We have a big day ahead of us tomorrow. The Justice Department will release a redacted version of Mueller’s report in the morning and we can expect to be inundated with analyses from legal and political observers who’ve been feverishly anticipating this moment. It is, indeed, the highest profile investigation in decades.
We’ll have a roundup of the best reads in Friday’s edition of our newly launched CAFE Brief newsletter, and of course, a special episode of Stay Tuned, where my CAFE Insider co-host Anne Milgram will join me as a guest. Insiders will have access to our extended analysis, and the plan is to post our conversation by Friday morning at the latest. I preview the report and what I’ll be looking for in a special recording I taped earlier today; that will be available at the usual time Stay Tuned is posted on Thursday mornings. So, be sure to check your feeds, and get your questions ready for Monday’s Insider episode.
Here are some of the things I’ll be looking for when reading the report:
As a preliminary matter, let’s recall what the Special Counsel regulations require. The statute, 28 CFR 600.8(c), states the report must include an explanation of the Special Counsel’s “prosecution or declination decisions.”
We already know substantial information about Mueller’s prosecution decisions from his public filings on Michael Flynn, Paul Manafort, Rick Gates, George Papadopoulos, Michael Cohen, Roger Stone, and various other individuals and entities, including Russian nationals, all of whom have been indicted or convicted. We are likely to learn more about how the facts revealed in these filings relate to the big picture – the overarching investigation into Russia’s efforts to influence the 2016 presidential election and any links to Trump’s campaign.
The more interesting question concerns the individuals Mueller declined to prosecute. These bits will likely be redacted due to the DOJ’s long-standing policy of not disclosing derogatory information about people it doesn’t charge. Expect fights over the extent to which this policy should apply to Mueller’s investigation since the policy was conceived for a criminal, not a counterintelligence, context. Most significant here will be the extent to which Mueller considered Trump’s various red flag actions from a prosecutorial standpoint.
It’s also possible that the report sheds some light on the investigations Mueller started and passed off to U.S. Attorney Offices in D.C., Virginia, and New York. Of course, Mueller sleuths will be hard at work, reading the tea leaves scattered in footnotes and formulating theories on what lies behind all the black ink of the redactions. Before excavating the report for its nuances, it may be most helpful to begin with reading any summaries Mueller’s team prepared, and looking for the full sentences of the fragments excerpted by Attorney General Bill Barr in his letter on Mueller’s principal conclusions.
And here are some other questions I’ll be thinking about as I read the report: To whom did Mueller intend to punt the question on obstruction? How close a call was it? Was there any evidence on conspiracy, even if it didn’t rise to the level of criminality? How narrowly drawn are the redactions? How faithful was Bill Barr’s summary to the report? Who talked, and can we identify them? And overall, what is the style and tone of the report?
Trump’s political rivals are no doubt gearing up for any information that could help them dethrone him. Meanwhile, the White House is preparing its own counter-report and the president and his posse are sure to continue their attacks. Rather than fall prey to political posturing from either side, I urge you to read the report for yourselves and first form your own conclusions, keeping in mind some of the principles we’ve discussed in this newsletter, on the CAFE Insider podcast, and in this guide from the team at Lawfare.
THE FACT OF UNCERTAINTY
It’s important to remember that even the fully unredacted Mueller report is limited in what it can tell us about “what happened.” Uncertainty is part of life and in some ways, it’s what makes life interesting. Let’s remember this as the fights unfold in the coming weeks and months over the extent of redactions to the report.
Here at CAFE Insider we typically talk about laws governing human conduct – not forces of nature – but it is often worthwhile to consider the wisdom other disciplines offer on how we live our lives. Here’s what the Nobel Prize-winning theoretical physicist Richard Feynman, perhaps the 20th century’s greatest investigator, said about uncertainty in his 1956 talk at Caltech:
It is imperative in science to doubt; it is absolutely necessary, for progress in science, to have uncertainty as a fundamental part of your inner nature. To make progress in understanding, we must remain modest and allow that we do not know. Nothing is certain or proved beyond all doubt. You investigate for curiosity, because it is unknown, not because you know the answer. And as you develop more information in the sciences, it is not that you are finding out the truth, but that you are finding out that this or that is more or less likely.
That is, if we investigate further, we find that the statements of science are not of what is true and what is not true, but statements of what is known to different degrees of certainty: “It is very much more likely that so and so is true than that it is not true”; or “such and such is almost certain but there is still a little bit of doubt”; or – at the other extreme – “well, we really don’t know.” Every one of the concepts of science is on a scale graduated somewhere between, but at neither end of, absolute falsity or absolute truth.
It is necessary, I believe, to accept this idea, not only for science, but also for other things; it is of great value to acknowledge ignorance. It is a fact that when we make decisions in our life we don’t necessarily know that we are making them correctly; we only think that we are doing the best we can – and that is what we should do.
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“SPYING” & LYING
Takeaways from Episode 21 of CAFE Insider:
Julian Assange’s extradition to the U.S. — Don’t hold your breath: Following the arrest last week in U.K. of WikiLeaks founder Julian Assange, federal prosecutors in the Eastern District of Virginia unsealed his indictment on a single count of Conspiracy to Commit a Computer Intrusion. Assange is fighting extradition and his hearing is currently scheduled to take place on May 2 at Westminster Magistrates Court in London. The extradition process usually takes years, and if the Justice Department intends to bring additional charges, the process could be further delayed. That’s because typically, a country will not extradite an individual until all crimes that individual will be charged with are brought. Thus it is unlikely that we’ll see Assange on U.S. soil any time soon.
Former White House counsel Greg Craig’s indictment & equal justice under law: The indictment of former Obama White House Counsel Greg Craig, a case started by Mueller that the U.S. Attorney in D.C. is now handling, shows that contrary to the president’s assertions, the Justice Department acts free of politics. Some Trump supporters are celebrating the fact that someone associated with Obama and the Clintons has been indicted, conveniently forgetting that the conduct for which Craig is charged took place years after he served in the Obama administration, and in fact, bears a closer connection to Trump given that the case arises out of the unregistered lobbying work Craig did with Paul Manafort for Ukraine’s pro-Russia political party.
President Trump’s plan to send migrants to Sanctuary Cities is simply silly: President Trump has confirmed reports that his administration is considering sending detained migrants into sanctuary cities in an attempt at political retaliation. The plan makes little sense and goes against the policy and legal guidance of lawyers at Immigration and Customs Enforcement (ICE). Releasing migrants into the cities that will welcome them goes against the president’s recurring arguments that asylum seekers are dangerous criminals. Moreover, once released in a sanctuary city, there’s nothing stopping the migrants from going anywhere within the U.S. The policy could also incentivize more people to cross the border illegally. The intent behind the plan (scoring political points) lacks a mission-related purpose for Department of Homeland Security and would also likely run afoul of the migrants’ rights to due process. The Supreme Court has consistently held that once a person enters the U.S., the Due Process Clause applies irrespective of whether their presence is lawful or unlawful.
If you haven’t already, listen to “‘Spying’ & Lying”
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These are some of the Twitter accounts we’ll be following for analysis of and reactions to the Mueller report:
Joyce White Vance, former US Attorney, Northern District of Alabama: @JoyceWhiteVance
Ben Wittes, Editor-in-Chief, Lawfare: @
Susan Hennessey, Exec Editor, Lawfare & former attorney in NSA’s Office of General Counsel : @Susan_Hennessey
Walter Dellinger, former Assistant Attorney General and acting Solicitor General: @walterdellinger
Natasha Bertrand, National Security Correspondent, Politico: @NatashaBertrand
Elie Honig, former federal and state prosecutor, SDNY: @eliehonig
Mimi Rocah, former federal prosecutor, SDNY: @Mimirocah1
Nate Silver, Editor-in-Chief, FiveThirtyEig
Maggie Haberman, White House Correspondent, NYT: @maggieNYT
David Frum, Senior Editor, The Atlantic: @
Garry Kasparov, Chairman of Human Rights Foundation: @Kasparov63
That’s it for this week. We hope you’re enjoying CAFE Insider. Please send us your suggestions and questions at [email protected].
– Tamara Sepper and the CAFE Team (Julia Doyle, Calvin Lord, and Vinay Basti)