Talking about the Rule of Law with Robert Mueller and E. P. Thompson

Aziz Z. Huq

 

“What is remarkable (we are reminded) is not that the laws were bent but the fact that there was, anywhere in the eighteenth century, a Rule of Law at all.”[1]

 

Predictably and painfully, the public exorcism of the Mueller investigation came to an ashen close this week. Its climax—or perhaps more accurately, bathetic anticlimax?—took the form of a pair of congressional hearings where the Special Counsel along with an assistant testified. These were a peculiar blend of ghostly whispers conjuring evasions and circumlocutions, a surfeit of the usual theatrical bluster and malarkey—thank you, Jim Jordan—and the occasional huffs of exasperation by Mueller himself. The latter were not, though, evinced by any pained splinter of concern at the documented fact of presidential criminality. Rather, the special counsel showed the most energy when his rock-ribbed prosecutorial reputation seemed under interrogation. In contrast, the sedulous documentation in volume 2 of the Mueller report, which persuasively adumbrates almost a dozen discrete instances of presidential obstruction of justice, has vanished into little or nothing. At the hearing, their echo yielded nothing but “euphoria” from the White House.[2] The reason is easy enough to see: no reality-show producer is rushing to book Mueller on the strength of his ethereal performance.[3] But absent of some histrionic moment, like something out of A Few Good Men (1992), it is hard to see how the hearing could have made much impact in the first instance.

Credit: Caroline Brehman/CQ Roll Call/Getty Image. Source: https://www.vox.com/policy-and-politics/2019/7/28/8933709/mueller-testimony-polls-democrats-republicans-americans-impeachment-russia-trump-impeachment

These events would be no surprise to readers of E. P. Thompson’s masterful history Whigs and Hunters. Its first 250-odd pages, after all, are a powerful, even unforgettable testimonial to the potency of “bad law, drawn by bad legislators, and enlarged by the interpretations of bad judges” (WH, p. 267). Those pages sketch indelibly the Black Act of 1723, a cruel enclosure of land and customary rights as an incident of class war, one that extended the death penalty to deer stealing, tree cutting, and burning. In the body of Thompson’s account, law is a tyranny, as red in tooth and claw as the rapacious English land-owning class that wielded it without compunction or hesitation.

Yet, in a passage that has puzzled many of his admirers and ideological fellow travelers, Thompson ends his account with a paean to the rule of law. Despite everything in Whigs and Hunters, he nonetheless praises the “remarkable” virtue of law. This adheres in its “principles of equity and universality which, perforce, has to be extended to all sorts and degrees of men” (WH, p. 259). This quality of generality is common to many leading definitions of the otherwise protean rule of law, from Joseph Raz’s to Lon Fuller’s.[4] Hardly a panacea—remember Anatole France’s pungent line about the law’s “majestic equality”—law still seemed to hold for Thompson the promise of some vestigial constraint on the wielding of state power against the vulnerable.[5]

One hears something of an echo of Thompson’s sentiment, I think, in calls from the left for the machinery of criminal justice—responsible for the evil of mass African-American incarcerations, the horrors of the war on drugs, and far more—to crank into action against Trump. There has been an idea on the left that prosecutors will come swinging to the rescue, ending the moral catastrophes of the Trump presidency, without reckoning with its structural causes or institutional continuities.

The hope was always an unlikely one, quite apart from its selective and culpable omissions about American criminal justice’s longer historical record. At the Mueller hearings, the hope plainly flared and died. The documented instances of serious criminality—witness tampering of the sort that gives drug dealers a bad name—are simply ignored, drowned out with cries of “no collusion.”

I think this is an opportune moment for thinking about the role that law plays in constraining power, and state power in particular, in a putatively liberal and democratic context. In particular, this is an opportunity to think about the circumstances in which that constraining role can be anticipated, and when it is likely to fail. When, that is, should we anticipate the cooperation of law with “tyranny,” and when should we anticipate the vindication of “principles of equity and universality”?

Something of an answer to this question germinates within the text of Whigs and Hunters itself. For Thompson, the “essential precondition for the effectiveness of law, in its function as ideology, is that it shall display an independence from gross manipulation and shall seem to be just” (WH, p. 263). That is, to function effectively as ideology, the law cannot be wholly supervened by the naked policy preferences of a hegemonic class. It can’t be too ruthless or zealous in its pursuit of dominion. The civilizing force of the law’s touch thus depends on the political implausibility of (too much) hypocrisy. Appearances, or the compulsion to keep them up, turns out to matter. This sort of mechanism contrasts with the notion, associated most recently with Frederick Schauer, that law constrains only when it can credibly threaten coercion or force.[6]

Once one focuses on the legitimacy of law as a normative system independent of “gross manipulation” as the effective vector of law’s constraint, the failure of the Mueller report to generate consequences commensurate with its accusatory force becomes clearer. For three related structural reasons, the current occupant of the White House has no need even to gesture or perform fealty to the rule of law in terms of his personal conduct. Both for him and for members of his political coalition—both legislators who ignore his criminality and judges who ignore his nakedly unconstitutional animus—the civilizing bent of law’s generality no longer has a gravitational pull. These reasons, to be clear, aren’t general in scope. They are local to a particular historical moment. They may be, therefore, exemplary rather than exhaustive of the conditions in which Thompson’s aspiration founders.

To begin with: there is simply no partisan political logic to law’s restraint, even where what is at issue are serious violations of the criminal law. In a separation-of-powers system, just as in a parliamentary system, a president in large measure stays afloat through his or her ability to influence legislators. Republican legislators in safe seats—whether because of the “big sort”[7] or just gerrymandering[8]—have to worry not about the general election but the primary. Unless Republican primary voters are motivated to care about legality, Republican legislators are not likely to be moved by allegations of law violation. That is, they have to worry about the slice of the population that is probably most likely to approve of Trump, and perhaps most likely to be enraptured by his venal and venial sins. But Trump commands an approval ratingconsistently greater than 80 percent among Republican voters.[9] That approval may be correlated with a distaste for certain elements of liberal constitutionalism.[10] Tellingly, it peaked after his recent racist attacks in four women legislators of color.[11] This means that Trump has nothing to fear from copartisan legislators; they, in contrast, have everything to fear from his ability to provoke a primary challenge.

Second, the American public sphere is organized around media that are structurally oriented toward the dilution and distortion of information harmful to Trump, and the elevation of information (true or not) that helps him. This is not the internet, but the pro-Trump cable news shows that populate much of the public imaginary. In a brilliant dissection of political misinformation during the 2016 election, Yochai Benkler, Robert Faris, and Hal Roberts have shown that misinformation’s diffusion is not the result of Putin’s troll farms or Cambridge Analytica, but rather the decision of cable news hosts, acting as trusted intermediaries, to push out Pizzagate or deep state conspiracies.[12] Benkler et al.’s compelling empirical analysis decisively undermines the canard that social media or Facebook alone has critically undermined the possibility of a shared public sphere by enabling the spread of disinformation.[13] Given the structural alignment between the Trump presidency and Fox News in particular, it was never likely that any wrongdoing (barring perhaps the infamous possibility of murder in cold daylight) would move the needle.

Finally, there is the content of the law itself. To an extent that nonlawyers perhaps do not appreciate, the law’s substance is not predetermined by the text of, say, a criminal statute or the Constitution. The questions whether the president can obstruct justice, or whether he or she can be indicted as a result, are not resolved by Article II of the Constitution or the obstruction statute directly. Rather, they are interpretations of the law. Interpretations depend on the institutional context in which they are manufactured. Law’s penumbra, as Thompson appreciated, is a function therefore of its institutional conditions.

The law of criminal penalties is in the first instance the work of prosecutors, who must interpret vague or general statutes before applying them. The only formal legal authority on whether a president can be indicted is, therefore, controlledby the Department of Justice, a body that reports to the president.[14] Even before one gets to the stacking of the federal bench with former prosecutors and White House lawyers, or starts to dabble in the airy suppositions of “unitary executive” theory, there was a (yet again structural) bias against the kind of generality that Thompson savored—at least when it comes to the president. The point here is absolutely not that the president is “above” or “beyond” the law: the relationship between law and the presidency is far too complex,[15] far too mutually constitutive, to support that sort of broad and inchoate a claim.[16] Rather, the specific forms of legality that the president can invoke, or that can be invoked against him or her, are a function of institutional context, and in the context of the criminal law there is a profound inconsistency between the aspiration of “principles of equity and universality” and the brute fact of institutional motivation.

On the same day as the Mueller hearing, a federal judge in Washington, D.C. upheld a Trump rule that would bar almost all asylum claimants because they had moved through a third country without first seeking asylum there, a rule that even the neoliberal Economist decried.[17]  Law, in at least one of the forms that Thompson recognized and documented in Whigs and Hunters, remains alive and well in America. Where and how it grips is a function, though, and should be the focus of careful and situated analysis—and not a matter of aspiration or hope alone.

[1] E. P. Thompson, Whigs and Hunters: The Origins of the Black Act (London, 1975), p. 259; hereafter abbreviated WH.

[2] Eliana Johnson and Melanie Zanona, “’Euphoria’: White House, GOP exult after a flat Mueller performance,” Politico, 24 July 2019, https://www.politico.com/story/2019/07/24/robert-mueller-testimony-gop-white-house-1430049

[3] Peter Baker, “The Blockbuster That Wasn’t: Mueller Disappoints the Democrats,” New York Times, 24 July 2019, https://www.nytimes.com/2019/07/24/us/politics/trump-mueller-democrats.html

[4] See Joseph Raz, “The Law’s Own Virtue,” Oxford Journal of Legal Studies39, no. 1 (Spring 2019): 1-15; and Lon L. Fuller, The Morality of Law (New Haven, Conn., 1969).

[5] Anatole France, Le Lys Rouge(Paris, 1960).

[6] See Frederick Schauer, The Force of Law (Cambridge, Mass., 2015).

[7] Richard Florida, “America’s ‘Big Sort’ Is Only Getting Bigger,” CityLab, 25 Oct. 2016, https://www.citylab.com/equity/2016/10/the-big-sort-revisited/504830/

[8] See Nolan McCarty, Keith T. Poole, and Howard Rosenthal, “Does Gerrymandering Cause Polarization?” American Journal of Political Science53, no. 3 (July 2009): 666-680.

[9] “Trump approval ratings,” FiveThirtyEight, 30 July 2019, https://projects.fivethirtyeight.com/trump-approval-ratings/

[10] Aziz Z. Huq, “The People Against the Constitution” University of Michigan Law Review116, no. 6 (2018): 1123.

[11] “Republican Support for Trump Rises After Racially Charged Tweets,” Investing.com, 17 July 2019, https://www.investing.com/news/politics/republican-support-for-trump-rises-after-racially-charged-tweets-reutersipsos-poll-1925530

[12] Yochai Benkler, Robert Faris, and Hal Roberts, Network Propaganda: Manipulation, Disinformation, and Radicalization in American Politics (New York, 2018).

[13] The post-2016 criticism of social media, in any case, was always at odds with the known demography of the Trump coalition. More recent studiesshowing widespread distrust of social media on the right and left only undermine it further; see Katerina Eva Matsa and Elisa Shearer, “News Use Across Social Media Platforms 2018,” Journalism.org, 10 Sep. 2018, https://www.journalism.org/2018/09/10/news-use-across-social-media-platforms-2018/

[14] See “A Sitting President’s Amenability to Indictment and Criminal Prosecution,” The United States Department of Justice, 10 Dec. 2018, https://www.justice.gov/olc/opinion/sitting-president’s-amenability-indictment-and-criminal-prosecution

[15] Aziz Z. Huq, “Binding the Executive (by Law or by Politics),” University of Chicago Law Review 79 (May 2012): 777.

[16] “While You Were Tweeting,” The Economist, Jul. 20, 2019, https://www.economist.com/leaders/2019/07/20/the-white-house-ditches-half-a-century-of-immigration-law

[17] See Spencer S. Hsu, “Federal judge allows Trump administration rule restricting asylum access to continue,” Washington Post, 24 July 2019, https://www.texastribune.org/2019/07/24/federal-judge-upholds-trump-administration-rule-restricting-asylum-acc/; and “The White House ditches half a century of immigration law,” The Economist, 20 July 2019, https://www.economist.com/leaders/2019/07/20/the-white-house-ditches-half-a-century-of-immigration-law

The Palestinian Shoah?

The Palestinian Shoah?

David Simpson

First, note the italics. I mean the film, not the event. We have all been well schooled in the moral orthodoxy whereby nothing can or should be compared to the Shoah, which was indeed a genocide of staggering and exceptional proportions, one whose millions of dead indeed deserve not to be jumbled together as simply one set of victims among many in modern history. Speaking about the Shoah has generated a unique level of attentiveness and deference; some feel that nothing can be said by way of explanation, or that no restorative gesture can be adequately imagined, or that any comparison with anything else is an outrage. Some say that it is best remembered as an instance of absolute evil, one that will forever stand as the limit case of human cruelty and depravity. All explanations soon seem to come to the point where something irrational must be confronted. The disturbances generated by any attempt at explanation are not likely to disappear. Claude Lanzmann’s Shoah (1985) has a good deal to do with this situation.

Lanzmann’s film generated an uncommonly intense set of responses, all now part of the record. Whether out of choice or necessity, Lanzmann barely interviewed the Nazi perpetrators: figures like the Polish train driver at Treblinka had to do most of the work of accounting for the agents. Lanzmann was a Zionist, and historical complexity is no part of his film. But the testimony of the victim survivors is unforgettable. Above all it is suffused by the melancholic passage of time; these are among the last who will speak from personal experience, who saw and felt the culture of the death camps. The Palestinian survivors of the Nakba (catastrophe) are also reaching old age; they too have little time left to be recognized and recorded.

Shoah had worldwide distribution and massive publicity. It has become an unignorable centerpiece of film history, both for its topic and its methods, and at over nine hours in length it demands a serious commitment from its audiences, one commensurate, no doubt, with the gravity of its subject. It is unlikely that Andy Trimlett and Ahlam Muhtaseb’s 1948: Catastrophe and Creation, produced largely by community funding (it was twice refused NEH support), released in late 2017 and running for not much more than an hour, will get anywhere near this level of attention.[1] Indeed at least one city council in the US actively sought to prevent its being shown. The current weaponization of anti-Semitism, which seeks to identify any critique (or even historical analysis) of Israel or Zionism as an ethno-racial attack on all Jews, will ensure that many of us who see this film will see it in the way I saw it, at a one-off showing in a Unitarian church attended by persons already sympathetic to the cause of Palestinian rights. Alternatively, we can resort to Amazon Prime. It is worth doing so.

These limits on public circulation are to be regretted, for the film deserves the widest distribution. It is the outcome of much research and some ninety interviews with those who lived through 1948 in Palestine as it was becoming Israel, interspersed with the comments of modern historians of the Middle East. It offers more or less equal time to members of the Jewish militias and to their victims, and in this sense it records both sides; but equal time does not imply moral equivalence, nor does it pretend that there is no agreement about the harsh facts of what occurred.  As I am writing, things are going rapidly from bad to worse for the Palestinians, and it is unlikely that we have reached bottom. 1948 does not claim that what happened was a Shoah equivalent; the film is modest in its documentation of actual deaths (on both sides) and is scrupulously sensitive to the anguish of those who felt or now feel terrible about their role in the “cleansing” of Arab villages and neighborhoods. Even when we are told the story of a baker and his son who were thrown alive into an oven by Jewish soldiers, there is a remarkable lack of melodrama or coercive emotionalism. On the contrary, we are made to see how absolutely normal such events are among those who feel that being at war justifies the rapes, tortures, and murders committed. The Deir Yassin massacre figures in, of course, but only as one among many other stories of violent expulsions all over Palestine.

Absent here is any reference to the obfuscating question as to whether Israel has a “right to exist,” as if any state anywhere has ever had such a right, or has been innocent of founding violence. The old canard about the two-state solution that was supposedly on offer only to be refused by the Palestinians is shown for what it was: a massively uneven division of the land that gave more than half of the land, and the best land, to what was then a Jewish minority. Muhtaseb and Trimlett have done for film what Thomas Suárez’s State of Terror (2016)—also probably destined to remain a hard-to-find book—did for the print record: they bring to life the exhaustive evidence from the archive (or what the author has been allowed to see of it) that carefully planned terrorism and violence were the foundations of Israel both before and after it achieved statehood.[2]

If the film is not “even-handed” in the habitual American sense whereby one position is set against the opposite position, whatever the issue, and no one raises awkward questions about facts, it is because the history being remembered is itself not even-handed. One side had the weapons, the training and the violent ethno-nationalist motivation, and the other did not. In the present day, the winners are taking more and more of the land, and look as if they might take it all. In so doing they are bound to confirm and compound by more and more violence their own status as unwelcome occupiers, and enact more and more punitive legislation, all the while trying to persuade the world that they are an inclusive, nonracial democracy. Many of the old Irgun and Palmach fighters report what they did and what they saw without excessive sentiment and without explicit apology, but their discomfort and occasional distress are palpable, and they share with their victims, however reluctantly, a dignified commitment to establishing the record, to witnessing. They are neither vindicated nor excused, but there are no denials. The concluding voiceover in 1948 does not ask what degree of right and wrong exists here, but whether it has been worth it; and if it has not been worth it, then what happens next? In the face of the militant triumphalism and historical misrepresentation enacted by the current Israeli government and its apologists, this new way of asking an all-too old question should be welcomed and circulated as widely as possible.

David Simpson is Distinguished Professor and G. B. Needham Chair Emeritus at the University of California–Davis. His most recent book is States of Terror: History, Theory, Literature (2019).

Footnotes

[1] Andy Trimlett and Ahlam Muhtaseb, dir. 1948: Catastrophe and Creation (Portland, OR: Collective Eye, 2017), 85 min. http://www.1948movie.com

[2] See Thomas Suárez, State of Terror: How Terrorism Created Modern Israel (Bloxham, 2016).

All That Heaven Allows: Robert Pippin and Tom Gunning Discuss the Work of Douglas Sirk

Robert Pippin and Tom Gunning discuss Douglass Sirk’s film All That Heaven Allows (1955).  Pippin’s “Love and Class in Douglas Sirk’s All That Heaven Allows” was published in the Summer 2019 issue of Critical Inquiry. 

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Q & A with Robert Mueller on Legal Writing, Imagined before House Committees

Richard H. Weisberg

 

On 24 July, Robert Mueller is scheduled to appear before various House committees. My close, literary reading of his famous report raises several questions that I would ask him were we face to face on camera. Imagine this dialogue between Mueller (“A”) and myself (“Q”), which ends with my questioning the report’s conclusions as to Part I.

Q – Mr. Mueller, thanks for your thorough investigation. I know you wanted legal precision in your written analysis, but did you and your team also aim to meet the highest standards of expository writing skill and stylistic excellence?

A – Yes. I instructed everyone who participated in drafting the report to follow the rules you set down in When Lawyers Write, your book I’ve been consulting for years.[1]

Q – I’m flattered but not surprised, because almost every sentence practices what I preached there: strong choices of subjects and verbs; good organization of paragraphs and sections; near-perfect punctuation and use of “that” or “which”; little verbosity, and only one case of significantly awkward variation in word use; keeping the reader on track . . .

A – Well, the Russian names challenged us; we could hardly sort them out ourselves!

Q – Like the first time reader of ANNA KARENINA! Still, your famous control and patience maximize the reader’s chances of following this cast of characters, in some cases from introduction to indictment . . .

A – I’m especially proud of my “chapter” linking Deripaska to Manafort, and Kislyak to Sessions. Not exactly Pierre and Natasha, but Tolstoi made up his characters’ names, while I was handed Kilimnik, Akhmetov, Serhiy, Lyovochkin, and Veselnitskaya, among other oligarchs, devotees of Trump properties worldwide, dabblers in Eastern Ukrainian politics, and abusers of the court system. What was the one awkward variation?

Q – Maybe we’ll have a chance to get to that. What counts first, though, is that I’ve rarely read a legal document, short or long, that so often flows with an elegance worthy of Benjamin N. Cardozo, Oliver Wendell Holmes, Lincoln or JFK at their best . . .

A – Please, red is not my best facial color in front of all these cameras. And the only other time I’ve addressed the public on this matter, people said that I was stiff and unclear. I know that my writing is better than my oratory, but do you really think I’m as good as Judge Cardozo, one of my heroes?

Q – Yes; consider the following representative sentence from your crucial Part II passage on the so-called witch hunt, where McGahn resists Trump’s apparent order to fire you [see pp. 345–50]:[2]

First, McGahn’s clear recollection was that the President directed him to tell Rosenstein . . . that “Mueller has to go.” McGahn is a credible witness with no motive to lie or exaggerate given the position he held in the White House. McGahn spoke to the President twice and understood the directive the same way both times, making it unlikely that he misheard or misinterpreted the President’s request . . .

A – Sorry to interrupt, but yes, this is my favorite long paragraph. The simple transitive verbs follow your “directive” to choose the most active noun in your thought and make that the subject of the sentence. I avoid sentences that look like “the cat was eaten by the dog” just by making the dog—here McGahn—the subject. Five words instead of seven, simple transitive verbs, no evasive passivity: “The dog ate the cat” all the way down!

Q – And it sets up the denouement of the paragraph’s plot: “In response to that request, McGahn decided to quit because he did not want to participate in events that he described as akin . . .“

A – I put in that “akin” myself during a final edit!

Q – “ . . . as akin to the Saturday Night Massacre. “ Now comes the coup de grace, your rhetorical brilliance in mounting to a climax through the parallel usage of everyday verbs. It’s like the greatest, most mind-blowing judicial opinion ever written, Cardozo’s Hynes vs New York Central Railroad. . .

A – Yeah, you bring that 1921 piece of prose to light for all of us in When Lawyers Write! 231 N.Y. 229, I’ve memorized it. Every lawyer and judge should read it once a month. Every literate nonlawyer, too, just like Stendhal read sections of the Code Napoleon each night.[3]

Q – Maybe Cardozo is watching these hearings today from a perch in the heavenly Sanhedrin. He would want me to emphasize your active verb choices, which follow from your fine choice of subjects:

[McGahn] called his lawyer, drove to the White House, packed up the office, prepared to submit a resignation letter with his chief of staff, told Priebus that the President had asked him to do “crazy shit,” and informed Priebus and Bannon that he was leaving.  [P. 351]

A – I tried to imitate Cardozo in Hynes. All you have to do as a lawyer is forget the obfuscation and go for lucidity, just like Cardozo when he describes the railroad’s careless termination of a day of swimming and diving on the shores of the Hudson:

Hynes followed to the front of the springboard and stood poised for his dive. At that moment a crossarm with electric wires fell from the defendant’s pole. The wires struck the diver, flung him from the shattered board, and plunged him to his death below.

Q – Did you see the irony of answering the White House’s convolutions with sheer simplicity?

A – Yes; as Cardozo taught you and then me, the form of our writing matches its substance. If you deceive through stilted or imprecise language, your listener can see through to the lies you’re telling.

Q – And if you write with directness and to the point, the truth of what you write comes through?

A – I hope so.

Q – Your report is so well written that its occasional slippage stands out awkwardly.

A – You mean the way I refuse to exonerate the President on obstruction? Everybody says they wanted a yes or a no, like with the conclusion on conspiring with the Russians.

Q – No, not at all. Your language there perfectly suited the substance of your statement, but I think nonlawyers who are going for the jugular one way or another get upset with subtleties (see p. 264).[4]After almost two years of waiting for you, people wanted red meat, and good lawyers don’t pander. The Attorney General’s “four page summary of a 300-page report is highly inadequate” people said, but few had the patience or skill to work through all those pages knowledgeably;[5]they might have been satisfied by a four-page summary that suited their preconceptions. In fact your style throughout is of a piece with the excellence we have just discussed, and there is only that one flaw I mentioned.

A – I’ll accept such a verdict. Only one flaw?

Q – Potentially fatal. . . . I’m afraid I come out of this believing that the President and his campaign did conspire with the Russians on election fraud!

A – But my contrary conclusion is the one everyone has come to accept!

Q – It’s your own confusing language. If the report were not otherwise so well written, I would not expect clarity in its conclusions. But when you fudge on a key verb, and do so at a crucial stage, you lose me.

A – Which verb?

Q – “Established.”

A – Yes, that word is crucial. I use it almost every time I make a conclusion based on evidence.

Q – The first time you define your usage, you begin to slip:

When substantial credible evidence enabled the Office [why is “office” not the subject? How does a nonhuman agency “enable” anything?] to reach a conclusion with confidence, the report states that the investigation established that certain actions or events occurred. A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts. [P. 60]

What does that mean?

A – I admit it’s not up to the rest, perhaps. I wanted the reader to know that the verb “established” as used by the report goes beyond just finding a few credible facts that might create an inference of culpability.  Established means almost complete assurance that a fact or series of facts meets the legal standard for whatever crime is being discussed, conspiracy or coordination in Part I—I reject right on that page the obscure use of “collusion”—and obstruction of justice in Part II.

Q – Could you have said “‘established’ means a fact or series of facts is credible beyond a reasonable doubt”?

A – I think that’s the way it works as the report progresses. That’s why, on the present record and given our rules, we reached no conclusion regarding obstruction of justice.

Q – But right in Part I, before you get to obstruction, you vary the verb usage from “established” to other words that are vague or undefined.

A – Examples?

Q – Sometimes the variance seals your point by exceeding the definition you’ve given for “established,” and that’s OK:

The investigation did not uncover evidence of Manafort’s passing along information about Ukrainian peace plans to the candidate or anyone else in the Campaign or the Administration. [P. 188; my emphasis]

A – OK.  If established is a difficult standard as applied, as you say, “did not uncover” is an even more definitive phrase to show an absence of culpability.  Fine. I recall using it a few pages later too (see p. 202).

Q – But the other variations on establish diminish the report’s credibility.

A – What other verbs do I use besides uncover?

Q – “Identify” is linked to the word “evidence” more than once in the report (pp. 187, 189, 225). What did you mean to accomplish by giving a synonym for an already defined word? You wouldn’t do that in drafting a deed or a will, would you? It’s at best needlessly confusing, and it’s harder to understand, I think, than uncover.

A – I think you’re nitpicking. Maybe I should have stuck with establish, but the variations you’ve “identified” so far strike me as similar in enhancing the word’s meaning, not diminishing its force. You might have referenced just now “find” as a variation too: we “did not find evidence” beyond a reasonable doubt that Campaign officials acted as agents of Russia (p. 241). Every major statement I make about conspiracy reverts to or doubles down on the word established, right? “Ultimately,” we conclude, “the investigation did not establish that the Campaign coordinated or conspired with the Russian government in its election-interference activities” (p. 231). Consistent enough for you?

Q – I can’t concede the point quite yet. The weakest link, and the one that most concerns me about this uncharacteristic stylistic slippage, relates to your chapter on the infamous Trump Tower meeting of 9 June 2016, and the possible violation there of campaign finance laws. Key Trump campaign representatives Trump, Jr., Manafort, and Jared Kushner met with various Russians, enthusiastically anticipating derogatory information about Hillary. There might have been criminal violations that day alone, notably of campaign finance prohibitions on foreign contributions of many kinds, including “anything of value” such as information (p. 244) . . .

A – Of course—our analysis of that meeting is as long and as incisive as Crime and Punishment’s sections on the investigation of Raskolnikov! I start by recognizing that this episode gets very close to Trump but conclude that (see p. 168) . . .

Q – Let me quote your conclusion:

On the facts here, the government would unlikely be able to prove beyond a shadow of a doubt that the June 9 meeting participants had general knowledge that their conduct was unlawful. [P. 245]

A – Kind of choppy, I admit, but that scienter requirement—they had to act knowingly and willfully—was the stumbling block for us under the relevant statute. We got some evidence but did not “obtain” much regarding scienter.

Q – But again there is immediate and troubling slippage in your verb usage! “The investigation,” you go on,

has not developed evidence that the participants in the meeting were familiar with the foreign-contribution ban. . . . While Manafort [for example] is experienced with political campaigns, the Office has not developed evidence showing that he had relevant knowledge of these legal issues” [Pp. 245–46; my emphasis]

A – We messed up there. I take your point.

Q – Made out of admiration for the care elsewhere. What could you have meant by “has not developed evidence”?  Aren’t you admitting that if you had moved the investigation along—“developed” this part of it—you might have met the legal requirement of the campaign’s knowing violation of law?

A – Well . . .

Q – Let’s take from this dialogue that even the conclusion of absence of conspiracy and cooperation, as well as what you say on obstruction of justice, needs to be explored further?

A – Maybe, but not by me. I did my best, and the report stands, warts and all.

Q – Small warts indeed on a fine body of writing.  Thanks Mr. Mueller, for being an excellent lawyer.

 

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[1] See Richard H. Weisberg, When Lawyers Write (Boston, 1987).

[2] Page references are to the Washington Post version of the Report (2019), following the number on the lower right of each page.

[3] See Weisberg, When Lawyers Write, p. 6.

[4]

If we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. . . . While this report does not conclude that the President committed a crime, it also does not exonerate him.

The language continues the report’s practice of strong stylistic choices; the frustration it evoked cannot be blamed on “legalese.”

[5] Senator Kirsten Gillibrand, quoted in the New York Times, 26 June 2019.

 

Richard H. Weisberg Floersheimer Prof. of Constitutional Law, Cardozo Law School, Yeshiva U and formerly Asst. Prof of Romance Languages and Comparative Studies in Literature, the University of Chicago.

Reading the Mueller Report

The textual icon of our moment is surely the Mueller Report. It is the most discussed and least read books in many years. It must rank among the most eagerly anticipated and anticlimactic publications in the modern history of the book. How important is it? Or rather, what, precisely is its importance? Does it matter that is boring, especially for people who have watched the entire narrative unfold publicly over the last two years. Will it come alive (as some hope) when the movie version of the report is produced by the author’s testimony before Congress in the coming weeks?

Critical Inquiry is interested in the question of the Mueller Report as both a text and an iconic event. We hope to publish a few brief (1500 word) invited essays that assess the significance of the report, along with its reception. If you have an idea for such an essay, please send a letter with a brief precis of your idea to the editors at cisubmissions@gmail.com.

We inaugurate this forum with an essay by Richard H. Weisberg, professor at Cardozo Law School and the author of When Lawyers Write (1987).

W. J. T. Mitchell

Editor

 

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