No Collusion. No Exoneration.

The failure to indict is not a finding of innocence.
March 24, 2019
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At this point, it seems almost churlish to point out that we have not actually seen the Mueller report. What we do have is a letter from Attorney General William Barr that makes at least two things clear: Mueller did not establish collusion or conspiracy between the Trump campaign and Russia, but he also pointedly declined to exonerate Trump from charges that he engaged in the obstruction of justice.

The decision not to charge Trump with obstruction was made not by Mueller, but by Trump’s appointees: Barr and Deputy Attorney General Rod Rosenstein. Mueller’s report lays out the arguments on both sides, but “ultimately determined not to make a traditional prosecutorial judgment.”

Mueller apparently felt strongly enough about this point that he said, “while this report does not conclude that the President committed a crime, it also does not exonerate him.” [Emphasis added]

This, of course has not stopped Trump from claiming “complete and total EXONERATION” even though the report explicitly says the opposite. Which leads to the first takeaway:

*We still live in Alternative Realities. Even though the report is being greeted with triumphalist glee from TrumpWorld and palpable disappointment from his critics, it will solidify us as a nation with Two Narratives: Trump will claim complete vindication, while critics will seize on the ambiguity about presidential obstruction of justice. Don’t expect the needle to move much, if at all.

*Obstruction was always the greatest threat to Trump. Mueller’s pointed refusal to exonerate the president from a criminal charge – and an impeachable offense – now shifts the venue to Congress. As Ben Wittes noted, the failure to indict is not a finding of innocence; and Congress need not apply the same standard to “high crimes and misdemeanors” that the Department of Justice applied to the prospect of criminal prosecution. Barr’s letter suggests that Mueller’s report lays out “evidence on both sides of the question.” That narrative will make for very interesting reading as Congress begins its own investigations. Many of his efforts to derail the investigation took place in broad daylight, including firing the FBI director and browbeating the attorney general. Did it also include dangling pardons? Implicitly threatening witnesses? What else might be included in the report?

*Mueller wasn’t the savior that many of Trump’s critics wanted. His report ends nearly two yearsof fantasizing that Mueller would be a political/legal Deus ex Machina, who would save our political, cultural, and constitutional bacon. He didn’t, and it was unrealistic to expect that he would have. So, once again, it’s up Congress and the American public to police the borders of acceptability. Democracy is going to have to save itself.

*There was no witch hunt. By one count, Trump has accused Mueller of engaging in a “witch hunt” 183 times. His surrogates have relentlessly attacked the probe and Mueller. Watch them suddenly embrace its integrity over the next few days, at least until we get to the see the full text of the report. Expect no apologies. (It will also be interesting to watch critics on the left, who had embraced Mueller, now turn on him, highlighting his failure to interview Trump or Donald Jr.) All the evidence suggests that Mueller performed his duties with the utmost diligence and integrity.

*The devil is still in the details. Remember, we have only Barr’s summary, not the actual investigative report. Given the Trump-friendly conclusions of the report, there should be little opposition to releasing the whole thing, right? Only the report can fully answer the question of what happened with Russia’s attempt to influence our election. As Ben Wittes noted, Congress still needs to answer some questions: “What happened? Who did what? And what does Congress want to do about it legislatively, if anything? A criminal investigation is not about telling a story, much less is it about providing a record for legislation.”

But, wrote Wittes, Congress “vested in an executive branch official the principal authority to investigate the president—having done so knowing that this official cannot indict the president.” The only action Mueller could have taken was to issue this report, so “the report becomes everything. It becomes the only mechanism by which you can figure out why the investigation is over.”

* Even with the finding of “no collusion,” this could make for uncomfortable reading based on what we already know about Russian interference. As David Frum wrote:

It’s not a theory but a matter of historical record that Vladimir Putin’s Russia hacked American emails and used them to help elect Trump to the presidency.

It’s not a theory but a matter of historical record that agents purporting to represent Putin’s Russia approached the Trump campaign to ask whether help would be welcome, to which Donald Trump Jr. replied, “If it’s what you say I love it…”

It’s not a theory but a matter of historical record that Donald Trump publicly welcomed this help: “I love WikiLeaks!”

Mueller concluded that this did not constitute a conspiracy, but it is now up to Congress and the public to render judgement on the president’s conduct.

*There are still so many unanswered questions: If indeed there was no collusion, why all the lies? What were all those meetings about? What was Paul Manafort really up to? And what were the actual connections between TrumpWorld and WikiLeaks? Why did Mueller choose not to interview Trump? What role did the negotiations over a Trump Tower in Moscow play in the campaign? And we still do not know why the president of the United States fawns on and kowtows to Vladimir Putin.

*The blowback against the Trump critics, will be… intense. You can already see it on social media, but Mueller’s finding of no collusion will have long-term consequences, especially for the media. As the New York Times’ Peter Baker noted, the release of the report will be a “reckoning for the President, to be sure, but also for Robert S. Mueller III, the special counsel, for Congress, for Democrats, for Republicans, for the news media, yes, for the system as a whole.” Indeed it will be.

Trump will use the report as cudgel to pound away at “fake news,” and cast doubt both on the media’s reporting and on the other ongoing investigations. His supporters will be emboldened and they are on a mission to discredit all of  Trump’s critics. Whether you like it or not, Mueller’s report will give them fodder.

*As Winston Churchill once said: “Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning.” Congress has its own role; so does the public. And Trump’s legal problems are far from over. Other investigations are looking into his various entities, including his business, his inaugural organization, and his foundation. As Baker notes:

Federal prosecutors in New York have already implicated the president in a scheme to violate campaign finance laws by arranging hush payments to keep two women from publicly discussing their claims to have had extramarital affairs with Mr. Trump before the 2016 election, affairs he has denied.

Mr. Trump has also been accused of cheating on his taxes, violating the Constitution’s emoluments clause barring a president from taking money from foreign states, exaggerating his true wealth to obtain bank financing and other offenses. The sheer volume of allegations lodged against Mr. Trump and his circle defies historical parallel, possibly eclipsing, if they were all proved true, even Watergate, the nonpareil scandal of scandals.

But at least we are done waiting for Mueller.

Charles Sykes

Charlie Sykes is a founder and editor-at-large of The Bulwark and the author of How the Right Lost Its Mind. He is also the host of The Bulwark Podcast and an MSNBC contributor.