The Mueller report should have been a knockout blow to anti-Trump forces who invested their hopes in the special counsel. With Robert Mueller’s finding that the Trump campaign did not conspire with Russia to steal the 2016 election and that there was no clear path to indicting the president for obstruction, the enterprise should have shuddered to a stop.
Instead, those who were at first dumbfounded by the special counsel’s report have since found reasons to be buoyed by it – by its grudging tone, its sly assertions resembling proof, and its insistence that not being found guilty should not be confused with innocence. If you had to pick a single sentence that captures the style and substance of Mueller’s tome, you’d find it on page 2: “A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.”
Democratic members of the House have secured Mueller’s agreement to testify. They will encourage him to offer a sort of informal indictment of the president, something to justify impeachment. Something that can be winkled out of the Mueller report.
All of which calls for a closer reading of the 448-page document. What becomes clear is that the special counsel used a number of rhetorical devices to couch evidence and craft a narrative so that a document that ultimately clears the president can also be read as an indictment.
The first thing to note about the Mueller report is just how contentious it is. It isn’t a set of findings so much as an assertion of what the findings might have been if only there had been more evidence. It is like a closing argument in a criminal case already dismissed for lack of evidence but in which the prosecutor is determined to redeem what he can of his case. Mueller turns to a variety of strategies: hectoring repetition; the use of extraneous detail to add heft to flimsy assertion; and a resort to insinuation and innuendo to prejudice the reader against those who have escaped the dock.
Papadopoulos Again and Again
Ever since the debunking of Trump-Russia dirt paid for by the Democrats and compiled by the opposition firm Fusion GPS, government officials and conspiracists have insisted that the Steele dossier had nothing to do with launching the investigation. The story is that the FBI flew into action after learning that Trump campaign adviser George Papadopoulos had made an alarming statement to an Australian diplomat in a London bar, telling him about Russian intentions to interfere with the U.S. election.
From the first page of his report, the special counsel is eager to establish the narrative that that Papadopoulos, not Steele, sparked the initial investigation. Mueller writes that in May 2016 “Papadopoulos had suggested to a representative of [a] foreign government that the Trump Campaign had received indications from the Russian government that it could assist the Campaign through the anonymous release of information damaging to Democratic presidential candidate Hillary Clinton.”
But it’s not enough to say it once. Come page 6, Mueller writes, “Papadopoulos suggested to a representative of a foreign government that the Trump Campaign had received indications from the Russian government that it could assist the Campaign through the anonymous release of information damaging to candidate Clinton.”
Mueller repeats this claim nearly word for word again on pages 81, 89, and 93.
At least page 192 offers a hint of variation: The FBI “approached Papadopoulos for an interview” because of “his suggestion to a foreign government representative that Russia had indicated that it could assist the Campaign through the anonymous release of information damaging to candidate Clinton.”
Such relentless repetition might be dismissed as lazy cut-and-paste writing. But repetition is an ancient and effective tool of rhetoric. The Greeks called it epimone; the Romans, commoratio. It can be used subtly and powerfully, as in “Brutus is an honorable man," or it can be employed in a clumsy effort to pound home a weak claim, as in “Papadopoulos suggested…that the Trump Campaign…”
What makes the claim weak?
The problem starts with “Papadopoulos suggested.” What exactly did he say? “Suggested” implies he expressed himself indirectly. The report’s use of that squishy verb all six times it refers to the conversation is an admission that Papadopoulos did not directly make the explosive claim that allegedly spurred the FBI into action.
The next part of the sentence is not only vague, but misleading – “Papadopoulos suggested … that the Trump campaign had received indications.”
This implies that information allegedly given to Papadopoulos – an adviser to the campaign – was shared with the entire campaign. This is especially misleading because the report later says it found no evidence that Papadopoulos told anyone else on the campaign about the emails.
And then there’s the descriptor “received indications,” which is even more amorphous than “suggested.” An “indication” could be anything from a light flashing Morse code to one of the grifters in “The Sting” putting a finger to the side of his nose. If Papadopoulos was told something, why not simply write he “was told”? The downside of the simple construction, from a prosecutor’s point of view, is that it lacks the implication that something furtive and sneaky is going on. “Receiving indications” by contrast, sounds suitably shady.
Where did those indications come from? The “Russian government,” according to the special counsel’s report. Finally, a precise and concrete claim. Unfortunately, it is also false. The source of his information was Joseph Mifsud, whom the special counsel describes as a “London-based professor who had connections to Russia and traveled to Moscow in April 2016.” There is a difference between someone with unspecified “connections to Russia” and the “Russian government.”
The Mueller report makes another incorrect claim when it states the Russian government offered to “assist the [Trump] Campaign through the anonymous release of information that would be damaging to Hillary Clinton.”
There is no evidence that Papadopoulos said anything about a plan to “assist” Trump through “anonymous” action to the man in the London bar – whom the report oddly refers to as a “representative of a foreign government” when everyone knows he is Alexander Downer. As Downer told The Australian newspaper in April 2018, Papadopoulos “mentioned the Russians might use material that they have on Hillary Clinton in the lead-up to the election, which may be damaging.”
Put these corrections all together and the special counsel’s oft-repeated statement – “Papadopoulos suggested to a representative of a foreign government that the Trump Campaign had received indications from the Russian government that it could assist the Campaign through the anonymous release of information that would be damaging to Hillary Clinton” – should actually read “Papadopoulos said to Australian diplomat Alexander Downer that a professor who had traveled to Russia had told him Russia had damaging information about Hillary Clinton and might release it before the election.” This latter version isn’t just a far more accurate representation of what Papadopoulos said; it is also far less suggestive of any wrongdoing. But of course, if there’s less suggestion of wrongdoing there’s also less justification for the FBI to have taken the extreme step of investigating a presidential campaign.
Another technique the Mueller report uses to paint a far darker picture than its evidence establishes – and to indirectly defend questionable decisions by the FBI -- is describing what would otherwise seem to be innocent actions with a raised eyebrow, implying some sort of ill-defined wrongdoing. The special counsel’s team prove themselves masters of that mix of insinuation and innuendo known as insinuendo.
Carter Page – the Naval Academy graduate whom the FBI spied on after it made dubious claims to the Foreign Intelligence Surveillance Court -- is a particular target of this technique. Mueller urges readers to watch a speech Page delivered in Moscow in 2016, which the report describes: “In the speech, Page criticized the U.S. government's foreign policy toward Russia, stating that ‘Washington and other Western capitals have impeded potential progress through their often hypocritical focus on ideas such as democratization, inequality, corruption and regime change.’”
It may be distasteful for an American to criticize his country on foreign soil, but it is hardly unusual and certainly not illegal. The report ratchets up the insinuendo when it reports that after Page delivered his speech at Moscow’s New Economic School, he and then-Russian Deputy Prime Minister Arkady Dvorkovich “shook hands at the commencement ceremony.” All that and more, said with a stern and incriminating tone, and yet Mueller has to write a big however: “the investigation did not establish that Page coordinated with the Russian government in its efforts to interfere with the 2016 presidential election.”
Had the special counsel been less begrudging he might have pointed out that Page was under comprehensive federal surveillance for a year or more. Notwithstanding thoroughgoing scrutiny – secret wiretaps, multiple FBI interrogations, grand jury testimony, questioning by Congress – Carter Page remains unindicted. Not that you would know it given the special counsel’s censorious style.
Insinuendo isn’t just for Page, it’s for anyone the evidence alone is insufficient for an indictment. Take the participants in a State Department-organized conference coinciding with the 2016 Republican National Convention, Global Partners in Diplomacy. Russian Ambassador Sergey Kislyak was one of some 80 ambassadors in attendance. Mueller reports that Trump advisers Jeff Sessions and J.D. Gordon gave speeches. The latter appears to be suspect: “Gordon stated in pertinent part that the United States should have better relations with Russia.” Sessions’ speech was suspect too: He included a Q&A, you see, and one of the questions “may have been asked by Kislyak.” Mueller takes the time and space to include something that “may have” happened, and that if it did would be perfectly unobjectionable. The State Department organized a conference for ambassadors that included a question period, at which an ambassador [may have] asked a question. This is troubling?
The Mueller team uses the same technique with the big picture. After detailing the nefarious actions of the Russians, Mueller writes that “[t]he investigation also identified numerous links between the Russian government and the Trump Campaign.” At last it seems the special counsel has taken out the handcuffs. The “Campaign expected it would benefit electorally from information stolen and released through Russian efforts.” But it turns out that links and expectations are as vague and empty as suggestions and indications. Because just when the special counsel seems ready to stage a perp walk, the frustrated lawman offers a bitter coda: that “the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”
It’s the prosecutorial equivalent of Emily Litella’s “Never mind.”
The Mueller report regularly uses a common variant of insinuendo – spinuendo – when it interprets a situation in the worst light before correcting the misimpression it has created.
Regarding early discussions surrounding a deal that never got off the ground, the report states: “Candidate Trump signed a Letter of lntent for Trump Tower Moscow by November 2015, and in January 2016 Trump Organization executive Michael Cohen emailed and spoke about the project with the office of Russian government press secretary Dmitry Peskov.” It sounds as though Cohen was contacting the highest echelons of the Kremlin. But Mueller knows better and eventually lets us in on the fact that the “office” of Peskov is not synonymous with Peskov himself. In an unamused tone, the special counsel recounts the comedy of crossed wires and garbled email addresses by which Cohen finally got, not Peskov but Peskov’s secretary, on the phone. Cohen made his pitch; the secretary took notes and promised a follow-up that never happened.
Even as he puts the darkest possible gloss on the most pedestrian of acts and connections, Mueller whistles past genuinely alarming information. He sometimes does both in the same paragraph. The report includes an extended section on Paul Manafort’s meetings with his sometime Russian-Ukrainian business associate Konstantin Kilimnik. “Manafort twice met with Kilimnik in person during the campaign period.” This takes on malign implications given that the special counsel introduced Kilimnik back on page 6 with the damning allegation that “the FBI assesses [him] to have ties to Russian intelligence.” We’re told that Kilimnik traveled to New York to see Manafort, a very dire development, no doubt. But then the special counsel finishes the paragraph with the throw-away line that “Kilimnik then traveled to Washington, D.C.” where he “had pre-arranged meetings with State Department employees.”
Isn’t it more startling that someone with “ties to Russian intelligence” is welcome at Foggy Bottom than that he had access to Paul Manafort, who never had any position in the federal government? Part of the answer may be provided by John Solomon in the Hill, who reported that “hundreds of pages of government documents — which special counsel Robert Mueller possessed since 2018 — describe Kilimnik as a ‘sensitive’ intelligence source for the U.S. State Department who informed on Ukrainian and Russian matters.” That important piece of contextual information is not in the redacted report.
Back at the State Department’s Global Partners in Diplomacy event at the GOP convention, the special counsel’s team is sleuthing: “Later that evening, Gordon attended a reception as part of the conference,” the Mueller report reads. “Gordon ran into Kislyak as the two prepared plates of food, and they decided to sit at the same table to eat.” They prepared plates of food together! “They were joined at that table by the ambassadors from Azerbaijan and Kazakhstan,” and by Carter Page, who was still a Trump campaign adviser. “As they ate, Gordon and Kislyak talked for what Gordon estimated to have been three to five minutes, during which Gordon again mentioned that he meant what he said in his speech about improving U.S.-Russia relations.”
It’s a particular prosecutorial skill to take even the most innocuous of events – in this case five minutes of empty happy talk about world peace between bites of buffet-table food – and make it sound pernicious.
But there’s more going on here than just insinuendo. Note the many specifics that go nowhere. Gordon and Kislyak are joined by the ambassadors from Azerbaijan and Kazakhstan. From the moment they are mentioned, they disappear. Carter Page also vanishes after being placed at the same table. Gordon and Kislyak talk not for “a few minutes” but for “3 to 5 minutes.” Why all the trivial particulars? The only thing that could make that paragraph a more perfect example of useless detail employed to prove nothing in particular would have been if the special counsel had managed to learn what each had actually put on his plate. Just imagine: Kislyak served himself 3 to 5 spoonfuls of pesto pasta salad with feta cheese, followed by…
Once upon a time, professors of persuasion frowned on prose cluttered with extraneous detail. Some 120 years ago, John Franklin Genung wrote a widely used primer, “The Working Principles of Rhetoric.” He labeled as “the untutored” writers “to whom it has never occurred that one fact is more important than another; who waste time in fixing some date or circumstance that is of no consequence; who take as much pains with utterly irrelevant details as with essential.”
He would not have smiled on the Mueller team’s efforts.
On the other hand, Professor Genung never had the opportunity to read Ian Fleming, who used obscure and irrelevant detail to create a sense of reality in the midst of spy-story fantasy. In the James Bond novel “Thunderball” Fleming describes the villain’s super-fast yacht as having been built “by the only firm in the world to have successfully adapted the Shertel-Sachsenberg system to commercial use.” Novelist Kingsley Amis wrote that Fleming’s readers “couldn’t care less whether the Shertel-Sachsenberg system works the steering or the lavatory flush.” The point, according to Amis, is to take the “fantastic elements in the story” and use detail, however extraneous, to bolt “them down to some sort of reality.”
The tension between the fantastic and the real may explain why Volume II of the Mueller report descends into arguments among special counsel team factions. They are at odds over whether their enterprise can be saved by bringing the president up on obstruction of justice charges. That argument is likely to continue when Mueller goes to Capitol Hill. Look for special attention to Volume II, section III (B) 2, which offers those eager to pursue impeachment the legal justification they’ve been looking for: “Separation-of-Powers Principles Support the Conclusion that Congress May Validly Prohibit Corrupt Obstructive Acts Carried Out Through the President’s Official Powers.”
While they fight it out, we might want to go back to where the whole thing is said to have begun, the London bar where Papadopoulos and Downer had a drink. For all the special counsel’s attention to detail, he seems to have neglected to mention what the two were drinking that fateful evening.
According to Downer, they each had a gin & tonic. If only they had been drinking Moscow Mules.