The Mueller Report Makes A Case For Impeachment 

By Barbara Radnofsky 

Special counsel Robert S. Mueller III, following a subpoena, recently agreed to testify to the House Judiciary and Intelligence Committees. News reports suggest that his testimony, originally scheduled for Wednesday, July 17, may be delayed. But whenever he testifies, Congress intends to question him concerning his work as special counsel, his March 2019 “Report on the Investigation into Russian Interference in the 2016 Presidential Election,” his findings and charging decisions on such matters as presidential obstruction of justice and misconduct, the origins of the investigation and the counterintelligence portions of his work.[1] 

This testimony represents a great opportunity for Congress to focus public attention on the report’s findings concerning President Donald Trump’s intentions and actions, and the ongoing harm they are causing to the United States. In advance of Mueller’s testimony, it is useful to review how specific allegations from the report provide support for articles of impeachment against the president. 

The investigations, prosecutions, report and other work of the special counsel: 

  • Prove and analyze continuing presidential intentions to obstruct justice; 
  • Provide a greater wealth of evidence than ever mustered for previous United States impeachments (with the possible exception of the Civil War impeachment of a federal judge switching sides and openly waging war against the Union); and 
  • Educate the public by providing substantial evidence supporting the key element of impeachment: harm to the country.[2] 

President Trump’s Enduring Intentions 

Per the special counsel’s report, Trump committed multiple acts “capable of exerting undue influence over law enforcement investigations.”[3] Trump often committed such acts privately “through one-on-one meetings in which the President sought to use his official power outside of usual channels.” 

Trump also intensified public strategies and tactics, in escalating phases of action — e.g., discouraging witnesses from government cooperation, dangling pardons and messaging jurors — with intent to influence his targets.[4] For example, the president’s carefully timed, repeated, public attacks on the family of his lawyer Michael Cohen — who provided damning documents and testimony against the president — evidenced presidential intent to “discourage Cohen from further cooperation.”[5] 

Barbara Radnofsky 

What motivated Trump to commit such acts, according to the report? Concerns over the legitimacy of his presidency, as well as his and his family’s criminal liabilities. To White House Communications Director Hope Hicks, he described intelligence assessments on Russian election interference as his “Achilles heel.”[6] 

Initially, presidential concerns led to presidential dithering. When National Security Advisor Michael Flynn lied about his preinauguration role in engaging with Russian officials seeking to escape Obama-era sanctions (for Russian election interference),[7] the press queried: Why would Trump, informed of a lie subjecting the national security advisor to potential blackmail, retain Flynn as NSA for almost three weeks? The president “equivocated on whether to fire Flynn because it would generate negative press.”[8] 

The report documents Trump’s “concerns that continued investigation would call into question the legitimacy of his election and potential uncertainty about whether certain events … could be seen as criminal activity by the President, his campaign, or his family.”[9] Presidential concerns included investigation of “advance notice” that WikiLeaks (which received and posted information stolen by Russian military intelligence) would be releasing its hacked information. And he feared investigation of the June 9, 2016, Trump Tower meeting between senior campaign officials (including his son — who promoted WikiLeaks after U.S. intelligence agencies publicly tied WikiLeaks to Russian-directed efforts to interfere) and Russians promising dirt on his opponent, former Secretary of State Hillary Clinton.[10] 

In what the report calls the first phase of the president’s actions, Trump made “public that he was not under investigation.”[11] He escalated after firing U.S. Federal Bureau of Investigation Director James Comey, who had testified truthfully about an ongoing intelligence investigation into Russian election interference, refused presidential requests for personal loyalty and declined to close the FBI’s Flynn investigation.[12] 

The second phase began with Trump’s awareness that his conduct was under investigation, marking a significant change in the President’s conduct and the start of a second phase of action. The President launched public attacks on the investigation and individuals involved in it who could possess evidence adverse to the President, while in private, the President engaged in a series of targeted efforts to control the investigation.[13] 

Mounting presidential obstruction included directing staff and his son to obscure the June 9, 2016, meeting, and ordering the removal of the special counsel, which did not succeed despite intense presidential pressure on many individuals, including White House counsel Don McGahn. McGahn refused to deny accurate media accounts of Trump’s actions. 

Trump also failed to limit the investigation’s scope — to exclude all past misconduct. He failed in bullying U.S. Attorney General Jeff Sessions into unrecusing himself from oversight of the investigation. And Mueller documents massive presidential misconduct vis-a-vis his attorney Michael Cohen, whose criminal pleas and related documents provide evidence for impeachment grounds, including cover-up, corruption, lies and conflicts of interest.[14] 

Mueller’s framework further explains escalating behavior we can label “phase three,” with his report’s delivery to Sessions’ replacement, William Barr, who claimed that the evidence therein was “not sufficient” to establish presidential obstruction of justice, and that the report demonstrated that “Russian operatives … did not have the cooperation of President Trump or the Trump campaign or the knowing assistance of any other American for that 

matter.”[15] 

These provably incorrect characterizations of the Mueller report fit into Trump’s “phase three”: attacking Mueller’s work and investigators; thwarting congressional investigations; and claiming exoneration — despite a wealth of contrary evidence and Mueller’s statements that he could not exonerate the president [16] 

Mueller’s Wealth of Impeachment Evidence 

In December 2016 and January 2017, president-elect Trump publicly denied (1) that he had had business dealings in Russia during his campaign; and (2) that Russia had interfered in his election to the presidency. Trump clearly recognized the dangerous conflicts of interest faced by a president beholden to a foreign power: “[W]e’ve stayed away … no deals and no dealings. … I just don’t want to because I think that would be a conflict.”[17] 

He allowed Hicks to say: “It never happened. There were no communications between the campaign and any foreign entity during the campaign.”[18] Addressing press reports that U.S. intelligence agencies had “concluded that Russia interfered in last month’s presidential elections to boost Donald Trump’s bid for the White House,” the president-elect opined that the reports were “ridiculous,” claimed that Democrats originated the story and suggested that the intelligence community had “no idea if it’s Russia or China or somebody. It could be somebody sitting in a bed someplace.”[19] 

These denials are provably false. 

Candidate Trump Had Russian Business Dealings During the Campaign 

The report establishes that: Between 2013 and June 2016, several employees of the Trump Organization, including then president of the organization Donald J. Trump, pursued a Moscow deal with several Russian counterparties. From the fall of 2015 until the middle of 2016, Michael Cohen spearheaded the Trump Organization’s pursuit of a Trump Tower Moscow project, including by reporting on the project’s status to candidate Trump and other executives in the Trump Organization.[20] 

Russia Interfered in the 2016 Election 

Russian security services aimed “active measures” — including foreign election interference — at influencing the course of international affairs.[21] Mueller exposed Russian election interference, including “information warfare,”[22] sophisticated social media campaigns, motivating rallies, and Russian government-directed email thefts and disclosures — with intent to interfere in the U.S. election process. 

Russian intelligence officers violated U.S. computer intrusion and other laws.[23] Russian intelligence services conducted computer intrusion operations against Clinton’s campaign, employees, entities and volunteers, stealing and strategically releasing stolen documents. Russian military units conducted the hacking operations.[24] Russian-conducted social media campaigns favored Trump and disfavored Clinton. Mueller identified numerous links between the Russian government and the Trump campaign.[25] 

Mueller’s criminal referrals educate us on long-term Russian strategies. The sentencing memo for Maria Butina, who infiltrated the National Rifle Association and befriended U.S. 

business and government figures, demonstrates how Russian citizens worked with their government, creating relationships for future uses. 

The investigators were hampered by methodical evidence destruction, uncooperative witnesses and other intentional interference. “[L]ies materially impaired the investigation of Russian electoral interference.”[26] Thus, while documentary evidence of the extent of crimes underlying obstruction is sometimes imperfect, the substantial evidence of obstruction shocks. 

For example, Paul Manafort, Trump campaign chairman and chief strategist from May to August 2016, directed his longtime employee Rick Gates, the deputy campaign manager and deputy chairman of the Trump inaugural committee, to make daily deletions of WhatsApp communications — including Trump campaign reports and polling — which were shared with longtime Manafort contact Konstantin Kilimnik, assessed by the FBI as tied to Russian intelligence. 

The intended user of this information was Russian oligarch Oleg Derispaka, for whom Manafort worked for years as a consultant. The report further chronicles intense, post- election Russian efforts to exploit now-established relationships, communicating with Trump campaign members and family, including Flynn and Manafort. Manafort remained in touch with Kilimnik into the spring of 2018, promoting Russian interests in Ukraine.[27] 

Mueller provides one of the greatest troves of evidence for impeachment in U.S. history, including harmful public deceptions, corruption, conflicts, betrayals of trust, abuses of power, obstruction of justice and violations of the president’s oath of office (which includes a duty to defend against ongoing attacks on U.S. democratic processes). The only possible greater historical example is another betrayal of trust: the open, obvious betrayal of U.S. federal judge West Humphries, impeached and convicted after openly waging war against the U.S. during the Civil War as a Confederate judge. 

As with every impeachment in U.S. history, Humphries’ treachery was pled as forms of “high Crimes and Misdemeanors,” focusing on harms posed by the high officer. This ancient phrase requires no crime or misdemeanor as we know it. Humphries, absent from trial, convicted in impeachment and automatically removed from office, never suffered criminal penalties. This is because impeachment is a noncriminal process, with the purpose of protecting the country, rather than punishing the officer. 

Mueller Explained Evidence for Impeachment Grounds 

Mueller, educating the public on the constitutional impeachment process in a detailed footnote,[28] distinguished impeachment, carried out by Congress, from U.S. criminal processes. Speaking publicly,[29] he clarified that the Constitution “requires” the noncriminal process to formally accuse a sitting president of wrongdoing. 

The special counsel further explained that a president motivated by a selfish desire to protect noncriminal personal interests, or to avoid embarrassment, harms our system of justice: “[I]f the likely effect of the acts is to intimidate witnesses or alter their testimony, the justice system is equally threatened.”[30] 

Mueller also discussed the risk of future harms. The “President’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests.” With experience and new personnel, the president has greater opportunity to hasten escalating 

use of Mueller-described “unique and powerful means” for a president “to influence proceedings, subordinates and witnesses,” which are “enhanced by his unique ability to attract attention through use of mass communications.”[31] 

One congressional committee is already focused on developing evidence of harm. In June 2019, House Intelligence Committee Chairman Adam Schiff called expert witnesses who testified on the harms of Russian interference, and on how Trump campaign agreements for secret contacts with Russian officials signaled willingness to accept Russian help, highlighting the “danger created by contacts between Trump campaign officials and Russian emissaries.” The witnesses described varied Russian methods of exploiting contacts, including escalating requests, using secrecy for leverage, and progression to blackmail.[32] 

Schiff understands impeachment, having successfully managed two 21st-century impeachments, leading to the conviction and automatic removal of federal district court judge Gabriel Porteous and the forced resignation of federal district court judge Samuel Kent. These modern impeachments built on bipartisan congressional Watergate-era research and impeachment charges against President Richard Nixon. 

The Nixon charges, which have become templates for subsequent impeachments, included: 

  • Article 1: Deceptions, interference, influencing witnesses in legally authorized investigations, and deceiving the U.S. people that a “thorough” investigation found no involvement of the president and his campaign. 
  • Article 2: Impairing due and proper administration of justice and lawful inquiries, interfering with executive branch agencies, and violations of presidential constitutional duties, including the duty to take care that the laws be faithfully executed. 
  • Article 3: Willful disobedience of lawful congressional subpoenas. 
  • The key element of harm, as with every impeachment in the history of the United States: 

In all of this Richard M. Nixon has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice to and to manifest injury of the people of the United States. 

Mueller has provided evidence for multiple grounds for Trump’s impeachment. Most importantly, he has proved ongoing, escalating and enduring harms. 

Barbara Radnofsky is an attorney, mediator and teacher, and author of “A Citizen’s Guide to Impeachment.” After her retirement from Vinson & Elkins in 2006, she became the first woman in Texas history to be nominated by the Democratic Party for U.S. Senate and state attorney general. 

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice. 

[1] https://www.cnn.com/2019/06/25/politics/robert-mueller-will-testify/index.html. 

[2] For information on impeachment concepts, grounds and cases referenced herein see the author’s book, “A Citizen’s Guide to Impeachment,” pp. 3-4 and 19-30, 43-44, 58-64 and 77-84, and endnotes 1-3, 7, 79-138, 194-202, 248-257 and 296-322. 

[3] 2M157. All references to the Mueller report begin with volume number and end with the page number(s), separated by “M.” 

[4] 2M157-158; 126,131-133. 

[5] 2M156. 

[6] 2M23. 

[7] IM67. 

[8] 2M41, n.244. 

[9] 2M157. 

[10] 2M157; IM59-60. 

[11] 2M158. 

[12] 2M44-45. 

[13] 2M158 

[14] 2M48-158. 

[15] https://www.npr.org/2019/04/18/714810688/the-redacted-mueller-report-is-out-but- it-does-not-exonerate-trump-of-obstructio. 

[16] 2M2, 182. 

[17] 2M23, n.72. 

[18] 1M21. 

[19] 2M21-22. 

[20] IM67; 2M136. 

[21] 1M9, 14. 

[22] 1M4. 

[23] 1M7-9. 

[24] 1M36. 

[25] 1M1. 

[26] 1M9. 

[27] IM135-143 

[28] 2M178, n.1091 

[29] https://www.cbsnews.com/news/read-robert-muellers-full-remarks-on-the-conclusion- of-russia-investigation-today-2019-05-29/. 

[30] 2M157. 

[31] 2M156-158. 

[32] https://www.motherjones.com/politics/2019/06/counterintelligence-experts-say- trump-opened-the-door-to-russian- interference/; https://www.nytimes.com/2019/06/13/us/politics/michael-flynn-rick-gates- subpoena-russia.html.