True Crimes and Misdemeanors by Jeffrey Toobin

This should have been two books. The first section, as advertised in the book's subtitle, “The Investigation of Donald Trump,” is the story of Robert Mueller’s investigation and resulting report on the collusion between Russia and the Trump campaign and administration. The second section, which seems rushed and very much like a tack-on, is about Trump’s first impeachment for asking Ukraine to collude with his second campaign for president. I can see how that lens might tie the two sections together, but then why not use a subtitle that makes that connection clear? “Donald Trump and His Attempts to Collude with Foreign Governments?” Maybe that’s not as catchy?

I picked up just a few items of interest as I went through it.

Hillary’s Emails

Both as a candidate and as president, Trump frequently accused [Hillary] Clinton of deleting the emails after they were subpoenaed. In fact, shortly after she left her position as secretary of state, her aides went through her emails, which totaled about sixty thousand, and found approximately half were work related and half were personal. The half that were related to her job as secretary of state were turned over to the State Department and ultimately to investigators. The other half were deleted. This all happened before she was subpoenaed.

This is actually a parenthetical comment in Toobin’s text, but it seems to give away the whole game. There apparently weren’t any missing emails -- 30,000 or otherwise. They were all either turned over to the State Department or deleted.

If You’re Listening

This references the Russian intelligence service, the GRU, hacking into U.S. political and governmental institutions, something that is regularly monitored by the U.S. Department of Justice.

The data showed that some unusual things happened on July 27, 2016. As a rule, the GRU operatives made their hacking rounds during regular business hours, but they worked late on July 27. What were they doing? On that date, the GRU opened new fronts in its data war on Hillary Clinton. First, they started spear phishing at new targets -- accounts at a domain hosted by a third-party provider used by Clinton’s personal office. In addition, they targeted more spear-phishing attacks at seventy-six email addresses at the domain for the Clinton campaign. So [DOJ prosecutor Rush] Atkinson wondered, why this burst of activity? And why these targets in particular? Why then?

The prosecutor started noodling around on the internet. What was so special about July 27? What else happened on that day? Where was Donald Trump? As it turned out, he was at his golf club in Doral, Florida. He had a press conference that morning. What did he say? “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing,” Trump said, referring to emails Clinton had deleted from the private account she had used when she was secretary of state. “I think you will probably be rewarded mightily by our press.”

Wait. What?

Atkinson started looking at the timing and time zones. Trump’s press conference started at 10:30 a.m. eastern time. That was toward the end of the working day in Moscow, where the GRU hacking units were located. He checked. He double-checked. But the times lined up. It was possible Russia was listening and took up Trump’s invitation right away.

Yes. I guess they were listening.

The Narcissist and His Thrall

I found this anecdote about Michael Cohen, Trump’s erstwhile lawyer and fixer, revealing.

In the decade before Trump became president, Cohen used intimidation, threats, and bluster to do his bidding. He frequently dealt with the press. On one oft-recounted occasion, Tim Mak, then a reporter for The Daily Beast, asked Cohen about the allegation by Trump’s first wife, Ivana, which she later recanted, that Trump had raped her. Cohen told Mak, “I’m warning you, tread very fucking lightly, because what I’m going to do to you is going to be fucking disgusting.” Cohen earned a reputation for extreme devotion, even sycophancy, toward Trump, who repaid him, on occasion, with disdain. In 2009, when Trump was dissatisfied with Cohen’s performance, he cut his salary from $400,000 per year to $200,000. (Two years later, he restored the salary.) Notwithstanding the slights, Cohen remained loyal to Trump. As he told me, “I actually enjoyed him, interestingly enough. When he’s good, he’s great. When he’s horrible, he’s the worst human being on the planet. I mean it. He has no heart and no soul when he’s mean.”

It is, in so many ways, indicative of the narcissist and the people who willingly enthrall themselves to them. Please, please love me. 

Gnarled, Legalistic Prose

Let me end on this.

Still, that left Mueller with a dilemma. There was clear evidence that Trump did commit crimes. What should Mueller say about that? He decided to lay out the evidence but reach no conclusion about it. This judgment was announced in what became the most famous (and infamous) paragraph of the Mueller Report:

“Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President’s conduct. The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, 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.”

It takes multiple readings to make sense of the gnarled, legalistic prose of this paragraph. We can investigate the President, but we can’t prosecute the President. If our investigation determined that he was in the clear, we’d say that -- but we’re not saying that. Nor are we saying that he’s guilty of anything. So we’re not saying he’s guilty -- but we’re not saying he’s innocent, either. Basically.

Nothing in Mueller’s mandate required him to reach such a baffling and inconclusive conclusion about the most important issue before him. He was a prosecutor. A prosecutor’s job is to determine whether the evidence is sufficient to bring cases. In this unique situation, the OLC opinion prohibited Mueller from actually bringing a case, but Mueller gave Trump an unnecessary second benefit from the OLC opinion. The first benefit was not prosecuting him; that was mandatory. But the second benefit was not even saying whether the evidence supported a prosecution; that was simply a gift to Trump. In Mueller’s reasoning, a federal prosecutor could neither prosecute the president nor say whether he should be prosecuted, which in this case placed Trump effectively above the law. And Mueller expressed this tortured, overthought conclusion in such confusing language that most mortals could not understand what he had done at all. Sadly, the bewildering denouement undermined the extraordinary, meticulous, and fair-minded work of his staff in building the obstruction of justice case against Trump in the first place.

Mueller’s compromise had another ill effect. Because the language in the report was so complicated and difficult to parse, it opened the door for his work to be misrepresented by partisans acting in bad faith -- like, for example, the attorney general of the United States.

I remember those days. It was painful to watch -- Mueller speaking before Congress in words, if anything, even more convoluted than those contained in his report. He was a patsy, evidently not up to the moment that history had placed before him. It reminds me very much of the saying that it is the good men who end up doing the most harm in the world.

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This post appeared on Eric Lanke's blog, an association executive and author. You can contact him at eric.lanke@gmail.com.