Evidence of Absence Is Incompatible With Obstruction

The Mueller Report was released (with redactions) on Thursday. Although the “collusion” portion of the report is framed, as is the case with most decisions not to prosecute, in terms of absence of evidence to meet a burden of proof, the thoroughness of the investigation and the findings come as close to providing evidence of absence as one is ever likely to find. Most telling was the conclusion that although the Russians made numerous attempts at gaining access to Trump and Trump personnel, these attempts were uniformly rebuffed.

Yet like the dog returning to its vomit–again and again and again–the media cannot resist parts of the Mueller report that keep the collusion dream alive. Like this piece in Bloomberg (which has been particularly insane in its post-Mueller coverage). They fail to realize that this story (and others like it) completely demolishes the entire idea of pre-election collusion. If Putin was in cahoots with Trump or his minions before 8 November, he would have had no need to use oligarchs–or anybody else–to try to establish connections with Trump’s people after 8 November. Yet people who were (are!) willing to believe baroque and convoluted theories like the one in which Trump was communicating with the Russians via an Alfa Bank server (to name just one) don’t see how ludicrous these theories are in light of Putin’s obviously desperate attempts to make contact after Trump’s surprising election. So surprising that Putin was clearly caught off-guard and unprepared and completely without connections with the incoming administration.

It is particularly delicious that the Russian billionaire featured prominently in the report (and the Bloomberg article)–Petr Aven–controlled Alfa Bank. So Alfa Bank was supposedly the portal between Putin and Trump which they used to coordinate their dastardly deeds but months later Putin sent the man in charge of Alfa Bank to open communications with Trump–and he fails!

Yeah. Makes total sense!

One wonders when Mueller realized that there was no there there. None whatsoever. I suspect he realized it very early on, but was loath to admit it. If this is so, his extension of the investigation to this late date–and well past the midterm elections–inflicted grave injury on the country, and makes Mueller a figure of infamy deserving severe obloquy.

It is against background that one must evaluate the second portion of Mueller’s report, relating to obstruction. Put aside the Constitutional issues raised by the fact that several of the theories of obstruction involve Trump’s exercise of his presidential powers (firing Comey, requesting that Sessions unrecuse himself, discussing using the pardon power), and others involve the ability of the president to fire an inferior official (which just points out the Constitutional anomalies of special counsels): firing Mueller would have been a blunder, rather than a crime, and Trump was indeed fortunate that he was talked out of it.

No, think of how you would have reacted if you had been subjected to a Kafkaesque investigation into something that you knew was complete and utter bullshit–and bullshit that had been concocted by your political enemies who were dead set on rationalizing–and avenging–their loss to you. I think you would be outraged, and feel completely justified in fighting back by whatever means necessary. I think any normal person would be. And heaven knows, Donald Trump is not normal. If he were, he wouldn’t be president. So of course he said intemperate things and contemplated intemperate actions and no doubt felt perfectly justified in his intemperateness–yet in the end did not take these actions.

Anybody who harrumphs at this–and yeah, I’m looking at you, Mitt–is irredeemably partisan, or not a serious person, or is completely incapable of realistically appraising how he or she would react if in another’s shoes. There are those who attempt to obstruct investigations because they know they are guilty, and there are those who fight investigations that they believe to be unjust. Mueller strained every nerve, tried out every possible legal theory, and left no stone unturned in his attempt to demonstrate illicit dealings, and admitted abject failure. This failure validates Trumps belief that the investigation was a travesty that never should have taken place, and puts his reaction in the second category rather than the first. The excesses are typically Trumpian ones.

That is, the evidence of absence of collusion completely undermines assertions of obstruction, given that obstruction requires mens rea. F. Scott Fitzgerald wrote “The test of a first-rate intelligence is the ability to hold two opposed ideas in mind at the same time and still retain the ability to function.” Finding Trump innocent (not just not guilty, but innocent) of collusion or conspiracy yet believing that he might have obstructed justice makes Mueller a genius, by the Fitzgerald standard. These are utterly opposed ideas.

Such geniuses the Republic can live without.

I would like to say that Mueller did Trump–and the country–a favor by proving him innocent of illicit dealings with Russia far more convincingly than Trump ever could have himself. To be found not culpable by people who are almost certainly your enemies and who desperately want to hang something on you is as close to vindication as you can get.

But facts don’t matter. Russia was just a pretext, a dog to tree Trump with. If that dog won’t hunt, his enemies will find another. And another. And another.

This is a power struggle, pure and simple. Meaning that Trump has to take that fight to his enemies. And the best way to do that is to attack legally the apparatchiks–the Brennans and Comeys and Clappers and those still in the bureaucracy–who unleashed the Russia collusion hound. And after that, to go after their political masters.

This is war to the knife. Trump has warded off the attacks so far, and almost miraculously survived. He can’t count on such luck continuing, especially since defeat will only spur his enemies to greater efforts. He has to be the attacker now.