William Barr’s missive purporting to briefly summarize Special Counsel Robert Mueller’s report was, as the Washington Post pointed out, mischaracterized by cable news. Given the language of Barr’s carefully lawyered letter, this is somewhat to be expected. But it’s also immensely damaging to the rule of law.
So, let’s dispel three of those myths.
Myth No. 1: Mueller found no evidence of collusion. (Wrong, wrong, wrong.)
Regrettably, “[a]ll three major news networks were consistent in saying that the special counsel found no evidence of collusion between President Trump’s campaign and Russia during the 2016 election.” Both CNN and MSNBC heralded that “TRUMP CLAIMS ‘COMPLETE AND TOTAL EXONERATION’” on Russia. Fox claimed “MUELLER PROBE FINDS NO PROOF OF COLLUSION.” This is wrong as a matter of law and as a matter of fact.
Barr did not say there was no evidence of collusion. Quoting Mueller himself, Barr reported that “the investigation did not establish that members of the Trump campaign conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election” (emphasis added). What this means is that Mueller collected lots of evidence, but what his team found was not enough for a slam-dunk criminal conviction of anyone else.
I say “of anyone else” because Mueller already found sufficient evidence to prove to a jury beyond a reasonable doubt that Russians conspired to interfere with the 2016 U.S. presidential election. Those conspiracies are set forth in painstaking detail in two existing indictments from the Mueller grand jury. (I encourage you to read them both.)
The first conspiracy indictment was issued in February 2018, charging a number of Russian entities and individuals with conspiring to defraud the United States by “posing as U.S. persons and creating false U.S. personas” in order to “operate social media pages and groups designed to attract U.S. audiences [and] reach significant numbers of Americans for purposes of interfering with the U.S. political system, including the presidential election of 2016.”
The second conspiracy indictment came down in July 2018, accusing Russia’s military intelligence agency (known as the GRU) and other Russians with a conspiracy to hack “into the computers of U.S. persons and entities involved in the 2016 U.S. presidential election, steal documents from those computers, and stage releases of the stolen documents to interfere with the 2016 U.S. presidential election.”
That Mueller decided not to add more people to these conspiracies is not a sign that he found no evidence of collusion. That’s not how criminal investigations and prosecutions work.
Prosecutors walk away from troubling cases all the time—not because the subjects are squeaky clean, but because they don’t believe they can win a conviction at trial. In this case, a lot of the evidence bearing on the Russian conspiracies is presumably still in Russia. With the exception of one Russian entity, none of the defendants in these two indictments have appeared in an American courtroom. Mueller does not have access to their testimony. He can subpoena information from them, but he has no way of enforcing those subpoenas so long as the defendants are in Russia.
What the Barr letter reveals is that the evidence Mueller did find (such as emails and other communications between Russians and the Trump campaign, for example, including the June 2016 meeting at Trump Tower in New York to obtain “dirt” on Hillary Clinton) was simply not enough to prove a conspiracy case against any American. But that’s a far cry from a definitive finding of no evidence whatsoever of Russian “collusion.” Which is precisely why Congress and the American people need to see the full Mueller report—as well as the stockpile of underlying evidence supporting it (law permitting).
Myth No. 2: Questions surrounding Trump’s cozy relationship with Putin are now laid to rest. (Also wrong.)
The Mueller investigation began not as a probe into Trump personally, but as an FBI counterintelligence investigation into the oddly unconventional Russia-Trump relationship. The Barr letter zeroed in on two aspects: the hacking of Clinton campaign and Democratic National Committee email servers, and the social media disinformation campaign—both of which were spearheaded by Russians as explained in the two existing conspiracy indictments.
Without more data, serious questions about Trump’s ties to Russia remain unanswered. Those questions are not about the 2016 election. They have to do with core issues of national security.
For example, the Barr letter does not address:
- Why so many people lied to investigators about their communications with Russian officials (including former Attorney General Jeff Sessions and former National Security Adviser Michael Flynn, to name two prominent examples);
- Why Trump publicly lied about his negotiations with Russia to build a Trump Tower in Moscow during the campaign;
- Why Trump confiscated his interpreter’s notes from a private meeting with Putin;
- Why Trump is so solicitous of Putin in contrast to his antagonistic approach to American allies such as Canadian Prime Minister Justin Trudeau;
- Why Trump tried to lift sanctions on Russia in the wake of the public announcement that America’s electoral process had been attacked by the Russians; and
- Why Trump’s campaign chair, Paul Manafort, shared internal polling data with a suspected Russian asset.
The Barr letter does not even indicate whether Mueller investigated these and other questions, let alone reveal what conclusions—if any—Mueller drew from these known facts in addition to the other information he uncovered in the course of his two-year probe.
In short, all-things-Russia is not over for Trump.
Myth No. 3: Obstruction of justice requires proof of an underlying crime. (Nope.)
Legal scholars and historians will debate for years the propriety of Barr’s decision to make a call on whether Trump obstructed justice where Mueller apparently could not. Structurally, the entire point of appointing Mueller was to avoid the inevitable conflict of interest in having someone answerable to Trump in charge of making that decision. If the historical DoJ guidance that a sitting president should not be indicted is to be respected, then any post-Mueller determination on obstruction belonged with Congress—which has the impeachment prerogative—not a political appointee of Trump himself.
Fortunately, Barr’s words resound less loudly than those of Mueller himself which, according to the letter, provide that “while this report does not conclude that the President committed a crime, it also does not exonerate him.”
Follow me here: This means that Mueller found evidence to support a conclusion that Trump obstructed justice in violation of federal criminal law. Much of that evidence is already public. But Mueller could not comfortably determine whether that evidence passed the slam-dunk test needed for a conviction beyond a reasonable doubt—setting aside the constitutional wrinkle facing Mueller over whether Trump could be indicted in the first place.
Barr goes on to state that Mueller’s conclusion regarding Russian conspiracies, “while not determinative” of obstruction, “bears upon the President’s intent with respect to obstruction.” Legally speaking, this gets confusing.
As the letter explains, obstruction requires proof of three things: obstructive conduct (e.g., lying about pertinent facts, threatening prosecutors, or intimidating witnesses), a nexus to a pending proceeding (e.g., a criminal investigation, such as the Mueller probe), and corrupt intent. What Barr is suggesting is that corrupt intent is hard to show unless prosecutors can also show that the obstructing person aimed to interfere with a proceeding in order to avoid being caught for another underlying crime.
But that’s not what the law requires. The federal obstruction of justice statutes forbid the intentional interference with a proceeding, full stop. The law doesn’t really care why a person intended to interfere—just that the intent exists. Accordingly, there are plenty of published cases in which people were convicted of obstructing justice without proof that they also committed a crime that they were trying to cover up by virtue of the obstruction.
This stands to reason—we as a society don’t want people mucking around in criminal or congressional investigations just for fun any more or less than we don’t want them doing it in order to evade liability for some other crime. Barr admits as much in his letter.
The problem for the rule of law more broadly is this: Barr’s letter is written for lawyers, not regular people. As attorney general, his job is to serve the interests of every American—including the millions who do not understand the weighty implications of this historic document. Thus, to not come forward with a full and complete explanation of what Mueller does—and does not say—in the report would be an abomination.
I, for one, expect Barr to do the right thing.