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?
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?
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.
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).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;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.
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.”
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.