The Durham Report, the Mueller Report, and how to read them in context

 Consider the Durham Report and the Mueller Report.  I propose that they are inverses of each other, in the following sense.  One can examine the findings themselves, and the lead investigators' presentations of those findings.  Robert Mueller presented damning findings in such an understated way as to create a disjoint, in which the news-consuming audience-- even those who are not entirely in the Republican informational bubble-- believed that Trump had been largely exonerated on matters related to Russia.  While it is true that Mueller's most damning findings related to the obstruction charges, that is more a function of the bar for conviction under obstruction compared to the bar for conviction under conspiracy law.  In contrast, John Durham found a set of mistakes-- and anyone committed to truth must acknowledge what Durham found-- yet instead of interpreting what he found through the cautious, legalistic and dry framework used by Mueller, Durham turned the document itself into a piece in which the headlines were more than the text rather than less.  Inverses.

Let us begin by returning to the scene of the dumbest crime.  You can never return to the scene of the perfect crime, but this one?  This ain't Concrete Blonde, this is The Eagles, and like The Dude, I hate the fuckin' Eagles, man.*  The Russia hoax.  Witch hunt!  No collusion!  No collusion!  I suppose, of course, that I just committed plagiarism by not putting quotation marks around that.  I was quoting.  I was quoting Bill Barr.  After Mueller submitted is report to Barr, Barr rushed to a press conference to repeat those Trumpisms, which turned out to be 1) not what Mueller wrote, and 2) so far from what Mueller wrote that Mueller wrote a letter of protest, because Mueller played hard ball.

By the standards of pre-school recess.

What did Mueller actually find?  Aside from a lot about Russian interference in the 2016 election, which was really his main charge, and aside from all of Trump's obstruction of justice, which he could not prosecute because of the DoJ policy on not charging a sitting president, he found a lot that meets any reasonable interpretation of "collusion," but since there is no crime called, "collusion," what he found was insufficient to meet the threshold to convict anyone under conspiracy law.

Consider two of the most important examples.  The most widely known was the so-called "Trump Tower" meeting, in which Don Jr. and Paul Manafort accepted a meeting with a Russian agent after the Russian agent promised dirt on Hillary Clinton.  Don Jr. even wrote an email acknowledging that he was excited by the promise of dirt on Clinton from Russia.  ("I love it.")

The meeting did not turn out that way.  What does that mean, legally?  Actually, nothing.  Junior was not supposed to accept that meeting.  He was supposed to report it to the FBI.  Failure to do so is legally problematic.  Getting the gang together to take the meeting in the hope that they can work with the Russians to defeat Hillary Clinton is what we call, in colloquial terms, "collusion," and potentially in legal terms, "conspiracy."  The fact that no information on Clinton was forthcoming has no bearing on whether or not Donny Jr. violated conspiracy law.

What did Mueller have to say?  This is where the provisions of conspiracy law come into focus, and why it is so important to understand the difference between

HUNTER'S LAPTOP!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Sorry, it appears that Jim Jordan hacked my blog.  Where was I?  Oh, right.  Don Jr.  Why did he not get charged under conspiracy law?  It was actually hilarious, and here, I'm just going to quote from Mueller:

"The Office determined that the government would not be likely to obtain and sustain a conviction for two other reasons: first, the Office did not obtain admissible evidence likely to meet the government's burden to prove beyond a reasonable doubt that these individuals acted "willfully," i.e., with general knowledge of the illegality of their conduct; and, second, the government would likely encounter difficulty in proving beyond a reasonable doubt that the value of the promised information exceeded the threshold for a criminal violation," (page 186 of the Mueller Report).

Let's unpack that, because it is very different from NO COLLUSION NO COLLUSION!!!  There were two reasons Bobby didn't make Junior do a perp-walk for the Trump Tower meeting.  First, since it was a vague promise of information from the goddamned Russkies (remember when Republicans knew that the Russians were the bad guys?), there was no way to put a dollar value on what Junior thought he was going to get, and if it was sufficiently low-value, it could come in at a threshold below criminality.  A bit of a technicality, but technicalities matter.  That is far from NO COLLUSION, but it affects the likelihood of getting a conviction.

The funnier part by far is the first reason.  "Willfully," by the legal definition.  Stripped of legalese, Bobby called Junior a fuckin' retard.  Junior was too stupid to know that it is illegal to conspire with a foreign government, and the trick with conspiracy is that in order to convict someone under conspiracy law, you have to prove that the crook knew it was illegal.

Consider drug trafficking.  Actually, don't consider drug trafficking, but think about how the law works.  You cannot import heroin and then escape conviction by being so goddamned, fucking stupid that you can plausibly say to the jury that you didn't know it was illegal.

Conspiracy law actually does work that way.  If you actually are so goddamned, fucking stupid that you don't know that it is illegal to have secret meetings to collaborate with a foreign, hostile power and accept something of electoral value in order to work towards your common US electoral goals, then really, you just imported heroin and got away with it on the stupidity defense.  The Russians didn't actually give Junior the heroin, but that wasn't Donny's defense.  His bugfucked brain was.

Yes, really.  Go read that Mueller quote again.  Donny got away with it because he was too goddamned fucking stupid to know any better.  And Manafort?  We will turn to him momentarily, but remember that he was in hotter water than a Maine lobster.

Do you notice how different that is from Bill Barr parading in front of the cameras, with Trump's hand up his ass, to mouth "no collusion?"

OK, Paulie, your turn.  Paul Manafort got a proffer agreement and wound up violating it in the process of the Mueller investigation, but we'll get to that.  One of the most important subplots was that Manafort-- Trump's campaign head-- had a meeting with a Russian spy named Konstantin Kilimnik, and during that meeting, we know that Manafort handed over Trump's internal campaign survey data and strategy information.

We know this.

Why would Kilimnik want this?  We know that Russia was running a disinformation campaign through the GRU, and the information provided by Manafort would help.

But did you notice that this is an inference?

What we do not know is precisely what Kilimnik did with Manafort's documents.

Because Kilimnik is a goddamned, fucking Russian spy.  Who was having secret meetings with Trump's campaign manager.

NO COLLUSION, NO COLLUSION!!!!  HOAX, WITCH-HUNT!!!

Kilimnik met with Manafort, took the reports, and then... because Kilimnik is a Russian spy, we don't have legal proof of the next step.

What did Mueller say about how conspiracy law works?  Convicting Manafort under conspiracy law would have required that.  We would have needed that impossible information.  We would have needed to know exactly what Kilimnik did with the Trump internal campaign data.  Without that, a conviction would be impossible.

That's how impossible it is to convict anyone under conspiracy law.  Mueller would have needed a Russian spy to flip and testify on what the GRU did on the other side.  Does that sound like, as Barr repeated, "no collusion," or a gap between collusion and the legal threshold for conviction under conspiracy law?

And while we are on the subject of Manafort, Mueller had Paulie dead to rights, with a proffer agreement.  Manafort was required to answer all questions.  Mueller asked Paulie why he handed those internal documents to Kilimnik.  According to the Mueller Report, what did Manafort say?

Manafort refused to answer, in violation of his proffer agreement.

And then he was pardoned by Donald Trump.

NO COLLUSION, NO COLLUSION!!!

Yeah, that's not what happened, and that's not what the Mueller Report said.  Robert Mueller could not prosecute anyone under conspiracy law because the threshold for conviction under conspiracy law is so high that the law may as well not exist.  You may as well demand 100% certainty, thereby allowing a defense attorney to get all clients acquitted by arguing solipsism.  Conspiracy law is almost that high a threshold.

Yet how did Mueller write the report, and how was it presented?  Barr had a lot to do with the latter, of course, but Mueller did not write the report in a way that was intended to generate headlines for the shit that he found but couldn't prosecute.

At the time, it was quite frustrating.  Donald Trump was and is, by far, the most corrupt politician in American history.  It is not close.  Yet if your conclusion is that you have insufficient evidence to bring charges, writing a report in which you politically excoriate a target of your investigation, having not brought charges, would be somewhere between irresponsible and just plain douchey.

See:  Durham, John.

So let us turn to the mathematical inverse of Robert Mueller, John Durham.  Not all mathematical functions are invertible.  Some are.  Mueller can be inverted.  When you invert him, you get John Durham.  Robert Mueller was allowed to get sufficiently old, mature, and hence long in the tooth that there was plenty of material to invert, surgically.  OK, I guess I went there.

So Donald Trump grabbed John Durham-- the inverted Robert Mueller-- because when you are President, they let you do that.  The result was this thing.  What did Durham find?

In terms of successful prosecutions, not much.  We do not talk much about Mueller's conviction rate because he never got the big fish, and Trump pardoned the medium fishies, but Mueller did get a bunch of people.  Durham got the GOP all hot and bothered, and for their purposes, he got their rocks off.  So yes, he is "real."  [I'm gonna get myself in so much trouble for this, but I do not know with whom.]  But he couldn't get any convictions.  (One guilty plea, and some blundered attempts.)

Let us consider, though, what we learned from Durham.  Did we learn much beyond what was already in the public sphere?  Not much of value.  We already knew that most of the Steele dossier, fun as it was, turned out to lack support.  We already knew about the funding behind it.  We knew about Papadopulous.  The primary failings of the FBI throughout the investigation-- Strzok & Page notwithstanding-- were insufficient skepticism about information provided to them at the early stages.

And you know... that's true.

Donald Trump is a frustrating creature, for many reasons.  He is so corrupt that when presented with nearly any charge, we cannot discount it.  If I told you that I had a video of him raping Ivanka, what would your reaction be?  Would it be, that cannot be, because Donald would never do that?

Of course not, because any objective observer puts the odds of that having happened at somewhere notably higher than zero.  100%?  Nah, but not zero!  And hell, if she had brains, the serendipity to get a recording, and the cold calculation, she'd just use it and bilk daddy for all she can get.

Which she is doing anyway, cold-blooded Trump that she is.

So if I told you I had such a recording, your first reaction would really just be to wonder how I got it, and not someone with access.  If it leaked, and you had to decide whether or not it were a deepfake, how would you put those odds?

You see the problem?

Donald Trump is so vile, in the open, and so corrupt, in the open, that it is difficult to maintain skepticism about even something like the golden shower tape allegation in the Steele dossier.  It is almost certainly bullshit, but with someone like Trump, you just cannot throw it out on the absurdity of the allegation alone.  For anyone other than Trump, you could.

But not for Trump.  And that's the problem.  Donald Trump is different.

He is worse.  He is more dishonest, and generally speaking, a lower life form.

But that doesn't mean he committed any particular thing.

And that's the legal challenge.

What did that mean for the FBI?  The thing is, the FBI should have been more critical, and more skeptical than a schlub like me, and they didn't do their jobs very well.  The bulk of the real findings from Durham are points along the way where the FBI had reason to say that a specific charge was a wild goose chase.

Look, it is fun, and vaguely satisfying to go through life assuming that Donald Trump has a secret dungeon where he has an Obama look-alike whom he has paid to stay chained up for a variety of abuse while he rapes a 13-year-old surgically altered to look like Ivanka at that age.  Maybe "fun" isn't the right word, as that got creepier with each letter.  Besides which, he has probably swapped out the Obama lookalike for a Pence lookalike on a gallows pole.

Still, Trump is such a piece of shit that it is impossible to disregard any allegation about him, no matter how absurd or vile.

But the FBI cannot work that way.  And they fucked up some things.

Yet here is where Durham went wrong.  Where he inverted Mueller.  Mueller had a lot, but came just short of crimes for which he could secure conviction under the high threshold of conspiracy law, and understated what he had in a document written in legalese.  Durham had much less, finding essentially carelessness and sloppiness, but none of the malfeasance of which the Feds were accused, and wrote a report claiming that the whole investigation should have been scrapped.

Consider two hypotheticals.  Suppose that the Feds had charged Trump or anyone else when all they had was the Steele dossier.  They'd have gotten their asses handed to them in court, and the accusation of persecution on the basis of thin-to-absent evidence would look absolutely justified.

But they didn't do that, and you can tell by whom the Feds prosecuted in the Russia investigation, and their actual conviction rate.  (Compared to Durham's conviction rate of... [checks math]... zero.)

So let us consider the other hypothetical.  Suppose the Feds actually had declined to investigate.  The problems are threefold.  First, the way that a law enforcement body decides whether or not to bring charges is with an investigation, not by refusing to investigate based on Durham's post-investigation hindsight.

Second, Russian election interference was real, as Mueller's investigation proved, and he got the goods/convictions.

Third, in such a case, democracy requires an investigation and a report, not shutting it down to prevent any potentially politically damaging facts from coming to light.

Like the Manafort-Kilimnik meeting.

Hey Paulie!  What was that about?  Oh, right.  You violated your proffer and refused to answer that question.  I guess it's all fine, though, when the big man pardons you as a reward.

So yes, the Feds needed to investigate, even if they needed more caution and less credulity in their process.

The problem of reading Durham, then, is the challenge of separating what he actually found from his frothing and hyperbole, in contrast with Mueller's bombshells and Ben Stein-like affect.  If you look closely, there is value in Durham's report.  You just have to look past the headlines.

But I suppose he had that in common with Mueller, so there's that.

Let's have some badass music.  I loved Concrete Blonde.  "Scene of the Perfect Crime," live.  The quality of the recording is not great, but I suppose that happens with such bands.  The original version is on Free, which preceded their wondrous one hit, "Joey," from Bloodletting.  When I first heard the term, "alternative rock," I didn't know they were talking about this new thing called "grunge," which wasn't even really defined at the time.  I thought of Concrete Blonde.

I cannot emphasize enough how cool James Mankey is, but he is a little like Jeff Beck.  If you don't play guitar, you might not catch everything he does.  In that case, there's still Johnette.

*Don't ask me if I can play that song on guitar.  I plead the Fifth.  I cannot play like James Mankey, though.