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Michael A. Cohen

The case for impeachment begins here

Special counsel Robert Mueller cited a previous Justice Department policy that said a president can’t be indicted, in his decision making .
Special counsel Robert Mueller cited a previous Justice Department policy that said a president can’t be indicted, in his decision making . (Anush Elbakyan/Globe Staff)

After a quick perusal of the more than 400-page Mueller report, here are a few key takeaways.

Two things clearly stand out. First, while the Trump campaign did not directly conspire with the Russian government to interfere in the 2016 presidential election, the evidence of implicit cooperation and shared interests between the campaign and the Russian government is overwhelming. Second, Mueller has laid out clear and unambiguous evidence that the president attempted, on repeated occasions, to interfere with the Russia investigation and obstruct justice.

Contrary to the summary provided by Attorney General William Barr, the Mueller team isn’t exonerating Trump on the issue of obstruction; indeed, it seems implicitly clear that they believe the president broke the law. The key passage in the report is the one in which Mueller’s team states that they “determined not to make a traditional prosecutorial judgment” and did so because of the Department of Justice regulations forbidding an indictment or criminal prosecution of a sitting president. As a result, the special counsel “did not draw ultimate conclusions about the president’s actions.”

However, as the report also states, “If we had confidence after a thorough investigation of the facts that the President did not commit obstruction of justice, we would so state.” Mueller seems to be taking the view that (a) it’s not his place to pass judgment on whether the president engaged in criminal wrongdoing, (b) it’s up to Congress to make that determination, and (c) the evidence his team assembled suggests that the president did in fact obstruct justice.

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Taking that into account puts the report’s discussion of obstruction into an interesting light. In the section that examines this question, Mueller’s team lays out the evidence that Trump interfered with the investigation and then offers a view on the president’s “intent,” which is crucial to any obstruction prosecution. What Mueller appears to be doing is laying out a road map for Congress if it decides to begin impeachment proceedings. Rather than exonerate Trump, Mueller’s team has, in effect, handed to Congress the means by which to remove him from office.

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On the question of collusion, it’s far from clear that the president is off the hook — at least politically. While Mueller does not determine that collusion took place, what he lays out is nearly as damning. Inside the Trump campaign, writes Mueller, “aides reacted with enthusiasm to report of the hacks” of the Democratic National Committee and e-mails from the Hillary Clinton campaign. Trump personally “discussed the possibility of upcoming releases” from WikiLeaks; wanted to be kept updated on further leaks; told aides that “more releases of damaging information would be coming”; and that the campaign “was planning a communications strategy based on the possible release of Clinton e-mail by WikiLeaks.” Much of this section is redacted, so there may be even more damning information in the report than we’ve seen. But what we know is plenty bad. The Trump team knew about Russian interference; had advance knowledge of it; sought to profit directly from it, and had the same goals as a foreign power intent on interfering in a US election. This might not be a crime, but it feels traitorous.

There’s also the fact that campaign manager, Paul Manafort, turned over polling data and other information about key swing states in the election to a Russian intelligence agent. How this is not evidence of collusion between the campaign and Russian officials is hard to figure.

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We know that the president lies a lot. But the extent to which he — and his staff — actively misled the American people, as laid out in the report, is stunning. Trump rewrote the White House statement on the infamous Trump Tower meeting to omit the fact that it was about getting information on the Clinton campaign. He lied repeatedly about the reasons why why former national security advisor Mike Flynn and former FBI director James Comey were fired. He lied about his discussions with Comey and media reports that he had requested loyalty from him.

Deputy National Security Adviser K.T. McFarland was asked to lie to a Washington Post reporter about the contact between Flynn and the Russian ambassador to the United States (a fact that she admitted to in the report). The director of national intelligence, Dan Coats, lied to the special counsel and Congress about his conversations with Trump. The White House press secretary, Sarah Sanders, lied when she said that rank-and-file FBI agents had communicated to her their support for the firing of Comey — and admitted as much to Mueller’s investigators. And on and on. Again, while this is not surprising, it’s still shocking to see how regularly Trump and those around him don’t tell the truth. It’s something worth keeping in mind as the White House seeks to rebut the conclusions of the Mueller report.

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Along these same lines: US Attorney General William Barr is a big liar. There’s going to be a lot of talk about impeaching Trump in the days and weeks to come, but let’s start with impeaching Barr.

Last month, he put out that infamous four-page summary of the Mueller report in which he exonerated the president on collusion with Russia and largely cleared him of wrongdoing on obstruction of justice. Barr suggested that the Department of Justice prohibition on indicting and prosecuting a sitting president did not play a role in Mueller’s decision-making on the obstruction question. It turns out that was untrue. If anything, the DOJ prohibition was the singular factor that prevented Mueller from making a determination on whether the president obstructed justice.

Earlier on Thursday morning, Barr gave a bizarre and unseemly press conference in which he repeated the words “no collusion” about a half-dozen times and suggested that any evidence of obstruction of justice in the report was mitigated by the president’s “sincere” frustration over the Russia investigation. That is a brazenly misleading characterization of what the report says. It now seems more clear than ever that Barr is acting not as the nation’s top law enforcement official, but rather as the president’s public relations point man. From the beginning, Barr has sought to present the Mueller report in the best possible light – and in the process he’s lit on fire his own reputation and that of the agency he runs. He needs to go.

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One of the most interesting things about the report is how much of it will seem familiar because we’ve already read many of these stories in journalistic coverage of the Russia investigation. For all the White House’s claims of “Fake News,” the biggest takeaway from the report is that virtually everything that the media reported on the Russia investigation was correct.

So where does this leave us? The ball is now in Congress’s court, and to my mind the path forward is clear: Impeachment proceedings must begin. The evidence is overwhelming that the president not only has regularly broken the law but that he has no understanding of the limits of his own power.

One point that keeps coming up in the section on obstruction is that the president consistently endeavored to obstruct and interfere with the Russia investigation and the only thing that prevented him from being successful were his aides not wanting to be complicit in his law-breaking.

Trump tried repeatedly to fire Mueller (and was thwarted by his counsel, Don McGahn). He tried to get government officials, including his own staff, to slow down the investigation or put out false stories that would minimize his obstruction efforts. He put on a charm offensive with Comey to “go easy” on Mike Flynn and clear him of wrongdoing. He railed against Sessions for recusing himself and failing to protect the president.

If you can say positive thing about Trump’s White House, it is that so many of his aides were unwilling to break the law on his behalf. But that doesn’t obviate the fact that the president doesn’t adhere to legal or normative guardrails when it comes to exercising presidential power. He will continue to push the envelope into unchartered law-breaking territory unless someone holds him accountable. Right now, the only institution that can do that is Congress. It doesn’t have any other option. To refuse to hold a president who has so clearly committed broken the law accountable would be a fundamental abdication of Congress’s oversight responsibilities.


Michael A. Cohen’s column appears regularly in the Globe. Follow him on Twitter @speechboy71.