What the Mueller Reports Says...and Not

For anyone wanting a clear ending and definitive Hollywood ending and answer in the Mueller
investigation of Russian interference in the 2016 US elections and the role Trump and his campaign had in colluding with them, they will be disappointed.   The final report, based on the US Attorney General’s four-page summary, offers something for everyone, assuring that for now that the issues raised in it will live on into the 2020 US presidential election.
When Robert Mueller was brought on as special investigator, he was given a narrow mandate to determine whether Russians sought to interfere with the 2016 US elections.  On that matter Mueller was definitive–yes.  That conclusion alone is significant because it will have a potentially major impact on US-Russian Federation relations, including putting pressure on Trump to take a harder line toward Russia and Putin.  With members of Congress–both Democrats and Republicans–wary of Trump’s soft approach toward Russia, this part of the report may well unite them in legislation that will go against the president.
If one were to end the report about Russian interference that would cover the core of the Mueller investigation and what it was mandated to investigate.  But the report also looked at whether Trump or his campaign colluded or aided and abetted this interference. Again Mueller reaches a definite answer–no.  It is possible that Trump and his associates did several things to help themselves financially, but as a matter of law they not commit acts that broke the law.
The third issue is whether Trump obstructed justice and the Muller investigation.  Here the report finds evidence on both sides, declaring that the investigation neither proves nor exonerates him.  The reason, presumably, hinges on the nuances of American law which requires proof both that someone engaged in certain acts and they did so with the appropriate mental state of mind or intent.  Here, one can speculate that Mueller found that Trump had done certain acts but could not determine whether his act rose to the level to prove intent of obstruction. Mueller threw this to the Justice Department and regular prosecutors to make that call and they said no. 
This is the point where the politics will kick in.  Democrats will demand the full report and want to talk to Mueller and Justice Department officers to determine if they made the right call.  This  review of conclusions, while entirely legitimate, is wrapped into the middle of partisan politics and a 2020 election that has already reached conclusions on Trump’s behavior, regardless of what the report said.  Mueller, in leaving open the obstruction question, and in the Attorney General not releasing the final report yet, guarantee that the investigation and final conclusions will not go away in terms of issues. 
But whether the Democrats should continue to dwell on it versus move on to other matters is also a good question.  The Democratic Party base will not let this matter go and they were counting on a clear answer of Trump guilt or culpability to help them in 2020.  They did not get that.   Democrats now need to move on to substantive issues to unite them and not simply run against Trump.  Conversely, for Republicans and Trump, the report also guarantees the problems will persist.  It only addressed a narrow set of issues, leaving open other questions about Trump’s business dealings and other matters which are still the objects on other congressional and criminal prosecutions.
Overall, the Mueller report itself, while definitive in what it was supposed to investigate, will hardly be politically definitive and it leaves open many issues unresolved.

The (Carlson)-Wellstone Rule: What if Keith Ellison Quits the Attorney General race?

Please note:  I made a few changes in this blog:  Specifically, state law does not allow Ellison to simply  abandon his candidacy.  Please read below.


The Minnesota DFL are worried about Keith Ellison.  In the Thursday, August 16, 2018 press conference DFL Party Chair Ken Martin said he supports Ellison "at this time," but also indicated that he is concerned about the domestic abuse allegations and is investigating.  What happens if Ellison’s candidacy is no longer viable and he needs to be replaced?  History and law take us to the Carlson-Wellstone Rule, formulated in 1990 and then 2002 to address the replacement of candidates who had party nominations.

In 1990 the Republican Party selected Jon Grunseth to be its gubernatorial nominee over  Arne Carlson both in the convention and primary.   However on October 14, 1990,stories emerged in the general election that he and several of his friends had a nude swimming pool party that included Grunseth’s daughter and friends.  Allegations also emerged that he had an extramarital affair.  Pressure mounted and he was eventually persuaded to leave the ticket.  The Republican Party sought to substitute Arnie Carlson on the ballot, Democrats went to court challenging it.

          Even though the law was unclear on what to do, Minnesota Supreme Court Justice Sandy Keith (who was appointed by then current DFL governor and gubernatorial candidate Rudy Perpich), allowed for the Republican Party to substitute Carlson for Grunseth, ruling that it would be the right thing to do to let the voters have a choice.  The Court also rejected efforts by Grunseth’s running mate Sharon Clark to force the party to make her the nominee, Clark v. Growe, 461 N.W.2d 385 (Minn. 1990).  Finally, in a side note, while the Grunseth problems were mounting then Senator Rudy Boschwitz  was worried about how these problems could explode and hurt him. He approached Grunseth and  promised to cover his expenses if he withdrew.  When Grunseth left the race, he asked Boschwitz to  pay up and when he did not Grunseth sued him in Court for breach of contract.  In Grunseth v. Boschwitz, a district court ruled the contract unenforceable because it violated Minnesota Statutes §211B. 10, making it illegal to “reward or promise to reward another in any manner to induce the person to be or refrain from or cease being a candidate.”

In 2002   Senator Paul Wellstone’s plane crashed, killing him on October 25, 2002, just eleven days before the election.  The DFL Central Committee met and replaced him with Walter Mondale who then lost to the Republican nominee Norm Coleman.  Among the legal battles” in this case was over the allocation of absentee ballots and votes already cast before Wellstone died.  In Erlandson v. Kiffmeyer, 659 N.W. 2d 724 (2003), the Minnesota Supreme Court ruled that those who had cast their absentee ballots and wanted to change their votes could request a new ballot and revote.

The importance of these two substitutions leads to what can be called the Carlson-Wellstone rule, codified in Minnesota Statutes §204B.13.  For a partisan office such as governor, a vacancy in a nomination occurs when a candidate dies or is declared ineligible to run for office by a court.  If that occurs,   §204B.13 allows for the party according to its rules to substitute a candidate.  In the case of a gubernatorial candidate it is replacing, the substitution includes also the lieutenant  governor.

So how does all this apply here to Keith Ellison?  Assume pressure continues to mount over allegations of domestic abuse involving Ellison.  He is the DFL’s nominee for attorney general.  State law does not allow the party simply to oust him and replace with someone else.  Ellison cannot simply give up his candidacy.   He could of course move out of state and be declared ineligible to run, but short of being declared ineligible  neither Ellison nor the DFL can do much to get him off the ballot.  If the DFL were to offer him something of value to try leave the race they and Ellison would be violating  §211B.10.

 If Ellison were to simply abandon his candidacy, another scenario emerges.  State law does not currently allow him to do this.  However, it is possible the DFL Central Committee or another designated group of party officials, according to their bylaws, could select a replacement.  There is no requirement that the DFL would have to pick Matt Pelikan, the convention-endorsed candidate, or any of those who had run for attorney general in the primary.  In effect, they could even select Lori Swanson to be their nominee.  The DFL could then try to argue that who the party nominee is, is a matter of internal party rules and therefore sue the state and challenge the law preventing an Ellison substitution.  There is mixed jurisprudence coming from the US Supreme Court regarding whether  such an "internal party matter" issue would prevail here, but this is a possible argument.  This suit would be part of an "error and omissions" suit under state law to correct the ballot.

Whether it comes to all this is anyone’s guess.  However, the Carlson-Wellstone rule outlines the way the DFL could try to replace Ellison.