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The Inside Story of Why Mueller Failed
Andrew Weissmann was one of Robert Mueller’s top deputies in the special counsel’s investigation of the 2016 election, and he’s about to publish the first insider account, called Where Law Ends: Inside the Mueller Investigation. The title comes from an adapted quote by the philosopher John Locke that’s inscribed on the façade of the Justice Department building in Washington, D.C.: “Wherever law ends, tyranny begins.”Weissmann offers a damning indictment of a “lawless” president and his knowing accomplices—Attorney General William Barr (portrayed as a cynical liar), congressional Republicans, criminal flunkies, Fox News. Donald Trump, he writes, is “like an animal, clawing at the world with no concept of right and wrong.” But in telling the story of the investigation and its fallout, Weissmann reserves his most painful words for the Special Counsel’s Office itself. Where Law Ends portrays a group of talented, dedicated professionals beset with internal divisions and led by a man whose code of integrity allowed their target to defy them and escape accountability.“There’s no question I was frustrated at the time,” Weissmann told me in a recent interview. “There was more that could be done that we didn’t do.” He pointed out that the special counsel’s report never arrived at the clear legal conclusions expected from an internal Justice Department document. At the same time, it lacked the explanatory power of last month’s bipartisan Senate Intelligence Committee report on the 2016 election. “Even with 1,000 pages, it was better,” Weissmann said of the Senate report. “It made judgments and calls, instead of saying, ‘You could say this and you could say that.’”The Mueller inquiry was the greatest potential check on Trump’s abuse of power. The press gives the president fits, but almost half the country chooses not to believe the news. Congress will protect Trump as long as his party controls at least one chamber. Local prosecutors and civil plaintiffs are severely limited in pursuing justice against a sitting president. Public opinion is immovably split and powerless until the next election. Only the Special Counsel’s Office—burrowing into the criminal matter of Russian interference in the 2016 election, a possible conspiracy with the Trump campaign, and the president’s subsequent attempts to block an investigation—offered the prospect of accountability for Trump. Mueller couldn’t try the president in court, let alone send him to prison, but he could fully expose Trump’s wrongdoing for a future prosecutor, using the enforceable power of a grand jury subpoena. The whole constitutional superstructure of checks and balances rested on Mueller and his team. As their work dragged on through 2017 and 2018, with flurries of indictments and plea deals but otherwise in utter silence, many Americans invested the inquiry with the outsized expectation that it would somehow bring Trump down.Suddenly, in March 2019, the Special Counsel’s Office completed its work. A report, hundreds of pages long, with many lines blacked out, was delivered to the attorney general. Before releasing it to the public, Barr pronounced the president innocent, in a brazen mix of elisions, distortions, and outright lies—for the report presented extensive evidence of cooperation between the Trump campaign and Russian assets, and of the president’s efforts to obstruct justice. The lesson Trump took from the Mueller investigation was that he could do anything he wanted. He declared himself vindicated, vowed to pursue the pursuers, and immediately turned to extorting favors for another election from another foreign country. Uproar over “Russiagate” gave way to uproar over “Ukrainegate.” The Mueller report faded away, as if it had all been for nothing.[Read: Robert Mueller and the tyranny of ‘optics’]“Had we given it our all—had we used all available tools to uncover the truth, undeterred by the onslaught of the president’s unique powers to undermine our efforts?” Weissmann writes in the introduction. “I know the hard answer to that simple question: We could have done more.” Elsewhere, he admits that, “like Congress, we were guilty of not pressing as hard as we could” for evidence. He calls a crucial passage of the Mueller report “mealymouthed”—an easy mark for Barr’s treachery. “Part of the reason the president and his enablers were able to spin the report was that we had left the playing field open for them to do so.”Weissmann, who now teaches at NYU, is a former federal prosecutor from New York, with an aggressive reputation and a precise manner. He won cases against Mafia bosses and Enron executives, served as Mueller’s general counsel at the FBI, and became the head of the Justice Department’s criminal-fraud section under President Obama. When Mueller was appointed special counsel in May 2017, he chose Weissmann to lead “Team M”—the group responsible for the case against Paul Manafort, Trump’s corrupt former campaign chairman. Theirs was the most straightforward part of the investigation; they produced an early indictment and, ultimately, a conviction of Manafort on tax fraud and other charges.Team M also came close to establishing a conspiracy between the Trump campaign and the Russian government. On August 2, 2016, Manafort dined in New York City with Konstantin Kilimnik, a Ukrainian-born business associate with ties to Russian intelligence and oligarchs. Manafort, a lavishly compensated hired gun for some of the oligarchs, had been sharing campaign strategy with Kilimnik, including sensitive polling data. Over dinner, Manafort described Trump’s strategy in four battleground states; Kilimnik in turn presented for Trump’s approval a Russian “peace plan” that would amount to the annexation of eastern Ukraine. Last month’s Senate report, going further than Team M, named Kilimnik as an actual Russian intelligence officer and revealed his likely connection to the 2016 election-interference operations. “This is what collusion looks like,” the committee’s Democratic members wrote in an appendix.In the absence of a discoverable deal between the Trump campaign and Russian assets, the number and flagrancy of contacts and the readiness of Trump and his advisers to lie about them have been too easily minimized. As Weissmann observes in Where Law Ends: “The hope of uncovering something even greater distorted the perception of what was actually brought to light.” Weissmann and his colleagues were thwarted by chance—Manafort’s No. 2, Rick Gates, arrived late for the dinner with Kilimnik and was subsequently unable to tell investigators all that was discussed. They were hamstrung by Mueller’s decision not to look into Trump’s financial dealings with Russia, which might have established a source of Russian leverage over Trump, but which the president had declared a red line not to be crossed. And they were frustrated by perjury—for Manafort never stopped lying to Team M. His lies were encouraged by the president, who made sympathetic noises about Manafort with the suggestion that stonewalling might earn him a pardon. Trump’s pardon power was an obstacle that the prosecutors didn’t anticipate and could never overcome. It kept them from being able to push uncooperative targets as hard as in an ordinary criminal case.The Special Counsel’s Office also worked under the constant threat that Trump would fire Mueller, as Richard Nixon had fired Archibald Cox, the first Watergate special prosecutor, in the Saturday Night Massacre. Trump tried several times to get rid of Mueller, but he was stopped by his underlings, who knew that it would lead to legal and political disaster. Still, the threat never went away, and in the end, it served the president’s interests well: “The specter of our being shut down exerted a kind of destabilizing pull on our decision-making process.” Where Law Ends describes numerous instances, large and small, when Mueller declined to pursue an aggressive course for fear of the reaction at the White House. For example, the special counsel shied away from subpoenaing Don Trump Jr. to testify about his notorious June 2016 meeting in Trump Tower with a Russian lawyer offering dirt on Hillary Clinton. Ivanka Trump, who didn’t attend the meeting but talked with participants afterward in the lobby, and later discussed with her father how to conceal details from the press, was never even asked to speak with Mueller’s investigators: They “feared that hauling her in for an interview would play badly to the already antagonistic right-wing press—Look how they’re roughing up the president’s daughter—and risk enraging Trump, provoking him to shut down the Special Counsel’s Office once and for all.”[Read: The president is winning his war on American institutions]Weissmann blames this persistent timidity on one of Mueller’s other top deputies, a lawyer named Aaron Zebley, comparing Zebley to George B. McClellan (and more zealous team members, including himself, to Ulysses S. Grant). “Repeatedly during our twenty-two months in operation,” Weissmann writes, “we would reach some critical juncture in our investigation only to have Aaron say that we could not take a particular action because it risked aggravating the president beyond some undefined breaking point.”Weissmann described to me this failure of nerve on Zebley’s part, an aversion to confronting the ugliness coming from Trump. I pointed out that all of these were ultimately Mueller’s decisions. Weissmann agreed.His portrait of Mueller is admiring and affectionate. The former FBI director is laconic, loyal, demanding, and, very occasionally, drily charming. Weissmann goes to great lengths to understand Mueller’s thinking on two of his central decisions: not to subpoena Trump, and not to state plainly in the report what the evidence of volume two makes clear—that Trump obstructed justice. Neither decision holds up to Weissmann’s scrutiny.On the subpoena, Weissmann told me that the reason given in the report—that the legal battle would have unduly delayed the inquiry—was less than candid, since a subpoena issued at the start of the investigation could have been resolved by the Supreme Court months before the date of the report’s completion. In Where Law Ends, Weissmann reveals that the real reason for not compelling the president to be interviewed was Mueller’s aversion to having an explosive confrontation with the White House. On the obstruction of justice, Mueller declined to make a determination because of a long-standing Justice Department policy that a sitting president cannot be indicted. Mueller, judging that Trump wouldn’t have his day in court until he became a private citizen again, refrained from stating that Trump had broken the law (even though volume one of the report explicitly cleared the president of the conspiracy charge).Weissmann politely demolishes this effort at extreme fairness. “I was flummoxed by Mueller’s thinking,” he admits. The special counsel was required to make a legal recommendation on the facts and present it in an internal department document to the attorney general. Barr could decide to keep the report private. Or, if it became public, Trump could use his unparalleled platform to defend himself to the country. Or he could choose to be charged and tried in order to clear his name. Mueller, completely out of character, was “making his own, freelance judgments about what was appropriate and not delivering on what he was tasked with doing.”Weissmann made these arguments to the lawyer whom Mueller had assigned to draft this tricky passage of the report. “I also think it seems like a transparent shell game,” Weissmann told his colleague. “When there is insufficient proof of a crime, in volume one, we say it. But when there is sufficient proof, with obstruction, we don’t say it. Who is going to be fooled by that? It’s so obvious.”By abdicating the role of prosecutor, Mueller cleared the way for Barr to take it on himself. Mueller and Barr were old friends. Several weeks before submitting the report, Weissmann writes, Mueller informed Barr of his intent to omit any legal recommendation. Barr didn’t object. Without telling Mueller, he saw a chance to disfigure the report into an exoneration of the president and thereby make its damning truths disappear. “Barr,” Weissmann writes, “had betrayed both friend and country.”[Andrew Weissmann: America’s prosecutors know what Bill Barr did was wrong]And Mueller? He was incapable of navigating the world remade by Trump. He conducted himself with scrupulous integrity and allowed his team to be intimidated by people who had no scruples at all. His deep aversion to publicity silenced him when the public badly needed clarity about the special counsel’s dense, ambiguous, at times unreadable report. His sense of fairness surrendered the facts of presidential criminality to an administration that was at war with facts. He trusted his friend Barr to play it straight, not realizing that Barr had gone crooked. He left the job of holding the president accountable to a Congress that had shown itself to be Trump’s willing accomplice. He wanted, above all, to warn the American people about foreign subversion of our democracy, while the greater subversion gathered force here at home.In our interview, I asked Weissmann if Mueller had let the American people down. “Absolutely, yep,” Weissmann said, before quickly adding: “I wouldn’t phrase it as just Mueller. I would say ‘the office.’ There are a lot of things we did well, and a lot of things we could have done better, to be diplomatic about it.”And the investigation—was it a historic missed opportunity?Weissmann’s reply was terse. “That’s fair.”With the end of the Special Counsel’s Office, the one real check on Trump’s unfettered power was gone, until the next election. Now it’s upon us, and the president remains free to repeat what worked for him in the last one.
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Viewers try to access Emmys 2020 afterparty with Jimmy Kimmel’s Zoom ID
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