The Mueller Report

Six Preliminary Takeaways from the Mueller Report

It's a far cry from exoneration.
by Kim Wehle
April 18, 2019
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(Illustration by Hannah Yoest / photos: GettyImages / Shutterstock)

Today is a stunningly significant day in the history of the United States, and it isn’t even over yet.

This morning, Attorney General William Barr held a press conference in which he spun the contents of Special Counsel Robert Mueller’s report regarding Russia’s interference in the 2016 presidential election as the report was being readied for public dissemination.

The report came out at 11 a.m., with dozens of pages redacted, but largely intact. It’s a daunting—and gripping—tale that will take days, weeks, and even years to fully digest.

For now, what to make of it at-a-glance? Here are six preliminary takeaways:

1. Barr is to be commended for his nod towards transparency. Under the special counsel regulations, Barr was not required to release the full report. Yet he did. Bravo for Barr, and bravo for democracy.

2. Barr is acting within his job description, but not as a neutral officer of the rule of law. This is too bad.

It makes sense that the attorney general would decide that some sort of a shorthand explanation of the two-year investigation and 400-page tome that’s the “Mueller report” is warranted. The public needs help with it.

Barr read his conclusions from the podium as if they were legally definitive—like a justice declaring a legal opinion from the Supreme Court bench. But unlike a Supreme Court justice, Barr did not issue his view of the law and the facts astride eight other “justices” with equal voice in the decision. He was hand-picked by his boss under Article II of the Constitution—after both had made it publicly clear that they’re no fans of the Mueller investigation. (Recall that, while a private citizen, Barr wrote an unsolicited memo to the White House in June 2018 assailing what he presumed was Mueller’s flawed approach to obstruction of justice).

It appeared Thursday that Barr may view his role as attorney general as one of loyalty and service to Trump-the-man rather than to the office of the presidency. A different attorney general might have laid out both sides of the story—or let the document speak for itself—on the theory that the federal criminal justice system would benefit from a more objective stance by its top prosecutor.

Like any good private lawyer, Barr cherry-picked facts from the report to back up Trump’s side of the story. He even used the words “no collusion” in his oral summary, while Mueller decidedly rejected that word in his report and explained why “the Office’s focus in analyzing questions of joint criminal liability was on conspiracy as defined in federal law.”

Collusion is not a legal term with any legal meaning. In other words, collusion can exist even if legal conspiracy does not. Collusion simply means what the dictionary—and common parlance—says it means. In the Trump-Russia story, a reasonable definition of collusion could include the willing acceptance of illegal help from a hostile foreign power in order to win a presidential election.

Under our Constitution, Congress and its constituent voters get to decide that issue through the political process. Not Barr.

3. Mueller made clear that the Russians illegally worked to secure Trump’s election, and that the campaign expected and welcomed that help. In another universe, Trump and his campaign staff would have told the Russians to pound sand and then called the FBI the minute the Russians came knocking at their door. Why? Because the integrity of American elections was at stake. (But maybe that measure of integrity is too much to ask of politicians these days.)

4. Mueller’s description of what Trump did sounds a heck of a lot like obstruction of justice.

The statute makes someone guilty of the crime of obstruction if he “corruptly … obstructs, influences, or impedes any official proceeding, or attempts to do so.”

In his June 2018 letter to the White House critiquing what he believed to be Mueller’s overly- broad reading of this language, Barr argues that the statute doesn’t capture any bad act—only those that “sabotag[e] a proceeding’s truth-finding function,” like altering evidence or inducing a witness to change testimony or lie to investigators. (Note that Barr cites no federal court—let alone the Supreme Court—that has firmly adopted Barr’s position, which is hardly obvious from the plain language of the obstruction statute, which is extremely broadly worded.)

Mueller writes that, when President Trump learned of Mueller’s appointment, he “sought to have Attorney General Jefferson (Jeff) Sessions unrecuse from the Russia investigation and to have the Special Counsel removed, and engaged in efforts to curtail the Special Counsel’s investigation and prevent the disclosure of evidence to it, including through public and private contacts with potential witnesses.”

He then goes on to detail a laundry list of specific facts supporting this conclusion—including, for example, that Trump told White House staff not to disclose emails related to the infamous June 2016 Trump Tower meeting, which was attended by Paul Manafort, Jared Kushner, and Don Jr. for the ostensible purpose of getting dirt from the Russians on Hillary Clinton.

You don’t have to be a lawyer to connect the logical dots here. (Emails are evidence. Trying to keep them hidden is an imposition on the truth-finding process.)

5. Mueller nonetheless declined to state that the president obstructed justice, in part because Department of Justice policy forbids indicting him—and for Mueller, it wouldn’t be fair to ping Trump without actually charging him. This is a critical wrinkle in the obstruction story. Although Barr seemed to suggest publicly that the DoJ memo barring indictment of a sitting president was irrelevant here, that’s not what Mueller said.

Mueller—ever the stand-up guy—appeared to take two DoJ policies and blend them together to reach his “non-conclusion” conclusion on obstruction. He wrote that “[a]n individual who believes he was wrongly accused can use [the trial] process to seek to clear his name.” But “a prosecutor’s judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.”

Because Mueller couldn’t charge and try Trump before an impartial adjudicator per DoJ policy, he wasn’t going to make “a formal public accusation akin to an indictment” in a report, either.

This is a far cry from exoneration. Thus, “while this report does not conclude that the President committed a crime, it also does not exonerate him.”

6. Mueller made clear that “a President does not have immunity after he leaves office.” The general statute of limitations for federal crimes is five years. Presidents can serve either a single term of four years, or two terms of eight years.

You do the math. November 2020 is going to be epic, folks. It’s up to the American voters now.

Kim Wehle

Kim Wehle is a contributor to The Bulwark. She is also a professor at the University of Baltimore School of Law and a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation and author of How to Read the Constitution and Why (Harper Collins).