Jurisprudence

What Happened While We Were Waiting for the Mueller Report

The focus on the report has distracted us from the reality in plain sight.

Donald Trump with his eyes lowered.
Donald Trump in the Roosevelt Room at the White House on Friday.
Nicholas Kamm/AFP/Getty Images

Last week, Donald Trump allegedly instructed Kevin McAleenan, the border enforcement official he was about to tap as the new head of the Department of Homeland Security, to close the Southwestern border to migrants. This directive came with the promise that Trump would pardon McAleenan if there was legal fallout from that action. The comments, which CNN characterized as a possible joke, alarmed DHS officials, though the White House later denied that the statements were made. But we are waiting to hear Robert Mueller’s assessment about whether Donald Trump has obstructed justice.

Last week, Donald Trump said, “I know nothing about WikiLeaks. It’s not my thing.” And yet, throughout the end of the 2016 campaign, he praised the operation as something he “loved,” despite having been warned not to trust information coming from an entity that was known to be willfully assisting attempts to steal the U.S. election. But we are waiting to hear from Robert Mueller about whether Donald Trump has “colluded” with foreign powers in the 2016 election.

Last week, we learned Donald Trump’s sister Judge Maryanne Trump Barry apparently left her seat on the 3rd U.S. Circuit Court of Appeals, thus permanently ending a judicial ethics investigation into whether she was involved in a massive tax evasion scheme reported last year by the New York Times. A complaint seeking to determine whether the scheme was a tax dodge—from which both Barry and Donald Trump benefited—was filed last October. (There is a statute of limitations on the tax evasion claims, but there is no statute of limitations on judicial wrongdoing.) On Feb. 1, the courts indicated that the complaint was “receiving the full attention” of investigators. Ten days later, Barry filed her paperwork to step down. The investigation dies with that action. But we are waiting to hear Robert Mueller’s conclusions on whether the president has misbehaved.

Last week, as professor David Rothkopf ably summarized here, Attorney General William Barr testified that he was able to be the arbiter of whether the president obstructed justice, which is actually not the case. He also reversed a long-standing Department of Justice policy to defend statutes because the president told him to. The treasury secretary has refused to abide by a law that on its face demands that the president’s tax returns be turned over to the House Ways and Means Committee, again at the president’s request. In other words, in many departments, we are seeing Trump appointees willing to put the president above the law. We saw a mass purge at the Department of Homeland Security ostensibly because no senior officials are willing to break the law hard enough and fast enough to mollify the president. We heard the president invoke the word treason explicitly to describe his critics. But we are waiting for William Barr to summarize for us whether Robert Mueller concluded that the president has violated the law.

Last week, it was also rumored that the president had threatened to send undocumented immigrants to so-called sanctuary cities to punish political opponents. The White House initially indicated that the proposal was not seriously considered, until the president said it was still being considered, and by Sunday, it was back in play. On Friday, the president tweeted a video incorrectly suggesting that Muslim American Congresswoman Ilhan Omar doesn’t think 9/11 was a big deal, the contents of which were so offensive that Fox News would only play 5 seconds of it. On Sunday night, it was reported that the threats against her life had increased to the point that she needed additional security. Still, we are waiting for the Mueller report to help us determine whether the president is fit for office.

There is no crime called collusion. There has never been a crime called collusion, but that is the crime from which Donald Trump—never having seen the Mueller report—says he has received “complete and total exoneration.” Very few people have actually seen the Mueller report, but we do know that there was no explicit finding by Mueller on the question of whether Trump obstructed justice. And yet, when it comes to that very question, much of what we saw happen before our very eyes—Trump’s treatment of James Comey, his complaints about Jeff Sessions, multiple efforts to stymie the investigations—could certainly be understood to be elements of obstruction of justice. So acute is the sense of national shock and trauma at Trump’s open and flagrant misconduct that we are waiting patiently for a Mueller report to confirm that we have all been seeing what we’ve all been seeing for the past two years. We are standing next to a burning building and waiting for Robert Mueller to let us know if he smells smoke.

Senate Republicans, bearing witness to all this, are extremely upset with … the president’s choices for the Fed. Beyond that, they will tolerate quite literally anything, including multiple agencies without Senate-confirmed Cabinet officials and agency heads. High-level collaborators will write memos to the file and count on history to exculpate them for doing their best in the face of an out-of-control autocrat. No matter what facts Mueller assembles, they will discredit it as the lawless work of deep state spies.

Robert Mueller was not charged with saving America from Donald Trump. Robert Mueller was not asked to define the scope of his own mandate in order to fit the precise contours of Donald Trump’s misdeeds. The persistent and perilous belief that whatever it is Robert Mueller has unearthed in secret is more relevant or compelling than what Donald Trump does openly every single day has produced a national myopia that has everyone so obsessed with the fruits of the Tree of Collusion and the Tree of Obstruction that we may have missed the forest altogether. We don’t get to outsource all the crime fighting and unfitness determinations to Robert Mueller and Adam Schiff. This is not the sharing economy; they aren’t Uber.

We have allowed Donald Trump’s narrow legal aperture—which allows only the noncrime of collusion to be the issue—to define the scope of wrongdoing for the rest of us. We have allowed the president to determine and define what we should consider illegal and improper and unfit, and we have allowed the confines of Mueller’s directive to define what we can hold Trump accountable for. But we should know what is wrong.

The issue before us is not just whether Barr eventually lets us know whether Mueller ultimately determined that the president unlawfully conspired with Russian agents to sway the 2016 election, or whether he attempted to obstruct inquiries into related investigations. The issue before us is (or at least, includes): whether Donald Trump has dangled pardons to obtain illegal outcomes, removed officials for their refusal to break the law, rewarded or pardoned others for breaking the law, threatened judges for legal conclusions they have made, violated campaign finance laws, violated tax laws, punished and threatened the free press, incited violence against Muslims, misused his charitable foundation, incited violence against political opponents, violated the Emoluments Clause, directed others to make illegal campaign payments, declined to seek redress for the brutal murder of a journalist by a foreign power, forced family separations at the border, attempted to change the asylum law at the border, banned trans service members, attempted to revoke Dreamers’ status, had conflicts of interest with Russia and other oligarchs worldwide, persistently lied about his conflicts of interest during the campaign and thereafter, used his twitter feed to incite retributive acts against critics … this list could go on and on. And on.

There will be a public reckoning about what the Mueller report contains and who can see it, possibly as soon as this Thursday, when the redacted version will be released. We can wait for that and have it, but we also need to acknowledge that it is not a substitute for a systematic public reckoning about everything else. Being so stunned by what’s happening every day that you put all hope in what someone else might uncover tomorrow is a rational way to cope in a time of numbing disintegration of government, rules, and trust. But it’s not enough. It’s not a substitute. It’s barely even a start.