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May 20, 2019 - Making Sense - Sam Harris

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#157 — What Does the Mueller Report Really Say?

Sam Harris speaks with Benjamin Wittes about both volumes of the Mueller Report. If the Making Sense podcast logo in your player is BLACK, you can SUBSCRIBE to gain access to all full-length episodes at samharris.org/subscribe.

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	Welcome to the Making Sense Podcast.
	This is Sam Harris.
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	Welcome to the Making Sense Podcast.
	This is Sam Harris.
	Today I'm speaking with Benjamin Wittes.
	Benjamin is a legal journalist, who's a senior fellow in governance studies at the Brookings Institution, and he's a co-founder of the Lawfare blog, which is a great source of unbiased information on U.S.
	national security and law.
	And I brought him on to do a post-mortem on the Mueller report.
	Seems to me the public understanding of what's in that report is fairly distorted by politics, so I wanted Benjamin to walk me through it.
	And if nothing else, I think you'll find this a very useful analysis of what Mueller found and what any reasonable person should believe about what he found.
	Needless to say, this is a moving target.
	Mueller may one day testify in Congress, but his findings in the report are remarkably clear and yet obfuscated to an astounding degree.
	In any case, I hope you find this useful.
	Now I bring you Benjamin Wittes.
	I am here with Benjamin Wittes.
	Benjamin, thanks for coming on the podcast.
	I discovered you, as many people have, on your fantastic blog, Dealing With All Things Legal, the Lawfare blog.
	And I'm hoping we're going to do a very accessible and fairly comprehensive, at least up to the moment, autopsy on the Mueller Report.
	But before we dive into the matter at hand, how did you get to focus on what you have now focused on for, it seems, quite some time?
	What is your legal and political history?
	Yeah, so I have a weird history, which is that I am not a lawyer, contrary to A lot of people's understanding.
	I'm a sort of legal journalist by background, and I wrote the Washington Post's legal affairs editorials for nine or 10 years, including the period starting just before the Clinton impeachment through 9-11 including the period starting just before the Clinton impeachment through 9-11 and the period after that up through 2006 when I
	And during that period, I had always had an interest in the sort of law of national security dating back from before my Washington Post days.
	But during that period, For reasons that are probably pretty obvious, I became much more acutely interested in it.
	And I left at the beginning of 2007 to come to Brookings and focus on a book I wanted to write on that subject.
	And Lawfare developed a few years later, I guess in the fall of 2010.
	And by that time, this set of subjects was essentially all of what I worked on.
	And With a few narrow exceptions it was really that was my career by that point and so over time Lawfare has just been kind of the project that you know bit me in the ass and wouldn't let go.
	Well, it's easy to see why it hasn't let go, because it's such a wonderful sanity check for many of us who just need to figure out what end is up in these matters.
	Well, thank you.
	How would you describe your own political leanings?
	Well, that's an interesting question.
	I mean, when Lawfare was founded, I think most people regarded us as, and there were only three of us who wrote it at the time, Most people regarded us as the sort of respectable right flank of a lot of the issues that we wrote about.
	So we were largely writing from a point of view of trying to evaluate government policy and sort of be helpful to practicing lawyers in areas like detention and kind of drone strikes and Guantanamo and that sort of set of things.
	The three of us were all, you know, I think what united us was that we sort of did not accept kind of a lot of the sort of conventional human rights and academic orthodoxies that were prevailing at the time.
	And so we were thought of as I guess the right of that debate.
	That was, you know, not, that was a reductionist way to understand who we were.
	And particularly as the site grew and we started adding other people, we were always politically diverse.
	And we really tried to, I don't think you will find a more exquisitely bipartisan or nonpartisan masthead in American Life and Letters than Lawfare.
	I mean, the site doesn't have any positions, it doesn't have any politics, it does have a group of people who have very different attitudes toward a lot of different issues.
	I would describe my personal politics as quite centrist, at least until the politics of the country shifted very dramatically, very suddenly, and now I
	I suppose I've had a political orientation kind of forced upon me by the circumstances in that I am very alarmed by the incumbent president, and I am opposed to what Donald Trump is trying to do and what he stands for.
	And in that sense, at a very personal level, I have sort of taken the view that In a two-party system, if one really is alarmed by the behavior of one of the parties, one doesn't really have much choice but to support the other.
	That said, that is my personal view, not the institutional view of lawfare.
	Okay, so I'm hoping that the conversation we produce here will be of interest and perhaps even persuasive to people who are not nearly as critical of the president as I am.
	By the way, can I just say that that is the ambition of Lawfare in general, and has been since long before Donald Trump, when we started it and we were writing stuff about Guantanamo litigation.
	My ambition for the site at the time was that it should be as useful to the lawyers who represent the Guantanamo detainees as it is for the government lawyers on the other side.
	And it should be as useful to people who disagree with me on the merits of certain things as who agree with me.
	And I feel the same way now.
	I mean, we do a lot of stuff that You know, the goal of which is to be useful to whoever is working on these issues or thinking about them or trying to understand them, irrespective of whether they agree with the author in question or agree with me, more particularly.
	Yeah.
	Yeah.
	Well, as we both know, that's easier said than done, especially in this case.
	I just find, you know, I have been accused of having a whopping case of Trump derangement syndrome.
	I really haven't been shy about expressing my antipathy for the president.
	Antipathy is not too strong a word.
	He embodies almost everything that I find detestable in other people.
	I might be advertising myself as a candidate for a Freudian case study, but I find it a continual source of shock that half of the country isn't appalled by what this man says and does, mostly says.
	So I want to just bracket that, and I want us to be careful in just talking about what we think is objectively true here.
	What happened, what the Mueller report attests to, and what it suggests about Trump, and what we, those of us who are concerned about his tenure and want it to end in 2020, what we should do and say about all this.
	I guess I want to start with, before we get into what is in the report, I want to see if you share my sense of how badly the release of it was handled, at least for those of us who cared about it having a useful impact.
	What are your thoughts on how this was dropped and the amount of time the president and his surrogates had to spin their, what I think will prove, a false interpretation of its contents?
	Yeah, so it's a very complicated question.
	And let's try to break out at least three and maybe four discrete aspects of the release.
	Because I think the merits of them are quite different.
	So the one on which I think Bill Barr is taking a bad rap is his handling of the redactions.
	And the amount of time between when he received the document and when he made the release.
	And, you know, a 400 plus page document that has to be reviewed for a bunch of different government equities that may produce redactions, that is a labor intensive process.
	And I don't think that a Three week, almost four week lag from his first seeing the document to a public release is a terribly bad outcome.
	Nor do I think actually that the substance of the redactions for all that a lot of Democrats are outraged by them are that objectionable.
	And I think he did a reasonably creditable job of saying Here's what I'm going to do.
	Here's the process I'm going to use.
	Here's the time frame I'm going to do it in.
	And then doing more or less what he said he was going to do.
	And the result was a document that we can all read.
	There are some frustrating redactions in there.
	There are some ones that are probably a little too aggressive in certain areas.
	But by and large, everybody knows more or less what Bob Mueller found and I, by and large, do not have a serious complaint about the way Barr handled the logistics and mechanics of the review and redaction process itself.
	The second question is, and I'm doing these in ascending order of what I think of as outrageousness, is the letter that he wrote Two days after he'd received the document.
	And that, I think, is very hard to justify.
	And I think for anybody who hasn't read the piece that Charlie Savage wrote in the New York Times that actually shows the full quotation of every quote from the report that Barr put in that letter, I think it is very hard to excuse the degree of distortion that arose from the selective quotations in that letter.
	And I do think that letter was substantively distortive of Mueller's meaning, and therefore was not at all surprised that Mueller complained of exactly that in his letter to Barr.
	And so I think, you know, if you're going to take three weeks to release the document, which I think is reasonable, it pays not to have distorted its meaning in advance of those three weeks so that the president then has This long period of time to to trumpet what turns out to be at least a complicated and in some important respects, a kind of false narrative about what the report contains.
	And I think Barr bears a lot of responsibility for that.
	The third area, which I think is arguably even worse, is the contents of his press conference the morning that the document was released.
	And in that press conference, he repeatedly used terms that are, you know, simply presidential talking points.
	Not, by the way, legal talking points, but actual Like historical talking points.
	So to say, for the Attorney General to say repeatedly that Mueller found no collusion is, you know, an appropriate thing for, I suppose, for a spin doctor to do on Fox News.
	But it is not an appropriate thing for the Attorney General to do from the Great Hall of the Justice Department.
	And it's really, you know, an exercise in In messaging that I think was, you know, beneath the dignity of the Justice Department and certainly should have been beneath Barr's personal dignity.
	So I think, you know, I think there was, I by and large agree with you that the rollout was Very unfortunate.
	I just think that some of the criticism of it focuses on what, for me, are the wrong things.
	Right.
	Well, we'll talk about conspiracy versus collusion once we get into the body of the report.
	There's one other kind of framing effect, which I think has had significant consequences and really shouldn't have, is undoubtedly there were some people who had false expectations about what this report was likely to produce.
	But it seems to me much more of a case of Trump and his supporters spreading falsehoods about what most people's expectations actually were, right?
	It's like the fact that Trump isn't being led away in an orange jumpsuit as a result of this report, or the fact that conspiracy wasn't proven, right?
	The fact that we don't have proof that Trump or people running his campaign conspired in advance with Russians to hack the election and or to hack the DNC emails.
	And to help him get into the White House thereby.
	I mean, that's, as much as I was hoping this report could destabilize the President politically, it never occurred to me that that would be what was proven there.
	So, I don't know if you have any thoughts about that, but it just, a part of the spin I'm encountering here is this triumphal sense that we took a hard swing at the ball, we, the President's critics, took a hard swing at the ball and missed entirely.
	The ball being described was not a ball I ever was aiming at.
	So I feel very much the same way.
	And I do think that there are a few caveats that I'd add to that.
	So one of them is that, as you acknowledge, there were some people who had, frankly, delusional expectations of what the report was going to produce.
	And, you know, there were people who were, as recently as a few weeks ago, talking about, you know, will they revisit the Office of Legal Counsel opinion on whether the president can be indicted, right?
	Will they?
	And there were a lot of people who seemed to expect a finding on Russian electoral interference that very directly implicated Donald Trump in criminal activity.
	And I suppose if you're one of those people that the results of the findings of the report must be very disappointing.
	I was never one of those people.
	I believed it absolutely needed to be investigated.
	And I am perfectly satisfied with a finding that, you know, Russians committed criminal acts in hacking democratic emails and
	In running a fraudulent social media campaign and that individuals when had, you know, committed criminal acts in lying to investigators, but that the nature of the interactions between the Russians and people associated with Donald Trump did not themselves amount to criminal conspiracy or other criminal activity.
	That doesn't trouble me particularly at all.
	And it's not even especially surprising to me, given what we knew about, you know, given how easy it is to avoid entering into a conspiracy with people who are, you know, operating to some degree to your benefit and with your knowledge.
	And so I don't find it especially surprising, unlike a lot of people.
	I don't find it upsetting.
	I think it would have been horrifying had there, in fact, been a criminal conspiracy.
	I would have absolutely wanted to see it prosecuted, and I would have wanted I certainly wanted the investigation to proceed to the point of satisfaction on that point.
	It has done so.
	I'm satisfied with the outcome.
	And I think the report is immensely illuminating as to what we can, as a historical matter, hold Donald Trump and the people around him accountable for.
	Well, I want to get to that, because there's much more they can be held accountable for, and that much more was what I was anticipating would be borne out.
	Let's just give a high-level snapshot of what this document is.
	There are two volumes.
	How would you describe their contents?
	So I would describe the two volumes as having between them four major sets of findings.
	The first is, and these are roughly in the order that they take place in the two documents.
	The first three are all part of volume one, and they go like this.
	The first is that it substantively clears the president and his people on matters concerning the Russian social media operation.
	That is, the Russians ran a criminal social media operation.
	that was a conspiracy to deprive the United States of regulatory authority over electoral and other matters.
	And that while people associated with the president were duped by this into engaging with the Russian material.
	Nobody on the U.S.
	side, including nobody associated with Donald Trump, knowingly participated in this scheme.
	That's the first major finding.
	And I think we should be all critics of Donald Trump on the left, on the right and in the center should be willing to accept that at face value.
	Yes, there was a Russian conspiracy.
	No, it was not one that the President or his people are implicated in, except in the sense that we all get duped by fraudsters sometimes.
	Many of the President's defenders, this is perhaps true still of many, deny that the Russians did anything of substance in the 2016 election.
	And one of the things for which I hold the President accountable is his apparent denial of this problem and the slowness with which he acknowledged the mounting evidence.
	Which continues to this day.
	I mean, the president had a conversation the other day with Vladimir Putin and was asked afterwards whether he discussed future electoral interference with him, and he said it didn't come up.
	So he continues to not want to face the consequences of this for his worldview with respect to Vladimir Putin.
	Right.
	But that said, there's a difference between being a dupe And being a criminal.
	And I think the portrayal by Mueller of the Trump people in this section of the investigation is that of they were duped.
	They may have been foolish for engaging with social media content that they didn't, shouldn't have been, should have been more savvy about.
	He does note that no Clinton campaign people were duped by the So this brings me to the second one, which is the second area, which is the hacking of emails.
	and silly and into stuff that helped them.
	But they weren't knowingly conspiring with anybody.
	And I think that we should just take that at face value.
	So this brings me to the second one, which is the second area, which is the hacking of emails.
	And this one's much more complicated because on the one hand, there is no evidence discussed in the report that anybody associated with the Trump campaign was involved in a conspiracy to there is no evidence discussed in the report that anybody associated with the And
	And it is simply not the case that there is no evidence in this part of the report that there was no engagement with, knowing engagement with, people who were Both responsible for that hacking and responsible for the release of those emails.
	And I think the sort of no collusion narrative that has emerged as to this part of the report is frankly dishonest.
	And so let me just tick off a few things that the report found that, you know, if I were a rhetorician I would not describe as no collusion.
	Right.
	Maybe we should distinguish between conspiracy and collusion here as well.
	Right.
	So look, conspiracy is a criminal offense.
	It's written in the U.S.
	Code.
	It has known elements, and it requires that two people have an agreement as to a law that they're going to violate, and a course of conduct that is going to violate that law, and that they take overt steps to doing so.
	So if you You know, are thinking about robbing a bank.
	And you ask me, would you want to help me rob the bank?
	And I say, you know, Sure.
	And then I start doing Amazon searches for your disguise, your mask, or your gun.
	And we're guilty of a conspiracy, right?
	But if I'm aware that you're going to rob the bank, and you're going to use the money from the proceeds of the robbery in a fashion that might help me, but I never agree to anything with you, and I don't take Affirmative steps in support of what you're doing.
	I'm just really pleased that you're doing it.
	What if you're at your next rally in front of tens of thousands of people, watched by millions, you champion your friend's cause in robbing the bank?
	- So, you know, there are a lot of people who, you know, publicly endorse criminal activity.
	And they do it without, I mean, think of all the people who say nice things about ISIS in public, right?
	And in publicly encourage terrorist movements to which they're sympathetic.
	The Irish Republican Army had a lot of people who spoke up for it in the United States back in the day, right?
	And as long as you keep a distance between yourself and the criminal activity of those organizations, you're actually not guilty of conspiracy to commit terrorism.
	And so here are the things, so it's really important to keep separate the question of Is there enough evidence that they participated in a criminal conspiracy to indict and prosecute people for participation in that?
	Did they behave in a way, with respect to the Russian hacking, that we should judge very harshly?
	And I think the answer, I have no reason to doubt Mueller's conclusion as to the legal question, but I also have no reason to doubt that a reasonable person reading his findings as to the substantive conduct in which they engaged should be appalled and disapproving and judgmental.
	So let me, you know, having stipulating that they did not engage in "Criminal conspiracy that one could prove to the standards of the criminal law," which is to say, "beyond prove with admissible evidence, beyond a reasonable doubt, every element of the offense." Let's talk about what the report found that they did do.
	All right, so one of them was in touch directly with the Guccifer II persona of the Russian intelligence, military intelligence.
	That's the group that did the hacking.
	There was direct contact between one member of the Trump entourage and Guccifer 2.
	They were deeply involved in sort of thinking, you know, coordinating their media strategies around WikiLeaks releases of the hacked emails, and they were actually in touch with WikiLeaks on the subject.
	So they weren't coordinating with the Russians about the hacking of the emails, but they were coordinating with WikiLeaks about the release of emails, or at least trying to.
	As you noted, the president gave a public speech in which he publicly encouraged hacking of Clinton's emails.
	And here's a part that we did not know before the release of the Mueller report, which is that right after doing so, and remember that the president has tried to dismiss that speech as a joke,
	But he immediately after that speech directed Michael Flynn, his then campaign national security advisor, to try to retrieve the emails that he was talking about in that speech, which is to say not the emails that the Russians had stolen, but emails that he believed had been hacked from Hillary Clinton's old private email server.
	And so this led to a sustained effort by people on the fringes of the campaign at Flynn's instigation, although not his direct control, to engage with Russian hackers to retrieve these mythical stolen emails.
	Now, This, of course, is not the same emails that the Russians released and actually stole.
	And in fact, there doesn't seem to be a lot of reason to get to believe that these emails actually existed at all, or that the people that they got involved with were real Russian hackers.
	But it's fair to say that the effort on the part of the Trump campaign, and remember, this is all taking place around the same period of time that there's the Trump Tower meeting, right, where they are promised dirt on Hillary's campaign and Hillary and they respond enthusiastically to that.
	So it's fair to say that they were very open to receiving the fruits of these hacks.
	That they went after, they encouraged the Russians to do this hack, to do a different hack.
	They went after emails that they believed to be in the possession of Russian hackers.
	And so my view is basically if they didn't violate the law here and didn't manage a conspiracy, It was more out of sheer incompetence and conspiracy theorizing.
	They were going after emails that didn't exist.
	It wasn't because they were morally above engaging with the Russians over hacked emails.
	And so I think the picture on this one is very damaging to the president, at least if you bother to actually dive into what they really did.
	It's interesting.
	It's analogous to what happens later in the report around the crime of obstructing justice.
	We'll talk about why he was not charged and could not be charged with that.
	It was not for want of trying that he didn't get the Mueller investigation strangled in his crib because he kept ordering people to do things which they judged to be either frankly illegal or not sane.
	And so it was just, it was really, it was a kind of a halo of insubordination that surrounded the president where he would give orders That were not followed, and it's only because they weren't followed that he hasn't been, well, I mean, it turns out he couldn't be, on Mueller's analysis, convicted of any crime while in office.
	But we would be talking about, you know, laws being broken had people obeyed his edicts.
	Yeah, and we'll get to that when we talk about obstruction.
	I actually think on the obstruction stuff, the evidence of actual criminality is pretty overwhelming.
	But I agree with you to the extent it's not even more overwhelming, it's because a lot of things that were demanded to happen by the president were not carried out.
	And that actually does mitigate to some degree the obstructive outcome, although not the obstructive behavior.
	So the third area, before we get to obstruction, though, the third area is what to me is the most dramatic, which is this, or the most dramatic in the volume one set, So the third area, before we get to obstruction, though, the third area is what to me is the most dramatic, which is this, or the most dramatic in the volume one set,
	which is this hundred plus pages of description of the contacts between which is this hundred plus pages of description of the contacts between Russians' government officials and their intermediaries and people associated with Donald Trump in the period around the campaign and And of course, the background to this is that Trump was saying at this time to anybody who will listen, I have nothing to do with Russia, right?
	And he had any way of, any number of ways of denying that his campaign had had contacts with the Russians.
	And of course, the press has revealed a lot of these contacts in the past.
	And so the fact that they took place is not a particular surprise.
	The exhaustive catalog of them is truly astonishing.
	And, you know, we can go into them in more detail, but it takes literally a hundred plus pages to describe them all.
	And what Mueller finds is that Neither individually nor collectively do they amount to this joint meeting of the minds as to a criminal purpose.
	that conspiracy law requires.
	And so, therefore, though you have this incredibly suspicious pattern of conduct and contacts, and some of which are really weird, it does not overcome the requirement of conspiracy law that there be some, you know, agreement toward an illegal purpose and overt actions in support of that.
	So, you know, again, one can say, well, therefore, he's been cleared of collusion.
	Or one could say that the pattern of behavior that Mueller documents is bizarre, concerning from a counterintelligence and and potential questions of what the Russians, what leverage they might have on him, et cetera, but does not obviously violate any particular set of criminal laws.
	And so I think that's the sort of third big basket that volume one of the document reflects.
	Yeah, and now volume two.
	All right, so volume two is where the most obvious criminality is.
	Yeah.
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