were real Russian hackers. But it's fair to say that the
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effort on the part of the Trump campaign, and remember, this is all taking place around the same period of
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time that there's the Trump Tower meeting, right, where they are promised dirt on Hillary's campaign,
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and Hillary, and they respond enthusiastically to that. So it's fair to say that they were very open
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to receiving the fruits of these hacks that they went after. They encouraged the Russians to
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do this hack, to do a different hack. They went after emails that they believed to be in the possession
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of Russian hackers. And so my view is basically, if they didn't violate the law here and didn't manage
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a conspiracy, it was more out of sheer incompetence and conspiracy theorizing. They were going after
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emails that didn't exist. It wasn't because they were morally above engaging with the Russians over
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hacked emails. And so I think the picture on this one is very damaging to the president, at least if you
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bother to actually dive into what they really did. It's interesting. It's analogous to what happens
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later in the report around the crime of obstructing justice. So we'll talk about why he was not charged
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and could not be charged with that. But it was not for want of trying that he didn't get the Mueller
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investigation strangled in his crib because he kept ordering people to do things which they judged to be
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either frankly illegal or not sane. And so it was just, it was really, it was a kind of a halo of
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insubordination that surrounded the president where he would give orders that were not followed. And it's
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only because they weren't followed that he hasn't been, well, I mean, it turns out he couldn't be on
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Mueller's analysis convicted of any crime while in office. But we would be talking about, you know,
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laws being broken had people obeyed his edicts. Yeah. And we'll, I mean, we'll get to that when
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we talk about obstruction. I actually think on the obstruction stuff, the evidence of actual
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criminality is, is pretty overwhelming. But I agree with you to the extent it's not even more
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overwhelming. It's because a lot of things that were demanded to happen by the president were not
00:31:49.380
carried out. And that actually does mitigate to some degree the obstructive outcome, although not
00:31:57.760
the obstructive behavior. Yeah. So the third area, before we get to obstruction though, the third area
00:32:04.440
is what to me is the most dramatic, which is this, or the most dramatic on the, on, in the volume one
00:32:12.380
set, which is this hundred plus pages of description of the contacts between Russians' government
00:32:22.160
officials and their intermediaries and people associated with Donald Trump in the period around
00:32:29.420
the campaign and the transition. And of course, the background to this is that Trump was saying at
00:32:35.880
this time to anybody who will listen, I have nothing to do with Russia, right? And he had any way of,
00:32:42.160
any number of ways of denying that his campaign had contacts with, with the Russians or, and of
00:32:49.540
course the press has revealed a lot of these contacts in the past. And so the fact that they took place
00:32:55.880
is not a particular surprise. The exhaustive catalog of them is truly astonishing. And, you know, we can go
00:33:05.220
into them in more detail, but it takes literally a hundred plus pages to describe them all. And what
00:33:13.260
Mueller finds is that neither individually nor collectively do they amount to a conspiracy, to
00:33:22.400
this joint meeting of the minds as to a criminal purpose and that conspiracy law requires. And so
00:33:32.140
therefore, though you have this incredibly suspicious pattern of conduct and contacts,
00:33:39.520
and some of which are really weird, there's no, it does not overcome the requirement of conspiracy
00:33:47.980
law that there be some, you know, agreement toward an illegal purpose and overt actions in support of
00:33:56.040
that. So, you know, again, one can say, well, therefore he's been cleared of collusion, or one could say
00:34:03.500
that the pattern of behavior that Mueller documents is bizarre, concerning from a counterintelligence and,
00:34:14.520
and potential, you know, questions of what the Russians, what leverage they might have on him, et cetera,
00:34:21.880
but does not, you know, does not obviously violate any particular set of criminal laws. And so I think
00:34:29.240
that's the sort of third big basket that volume one of the document reflects. Yeah. And now volume two.
00:34:38.900
All right. So volume two is where the most obvious criminality is.
00:34:43.600
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