On a special Thursday episode of Amicus, Slate’s podcast about the Supreme Court, Dahlia Lithwick was joined by Jed Shugerman, a professor of law at Fordham University who writes about law and politics at Shugerblog and is a regular contributor to Slate. A transcript of the interview, which has been lightly edited and condensed for clarity, follows.
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Dahlia Lithwick: The way William Barr laid it out in his report, it sure sounded like he was saying that unless Donald Trump Jr. was actually sitting in the laps of hackers and typing for them, then there could be no meaningful agreement to conspire. Is that definition correct as a legal matter?
Jed Shugerman: I don’t think that’s the correct definition. It also gets into the larger problem that we all are still having about what is the line between collusion and conspiracy. This is exactly how Barr has it backward. Both in the letter that he distributed on the Sunday night after the report was dropped in his lap, and then this morning, his argument is essentially that there continues to be an arrangement that, well, if there’s no underlying crime, then there can’t be obstruction.
In fact, it really is the opposite. It’s that because there was so much obstruction, it’s impossible for us to know whether there was a conspiracy. This is like in baseball, at a play at the plate, the batter on deck throws dirt in the umpire’s face and then argues that the player was safe. It’s the obstruction that deepens the conspiracy problem, makes the obstruction more serious, rather than saying, we know there was no conspiracy, and thus there couldn’t have been obstruction.
One of the things that jumped out at me reading the report is Mueller writing, everybody was lying to us. He just straight up says, people were lying. It’s a very, very strange thing when he has to start from the presumption that nobody’s telling the truth. On the obstruction piece, there’s something deeply weird about the fact that the chief defense that Donald Trump has today is that he would tell people to do things, and they just wouldn’t do it. So, he would say to Don McGahn, “Go fire Mueller.” Or, he’d say, “Take this letter to Jeff Sessions, Corey Lewandowski.” And, nobody would do the things he was telling them to do. That’s a deeply, deeply weird definition of obstruction. I tried to obstruct justice, but nobody would let me do it.
That’s right. You can conspire under federal statutes to commit another crime and fail to do so as long as you take a material act. That’s what we have here. We have attempted obstruction. Let’s just lay it out: We have actual obstruction, first of all. A lot of these events, not only firing [former FBI Director James] Comey, but I would say there’s now ample evidence of witness tampering by Trump. Then, we have attempts and conspiracy to obstruct justice with his order to Don McGahn to actually fire Mueller. It’s been reported, but now it’s being confirmed in this document. There is a huge question here about obstruction and also about Barr’s credibility. The other thing I’d say is now that we have even this redacted version, I think Barr is exposed for how he has characterized this investigation.
It is clear that the obstruction case, as Mueller interpreted it, was colored by the fact that they were talking about presidents, and Mueller makes explicit references in this report to the complications of a president not being able to be indicted under Office of Legal Counsel guidance. Barr mischaracterized that and continues to mischaracterize whether Mueller was inviting Congress. He explicitly invites Congress to weigh in on this.
Another thing really struck me: It seems as though Mueller is saying time and time again that there are structural constraints on him, whether it’s the OLC guidance that says you can’t indict a sitting president, as you just said. He says that really informs my decision-making here. He couldn’t or decided he couldn’t interview Donald Trump. He couldn’t do a whole bunch of things. He talks about the president’s Article II powers that confound some of this. He’s saying in a hundred different ways, I tried to work within the guardrails. It’s interesting because then he turns around and says, but nothing is stopping Congress from looking at this. Is he just passing the buck? Is he, in effect, saying, Look, you tasked me with doing this thing. I am shrugging my shoulders. I’m not, not exonerating him. And, Congress, it’s your turn?
I do think that explicit in this document is the recognition of the separation of powers and an invitation for Congress to weigh in. I think that Mueller is being realistic. We don’t know everything behind the scenes. We don’t know to what extent Mueller got signals that he had to make a choice about how hard to push for things like a live interview, that he may have known that Trump had tried to fire him, and he saw the report that Trump had ordered his firing. I think it’s very hard in hindsight to second-guess some of the decisions Mueller made, the big one being no live interview of Donald Trump. But, I also think that there is a realistic understanding that once you had the mix of Matthew Whitaker and William Barr as attorney general, he also knew that the path would not be through pushing for an indictment of a sitting president. I think it more realistic to talk about this as being Congress.
It’s also really important to understand why Mueller didn’t bring any additional indictments with this report. I think part of what Mueller was doing here was emphasizing a counterintelligence investigation, not just a criminal investigation. A lot of this document, and a lot of what’s redacted, is about the Russian interference. I think there also was a political understanding that Mueller wanted that piece of the report to be taken seriously, and if it had come down with a series of indictments of Don Jr., or Kushner, etc., it may have made it more partisan or made it more difficult for that part of his investigation to be taken more seriously across the board. I wouldn’t call it hunting, so much as I think Mueller understood the political constraint and that the Republicans in Congress did not back him in terms of his job security. So I would say that the blame should lie on the Republicans for putting him in that precarious position to worry about the constraints on his power and his strategy rather than say Mueller made a mistake in hindsight.
That was always [Chairman of the House Intelligence Committee] Adam Schiff’s posture, right? Adam Schiff has said for a year now, “I want to get to the bottom of the counterintelligence probe. I want to know where we’re exposed. I want to make sure this doesn’t happen next time.” There’s a weird way in which when you read these Russian contact things you just have this Keystone Cop sensibility of, well, Don Jr. didn’t know what was happening in Trump Tower and nobody knew what was going on, and yet, there’s a way in which there’s this larger, urgent question, which is: What did the Russians do, and can they do it again? And, as you say, I think Mueller took that incredibly seriously and now hands it off to Adam Schiff who will also take it seriously. That’s the piece of this that gets lost in all the gossip, but that’s the piece that stops your heart.
Yes. I think that’s right. But, I also think it’s important to see that Mueller has given Schiff and members of Congress a road map. There was the Watergate-era road map that was never published. This document is not as redacted as I feared it would be, but it is still tremendously redacted. But I’m hopeful that there will be a less redacted version. It sounds like there will be for Congress.
Let me just mention some new things now in the record about the Russian contacts.
One is, we learned a lot more about Jared Kushner’s contacts with a Russian named Dimitri Simes, where he set up a hotel meeting for Trump to meet [former Russian Ambassador Sergey] Kislyak in late August 2016. That section of the report, around page 100, is remarkable and pretty damning for Jared Kushner. It’s shocking that he has national security access, given the conduct that we see here. We also now know more about the Trump Tower meeting in June with Don Jr. We have something new that Don Jr. tells Natalia Veselnitskaya. They were talking about the Magnitsky Act and sanctions, and Don Jr. reportedly says that, well, there’s nothing that Donald Trump can do about it now as a private citizen, but we will revisit it “when and if Trump is elected.” This also exposes the obstruction of justice and how President Trump continued to lie about that Trump Tower meeting.
We now know in this report that when Paul Manafort met with Konstantin Kilimnik on Aug. 2, 2016, he handed over to Kilimnik the internal polling and identifying battleground states to Kilimnik. How is that not a kind of coordination?
Finally, this report indicates that the unknown person who directed campaign officials to tell Roger Stone to get in touch with WikiLeaks … it’s still not explicit, but there are more signs that that was President Trump himself. That is the core coordination with the hacking. Trump telling officials to get in touch with Stone, to get in touch with WikiLeaks, it doesn’t have to be direct to still be a conspiracy.
