Barr and Pence's heads grafted onto a photo of Tenacious D

THAT WAS NOT THE MUELLER REPORT, NO. THAT WAS JUST BARR’S TRIBUTE.

While we know little of the specific findings in the Mueller report, we still can still take some lessons from the experience, although not the ones many had hoped. But first we should review the basics of Mueller’s investigation.

Robert Mueller’s appointment as special counsel to investigate Russian interference in the 2016 election was met with bipartisan support. The investigation was initiated due to facts separate from any partisan spin, such as the assessments by the U.S. intelligence community as to Russian election interference and Trump’s own statements as to why he fired FBI Director James Comey. In fact, Mueller took over an already existing counterintelligence investigation into possible links between Donald Trump’s campaign and the Russian’s actions. Mueller’s investigation spawned several spin-off investigations and indictments, some of which are ongoing. Throughout the course of the matter, Congress launched bipartisan efforts to protect the special counsel’s office, and the investigation resulted in several indictments and convictions. From all of this, we can conclude the investigation was never a witch hunt.

On March 22, 2019, Mueller completed his investigation and submitted a report to Attorney General William Barr. On March 24, 2019, Barr provided a four-page summary of Mueller’s report to Congress, in which Barr indicated Mueller did not find that anyone associated with the Trump campaign conspired or coordinated, i.e., agreed, with the Russian government to influence the election. Noting Mueller found evidence on both sides of the obstruction issues and declined to draw a conclusion, Barr determined that there was not sufficient evidence to establish the president committed obstruction of justice. Despite what various pundits, politicians, and social media memes may say, that constitutes almost all of what the public knows about the report at this point.

NOT A BUG, BUT A FEATURE

To help accept this, we must first recognize some hard realities existing from the outset of Mueller’s appointment. Mueller provided his report to the attorney general Trump appointed, because he was always going to do so, as required by law. If Mueller had submitted the report earlier, he may have delivered it to Rob Rosenstein, as deputy attorney general to a recused Jeff Sessions, or Matt Whitaker, as acting attorney general. Mueller was appointed as special counsel, not independent counsel. According to 28 CFR § 600.8(c), a special counsel must give a report to the attorney general at the conclusion of the special counsel’s work. In addition, the White House, under the law, may exert executive privilege and withhold some or all of the report. Trump’s administration was always going to have first crack at this report.

Trump’s people did exactly what the public should have expected at this stage. Attorney General Barr offered up his short summary of what he thought the report said and concluded, without diving into the actual facts and analysis that lead to those conclusions and without providing the public with the underlying report. The Department of Justice is now combing over the report to determine what portion, if any, the Department will offer up to Congress and to the American people, just as should be anticipated. Given that the investigation’s subject matter likely includes sensitive information relating to U.S. intelligence operations, what Congress eventually sees of the report behind closed doors very likely will differ from what the American people ultimately see, if they see much of anything at all. All of this has been in the cards from day one of Mueller’s appointment.

A photographic portrait of Attorney General William Barr
Attorney General William Barr

IMPEACHMENT WAS UNLIKELY

From the outset, despite the way some folks oversold the investigation, Mueller’s findings were not likely to lead to Trump’s impeachment. Speaker of the House Nancy Pelosi tried to prepare the public for this when she said she was not for impeachment of Trump in a March 12, 2019 interview with the Washington Post. She further warned that the bar for impeachment needs to be very high, “Impeachment is so divisive to the country that unless there’s something so compelling and overwhelming and bipartisan, I don’t think we should go down that path, because it divides the country. And he’s just not worth it.”

To clarify, impeachment constitutes the House bringing charges against a government official, similar to a prosecutor bringing an indictment in court. Unlike a court indictment, the House first has to vote to approve the articles of impeachment before the case can proceed to trial. Things would then move to the Senate, which has the sole power to try impeachments. At no time during Trump’s presidency has it been likely that the GOP dominated Senate would convict Trump. Thus, Pelosi’s reference to needing a compelling, overwhelming, and bipartisan basis to seek impeachment.

The attorney general’s summary suggests that Mueller’s investigation found the evidence supporting claims against Trump or his associates did not rise to that high standard Pelosi cited. Hence, Mueller’s report will not result in Trump’s impeachment. More pundits should have made clear to the public all along the unlikelihood of impeachment proceedings under the circumstances.

CONSPIRACY’S HIGH BAR

To better understand why, it helps to get a grasp on the criminal justice process. Obviously, a lot of facts circulated in the public sphere which suggested that Trump or people working on his campaign conspired or, at least, agreed to go along with the Russian government’s efforts to illegally influence the 2016 presidential election. Similarly, to the public eye, Trump seems to have obviously obstructed the investigation. However, Mueller’s purpose was to determine what the eyes of the law, not the public, were likely to see, and the law is very demanding.

While Barr said Mueller did not find that either Trump or his associates conspired or coordinated with Russian efforts to influence the election, that does not equate to no evidence existing, only that the evidence that does exist does not meet the law’s exacting demands. Mueller’s finding does not prove he was always biased in favor of the president or that no concerning information exists. We don’t know the specifics regarding any of that yet. Neither does Barr’s summary signal a nothing-burger, a witch hunt or a total exoneration. In fact, he admitted evidence exists, including “multiple offers from Russian-affiliated individuals to assist the Trump campaign.”

Americans tend to think in absolute terms regarding evidence in instances like this, in part because the U.S. criminal justice system consists of only two conclusions: guilty or not guilty. In Scotland’s criminal law, there’s a third, i.e., the “bastard verdict”: not proven. Meaning exactly what you think, not proven is when evidence, perhaps even a lot of it, exists but is not enough to convict under the high standards of proof we rightfully apply to criminal cases.

For example, O.J. Simpson was acquitted of criminal charges for the murders of Nicole Brown Simpson and Ron Goldman. That certainly did not mean there was no evidence against him. In fact, there was enough evidence to support finding Simpson liable for damages in the subsequent civil suit for wrongful death. Notably, civil law has a less exacting standard of proof than criminal law, thus evidence insufficient for criminal conviction can still be sufficient to assign civil liability. In the United States, civil claims only need be proven by a “preponderance of the evidence”, i.e., whether it is more likely than not, while criminal charges require proof “beyond a reasonable doubt.”. In the case of Mueller’s investigation, concerning evidence can and most likely does still exist regarding the Trump campaign’s actions.

A photographic portrait of former FBI Director Robert S. Mueller III
Robert S. Mueller, III

It costs money for government entities to file criminal charges and bring a case to trial, and, for the cases like we are talking about, that means a lot of money. Governments weigh the costs of pursuing claims against the likelihood of success and make hard choices all the time, in an effort not to waste the finite resources available to go after criminals, which include not only money, but time, man-hours, and tying up investigatory and judicial personnel. Even if the evidence available seems to point in an obvious direction, that does not mean it can sufficiently meet the elements necessary for conviction of the specific crime and the “beyond a reasonable doubt” standard. All along, Mueller, as an experienced prosecutor, was going to be making that kind of assessment, looking for a slam dunk before bringing a case. Given the admitted existence of supporting information, rather than a complete exoneration, it appears Mueller merely concluded that there was not enough evidence to merit bringing a claim for criminal conspiracy to trial against anyone in the Trump campaign.

One could have also anticipated this conclusion from the outset because conspiracy claims are so hard to prove in court. Mueller had to do more than assess various facts now in the public sphere, such as Roger Stone’s actions in connection the dumps of emails from the Clinton campaign or the DNC. He had to look beyond to determine if there were sufficient facts to connect the dots. As seen from the indictment of Russian individuals, Mueller had evidence that Russians acted in an attempt to influence the 2016 election against Hillary Clinton and in favor of Donald Trump. Events like the June 9, 2016 Trump Tower meeting demonstrate that there were attempts to contact the Trump campaign about those actions. Trump’s July 2016 public comments inviting Russia to hack into Hillary Clinton’s servers shows a potential willingness by Trump and his team to work with Russian on the influence endeavor. Yet, information joining all these pieces of information into an actual conspiracy on the Trump campaign’s part appears to have remained missing, and, without it, there can be no case.

Because they deal with the actions of multiple parties, conspiracy claims have a lot of moving parts. For criminal conspiracy, a prosecutor usually has to establish that two or more people agreed to commit a crime. For obvious reasons, that agreement most likely will not exist in writing. All conspirators also must have the specific intent to commit the crime and must, at least, take steps to forward that criminal objective after the group has agreed to conspire. Finding evidence of the actual agreement and the criminal intent often proves difficult, since both take place in the realm of the individuals’ minds and don’t require any tangible trail. Additionally, prosecutors must prove that invisible agreement and the intent behind it beyond a reasonable doubt. So, a lot of evidence of something nefarious going on can exist, without having sufficient evidence for a court to find that conspiracy actually occurred. This can explain one of the few quotes from Mueller’s report which Barr’s summary provided, in the section on obstruction, “while this report does not conclude that the President committed a crime, it also does not exonerate him”, or, in other words, “not proven.”

AN UNNECESSARY ARRANGEMENT

Mueller’s investigation was also unlikely to uncover sufficient evidence of conspiracy or a coordinated agreement by Trump or his campaign because a conspiracy was unnecessary. The investigation, as we know through indictments and as confirmed by the Barr’s letter, found that the Russians tried to influence the 2016 election through social media efforts and the hacking and publication of DNC and Clinton campaign emails. Neither required the Trump campaign’s involvement in order to occur or bear fruit. Russia reportedly wanted anyone but Hillary Clinton as president, and certainly its social media and hacking activities would have aided that goal, regardless of the Trump campaign’s participation or lack thereof. Likewise, Trump would have received the passive benefit of those actions without his campaign doing anything. Other than a promise of future action from Trump in favor of Russia should he be elected, Russia had no reason to risk illegally conspiring over this. Since Trump would have benefitted from Russia’s actions anyway without doing anything, he had even less reason to conspire.

Americans rightfully question whether some promise of future action from Trump occurred, and Mueller’s findings should not remove the question of Trump as a witting or unwitting Russian asset. President Trump has publicly contradicted and undermined the U.S. intelligence agencies over Russia, delayed or removed sanctions which had originally been imposed against Russia with bipartisan support, and echoed talking points only coming from Russia. However, Russia could influence Trump without needing to conspire with his campaign. Foreign powers can make Trump essentially one of their assets without much effort. Vladimir Putin, former KGB agent and intelligence director, has proven very cagy at manipulating people and has wrangled private meetings with Trump since Trump became president. Via proposed real estate projects, like Trump Tower Moscow, Russian purchases of real estate from Trump businesses, and Russian appeals to Trump’s vanity, Russia’s oligarchy already has plenty of means to encourage Trump to favor it, while never having to do anything illegal. No matter the angle from which we come at this, it was always likely Mueller would not make a finding of criminal conspiracy or coordination against Trump or his associates.

Vladimir Putin (left) and Donald Trump shaking hands at the 2017 G-20 Hamburg Summit
Vladimir Putin and Donald Trump at the 2017 G-20

WORRYING OBSTRUCTION CHOICES

Regarding the issue of obstruction of justice, Barr stated, “the [Mueller] report sets out evidence on both sides of the question.” Facts supporting that charge clearly do exist. However Mueller chose not to draw conclusions from the evidence, and Barr concluded that meant the obstruction question had been left to the attorney general. Feel free to be concerned that Mueller may have succumbed to pressure and bullying tactics by the White House on this issue. Proving obstruction of justice requires evidence of criminal intent. With Trump’s attorneys threatening to fight a subpoena and going on about perjury traps,1 Mueller did not press for an interview with Trump to determine his intent. Additionally, given the special counsel’s purpose to make conclusions regarding the viability of pursuing criminal charges, Mueller’s failure to do so on obstruction has confused several pundits and even former FBI Director James Comey. Worse, Mueller punted the question of obstruction, leaving Attorney General William Barr feeling free to decide the question himself. Trump arguably nominated Barr because Barr previously wrote an unsolicited nineteen-page memo against finding obstruction of justice with respect to Trump. While Mueller’s punting may not be expected, Barr’s conclusions should.

GETTING CONTEXT

To sum up, nothing about what we know of the Mueller report or its conclusions so far should surprise, no matter where one falls on the political spectrum. When the media reviews its coverage of the Mueller investigation, it needs to recognize that many in the American public were, in fact, surprised. In a Washington Post-Schar School poll as recent as February  2019, at least 34% of those polled and 55% of Democrats believed Mueller had already proved the Trump campaign colluded with Russians, even though Mueller has not done any such thing. Prior to the report, Mueller became a symbol of a deliverance from both Trump and divisiveness, complete with merchandising. After the report came out an NPR/PBS News Hour/Marist poll found 31% of those polled and 45% of Democrats were not satisfied with the investigation.   

That portions of the public misunderstood and now are unhappy with the investigation’s results serves as big clue that the coverage by the mainstream and social media perhaps missed perspective. The mainstream media can correctly claim that it’s gleeful reporting of every iota of the investigation was necessary because the public had a vested interest in the topic. The media should also admit that sometimes that coverage was faulty or failed to make clear, with every new scrap of information revealed, just how high the bar for proving such claims actually is. Americans needed not just the facts or how those facts might prove a case against Trump, but also how such a case might fail. Taken all together, the coverage failed to provide adequate context, resulting in a confused and sometimes oversold public.

However, we also need to acknowledge that now is not the time for jumping to conclusions about the details of an unseen report, such as spinning this into a total vindication of Trump or suggesting that a miraculous cure-all to prematurely end Trump’s presidency awaits just over the horizon.

As things stand now, several House committees requested the attorney general turn over the Mueller report to Congress by April 2, 2019. The deadline came and went. Barr said he would provide a redacted version of the report to Congress by mid-April or perhaps even sooner. On April 3, 2019, the House Judiciary Committee voted to authorize subpoenas for the full report. Meanwhile Trump has flipped his position from being in favor of fully releasing the report to saying releasing it would be a waste of time. The public remains in a holding pattern.

We know some evidence does exist, including some concerning facts regarding Trump’s campaign and enough to offer some evidence of obstruction of justice. We know Mueller did not exonerate Trump. Other than that, the American public only has the attorney general’s summarizing take and utterly lacks the underlying context, including the facts and the analysis which gave rise to Mueller’s assessments. Despite pundits going on in detail about what this all means, in truth, we don’t know and can’t really assess squat yet. Much still lies in “not proven” limbo.

Which means, in this present moment, we have to wait. We should certainly clamor for more information, regardless of where we stand on Trump. Without context, Barr’s summary of Mueller’s report is horribly incomplete. Those supporting Trump should be seeking the report as further proof of how much Trump’s opponents have gone overboard and of how unfairly accused Trump has been. For those who oppose Trump, an administration which misled and lied about data previously should not be trusted to accurately present such crucial and potentially damaging information about itself. Whatever evidence exists should be made public, even if it is not deemed sufficient to bring criminal charges. Trump’s campaign was one of the least transparent in modern history. As the 2020 election approaches, the public is owed some transparency from Trump now to do with as they will, just as they did with the Democrats’ emails during the 2016 election.

Seal of the United States Department of Justice
Seal of the United States Department of Justice

The Department of Justice, at the very least, needs to release enough of the report to show the work that lead to the conclusions. The DOJ must also clearly demonstrate for the American public how the evidence doesn’t connect enough dots to make up a conspiracy claim or merit determining obstruction of justice. The DOJ should use this chance to educate the American people on the law at issue, if citizens are to have a chance at accepting that this is a sound decision instead of more partisan bullshit. The DOJ also needs to remember that some of the facts are already out there, causing the public to reasonably question how no negative finding of some sort could be made. The DOJ has a duty to Americans to be transparent too. This should not be difficult, if the conclusions by Mueller and Barr truly are supportable. Furthermore, the current administration should support the DOJ doing this, as it will further aid the president’s position in a constructive, rather than divisive, way, even if the needle of public sentiment will not move much at this point.

From all of this, we can, at least, get a better understanding of criminal investigations and the disappointing difficulties in pursuing white-collar crime, in addition to better assessing how investigations of this nature may play out. At the moment, the public does not have the Mueller report, just Barr’s summary. The American people will just have to exercise patience and wait a bit longer before they can learn anything more definitive from Mueller’s investigation.

Footnotes

  1. Perjury means lying under oath.  It is not a perjury trap simply because Trump cannot stop lying whether he speaks under oath or not.

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