I'll try a different format to reply this time - I apologize if it's not an improvement.
Brad Sallows said:
I'm not sure what "throughput" legitimacy would be, other than the diligent application of input legitimacy (the rules everyone agreed to or at least acknowledged in advance, applied fairly). I stress this idea (as I have in other threads) because what holds our institutions together is trust. "Rule of law" is basically that we have input and output legitimacy (we have rules, we know them in advance, we believe they are reasonably fair, we apply them without exception or favour). Set aside either part (mostly, ends-justify-means indifference to the rules) and people feel cheated, which is unhealthy if we want a civil rather than fractious society, or at least to stop making it more fractious than it already is.
Throughput legitimacy would be complimentary to input and output legitimacy. It would apply to the process that occurs between input and output - the mechanics of the investigation and how the government apparatus i.e. Mueller and team conducted it. Apart from the optics of having career investigators who happen to be registered Democrats - can you cite any partisan malfeasance or bias within their throughput, that taints the output? Other than what you admit is the
appearance of impropriety , is there evidence that Mueller or his investigators conducted themselves in a demonstrably partisan way, contrary to the rule of law? The very issue we're debating is whether there is merit to Trump supporters feeling cheated. I argue that the Mueller investigation was conducted within the mandate and scope it was given. Other than "
appearance of partisan impropriety" (not
actual impropriety), I don't believe there is any actual evidence that input, throughput, or output is anything other than proper. Can you give any other reason why you believe the process was improper, thus affecting the outcome?
Brad Sallows said:
An infamous comment tweeted by Bill Kristol illustrates what I believe to be an egregious error: "Obviously strongly prefer normal democratic and constitutional politics. But if it comes to it, prefer the deep state to the Trump state." My view is that there is no such reasonable choice; the system includes the means to deal with Trump (election, Congressional oversight and legislated constraints, term limit) and no-one should be willing to blow it up for short-term satisfaction or grievances. So, apply the rules and preserve output legitimacy to preserve the institutions.
I have no problem with the above, but again, I don't see how Mueller failed to follow the rules, as laid out in federal law, and as authorized by the acting AG. Apply the rules. Check. Preserve output legitimacy. Check.
Again, it is not the Special Counsel's role to release or redact his report. The conduct of the investigation has not been demonstrated to the be flawed. The full and complete report was delivered the AG, as required by law. Seems like the output is legitimate to me.
Apply the rules. Again, I ask - which rule requires the SC to redact his own report? I'd argue that had Mueller redacted his own report, that would be a clear violation of the law, and over-stepping his authority. So much for legitimacy and following the rules.
Brad Sallows said:
My answers to "should we consider political leanings" questions are "no", unless the questions are subject to "...when investigating presidential campaigns during an election, and with regard to the outcome of that election". Then my answer is "yes". Let's stick with what is at issue here - investigations which must reach inside a presidential campaign - and not detour into political litmus tests for everyone and everything. If we disagree that US presidential campaigns are exceptionally sensitive places for people with opposing political affiliations to be digging, fine. For my part, it will not do to have an administration investigate, on weak pretenses, the campaign of the challenging party, especially with evident disregard for rules and customary practices (evidence which continues to emerge), or without structuring the investigative teams to mitigate suspicion and claims of partisan bias. Mueller chose his team.
"The bureaucracy" is supposed to be apolitical, but "the bureaucracy" is not apolitical.
Let's be clear. The issue here is the Mueller investigation, which occurred after the election, and after Trump was sworn in. The election outcome is not in question. The investigation did not have a mandate to unseat Trump, invalidate the election, or even charge the President with a crime. In fact, the investigation abided by a 2000 DOJ Office of Legal Counsel opinion that a sitting president cannot be indicted.
The fact is, no such system exists in the United States that can screen potential investigators, lawyers, agents for political bias, perceived or otherwise, for politically sensitive investigations. Would you not agree that the despite the hyper-partisan media and political hacks, most Americans, whether registered to a political party or not, are moderate? How many federal employees would risk their careers (and disregard their oaths) in order to achieve partisan objectives - especially during an investigation with national security implications?
I agree with you that a presidential campaign is exceptionally sensitive. Are you aware of any mechanism Mueller could have used to dampen any perception of partisan bias? Is there any evidence that his team was assembled with political affiliation as a key criterion?
Brad Sallows said:
AG Barr asked Mueller to prepare whatever it was that Barr wanted in the form of redactions, I presume during the 05 Mar 2019 meeting. He didn't have to ask for that. He could have just accepted the report, issued his summary statement, held the report for redactions, and then made the general release. He could have accepted the report, held it for redactions, and then released it. He could have accepted the report and not released anything at all. Those who want to find fault with Barr will find it wherever they want: for anything other than immediate unredacted release, for delayed redacted release, for issuing a summary statement while making everyone wait for the redacted release, for not issuing a summary statement and making everyone wait, period.
Again, can you provide any reference to explain "how" of even "if" AG Barr requested Mueller to redact his report? As you previously pointed out, rule of law - following the rules - is paramount in maintaining legitimacy. Why, and under what authority, would AG Barr request the author of the report to redact it? Simply put, that's not in the rules.
I have not suggested that Barr has done anything improper whatsoever. You, however, have asserted that Mueller or his team failed to properly redact the report: "Mueller - or his team - failed to do so, someone else had to. That delayed release of the report. That gave Barr the opportunity to produce a short summary of what was coming. That was a self-inflicted wound by Mueller's team." Again, the report was delivered 22 Mar, and the summary 24 Mar. Mueller responded 25 Mar. I will say again: the responsibility to redact (or not) and release (or not) is the AG's alone. Insinuating that the summary was a result of failure on Mueller (or team)'s part is not factual. The requirement for the AG to notify congress is spelled out in federal law. Barr followed the law. So did Mueller, and its not helpful to imply that the release of the redacted report was delayed by Mueller or his team.
Brad Sallows said:
My conclusion is that Barr wanted to get the report out as quickly as possible, in as complete a form as possible, subject to redactions. Everything he did is consistent with that: asking for redactions to be identified in advance, issuing a summary of the key findings (including the gratuitous "not exonerated" editorial comment), getting the redactions done quickly. The public report was not, according to most commentators, much redacted. The version for Congress was less redacted. The Democrats complained about the (grand jury) redactions; they could always have gone to court and asked for the redactions to be lifted; they never did. I doubt their sincerity.
I agree that the report was not heavily redacted. Irrelevant with respect to Mueller, as that responsibility rests solely with the AG. It should be noted however, that after promising on 18 Apr 2019 not to assert executive privilege over the report, Trump did just that on 8 May 2019, preventing congress from studying the unredacted report.
Brad Sallows said:
I don't think I ever claimed Mueller had authority to release the report.
Barr offered to let Mueller review the summary in advance; Mueller declined. More evidence that Barr was being fair.
No, but you insinuate that the release of the report was delayed due to redaction failures by the Mueller team (see above quote), and that Mueller had complained about the delay.
Fairness isn't the issue here. The issue is the credibility of Mueller and team, and whether or not his conduct serves to damage the integrity and legitimacy of the findings of his report.
Brad Sallows said:
Among the the things that investigators' mandates generally do not include is a mandate to seek exoneration. It's an adversarial system, not an inquisitorial one, so investigators try to build a prosecution case. They might turn up evidence that exonerates, but they aren't required to actively seek it. Since they aren't expected to seek exoneration, I find it inappropriate that they chose to comment that they didn't find what they weren't required to search for. Nevertheless, Barr included that bit about "not exonerated" in the summary. More evidence that Barr was being fair.
One thing Mueller did well was clamp down the leaks.
Fully agree with your comments re exoneration. For the sake of clarity, it should be noted that Barr quotes the following "while this report does not conclude that the President committed a crime, it also does not exonerate him" under the Obstruction of Justice section of his summary. Again, in his report, Mueller also acknowledges that in accordance with DOJ OLC opinion, a sitting president is immune from criminal prosecution. Impeachment is the purview of Congress, not the Special Counsel.
Brad Sallows said:
No. What I mean is, common sense informs me that when they've had that long with all the tools and all that power and authority and failed to turn up anything, it means no-one is likely to ever turn up anything (except, of course, process and unrelated crimes if they have a mandate to dig as widely as they please for as long as they please, using any kind of coercion they please).
I don't see that as the investigation progressed, evidence and information accumulated to support the central proposition (some kind of election fixing conspiracy involving Russians and Trump campaign members, including Trump). The fact that Mueller summed up with no charges against any Americans suggests they pursued a dry well for almost 2 years, in addition to all the information and evidence obtained since roughly June 2016.
Well, I would argue that the Trump administration has the exact same set of powers at its disposal. AG Barr notes in his 4 page summary that, "The Special Counsel obtained a number of indictments and convictions of individuals and entities in connection with his investigation, all of which have been publicly disclosed." The investigation not only focused on the Trump Campaign, but Russian interference writ large.
It is also worth noting that Paul Manafort, Rick Gates, Michael Flynn, Michael Cohen, George Papadopoulos are all American.
Brad Sallows said:
Are you of the opinion that the Durham investigation should be turfed by November?
No. There aren't many leaks and there aren't many media figures on every night talking about some anonymously- or ex-administration-flack-sourced recent development that means The Bad Guy Is Done For Sure Now. The most I've seen are claims that at least some indictments are supposed to be in the pipeline. If that's true, it means Durham, unlike Mueller, is not working a dry well.
Again, media conjecture aside, the fact that the Mueller investigation followed the rules, and stayed within its mandate, and resulted in indictments, convictions, and referrals to other investigative bodies seems to demonstrate that it accomplished what it set out to do. Is there still any question that Russia interfered in the 2016 election?
Finally, I'll reiterate that my curiosity is centered on why Mueller would need to offer any apology for the work he and his team carried out and delivered. My impression has been (and continues to be) that Mueller is an honourable man who carried out his investigation with integrity. You'll note that I don't offer the same defence for Comey.
The key questions that I still have are as follows:
1) is it demonstrable that Mueller took political affiliation into account when selecting his team?
2) is there evidence that the members of his team allowed partisanship to influence the performance of their duties?
3) what mechanism exists (or should be created) that would alleviate the perception of political bias in future campaign investigations? i.e.how do you vet team members while respecting their constitutional rights?
4) where is it evident that Mueller caused a delay in the release of his report, and then complained about said delay? Does it make sense for a Special Counsel to redact a report that another official is responsible for summarizing and potentially releasing?
As others have noted, I've also noticed a positive change in tone re interactions / debates on this site. I'm enjoying contributing a bit more, after lurking for years.