This is not the moment we’ve been waiting for.
Yes, Special Counsel Robert Mueller completed his report and submitted it to Attorney General William Barr for review by the Department of Justice. Yes, Barr summarized the report in a letter to Congress. But we still know very little about what Mueller’s team actually found, or didn’t find.
According to Barr’s letter, Mueller said his office’s investigation “did not establish that members of the Trump Campaign conspired or coordinated with the Russian government” in the actions it took to interfere with the U.S. election in 2016. Mueller also indicated that he won’t pursue any further indictments. These vague revelations simply tell us that a 22-month investigation with 2,800 subpoenas, 500 executed search warrants, and 500 witness interviews didn’t produce enough evidence to charge anyone with additional crimes within the special counsel’s mandate.
Should we be relieved at this sign that neither the president nor his campaign associates intentionally collaborated with Russian agents to manufacture an illegitimate election victory? Sure. But let’s also acknowledge how low that sets the bar for acceptable governance: at treason, basically. After all, it was Donald Trump’s very own well-publicized, in-character conduct (and the conduct of people he chose to work for him) that made people afraid that he might actually be a witting foreign agent. (“Russia, if you’re listening….”) Mueller’s report obviously doesn’t erase those actions, even if it turns out to conclude that the reality isn’t actually worse than we already knew.
Everything we still don’t know leaves us in a confusing limbo, at least for now. But here are some insights that cut through the noise of too many premature conclusions.
“No one who matters has read the Mueller report yet,” Quinta Jurecic writes. There may have been good reasons to examine the question of conspiracy by a criminal standard, the way a court would. But now we’re at the limits of that approach: Mueller’s report didn’t “establish” that a conspiracy occurred, which is very different than concluding affirmatively that no conspiracy occurred. (As defense counsel told the jury at a trial I observed long ago: “You don’t need to find him innocent. Nobody’s innocent.”) With the law inconclusive, Jurecic argues that only political and moral questions remain for us and, ultimately, our legislators on both conspiracy and obstruction:
[M]embers of Congress and the public at large — who will need to decide what is and is not acceptable in public life — don’t yet know the things they need to know in order to make an informed decision….
Whether or not the evidence is sufficient to prove beyond a reasonable doubt that this person obstructed justice, is [Trump] really the kind of person who is fit to be president?
Similarly, although we can safely presume that Mueller’s thorough investigation created a “complete factual record,” the Barr letter doesn’t illuminate any factual findings, the folks at Lawfare explain. Mueller’s statement that his team “did not establish” conspiracy to interfere in the election
is consistent with a report that says that Mueller looked everywhere yet couldn’t find any knowing engagement on the part of Trump’s campaign with Russia’s interference in the election. But Barr’s summary would also be broadly consistent with many other possible reports.
It would be consistent with, for example, a report that finds lots of “evidence of collusion” that for one reason or another falls short of criminal conduct. It would be consistent with a report that describes conduct that falls short of the criminal standard by the barest of technicalities. It would be consistent with a report that finds that individuals associated with the president’s campaign were aware of the Russian efforts to interfere in the election, welcomed such assistance, and did not in any way warn the American public about it — but who did not take the requisite step of entering into any criminal agreement to assist the effort either. It would also be consistent with a report that suggested that Trump’s principal engagement with the Russians was not over hacked emails at all, but instead about the tower he was negotiating to build in Moscow even as the campaign was going on.
And the collection of seemingly damning behavior that isn’t necessarily illegal has been alarming, notes Franklin Foer.
The Mueller investigation has been an unmitigated success in exposing political corruption. In the case of Paul Manafort, the corruption was criminal. In the case of Trump, the corruption doesn’t seem to have transgressed any laws. As Michael Kinsley famously quipped, “The scandal isn’t what’s illegal; the scandal is what’s legal.” Lying to the electorate, adjusting foreign policy for the sake of personal lucre, and undermining an investigation seem to me pretty sound impeachable offenses—they might also happen to be technically legal.
Just as Saddam Hussein acted as if he possessed verboten weaponry, everything about Trump’s behavior suggested that he was guilty of instances of collusion worse than anything the public could observe. That’s undoubtedly a major reason so many intelligence-community honchos were so worried. The other reason, which Barr cited again today, is that the Russians were actively seeking a partnership with the campaign. That such a partnership never materialized is a relief. But the fact that we’re not staring at the worst-case scenario of guilt is hardly a reason for giving the president any credit.
As for the specific question of obstructing federal investigations into election interference, Ken White points out that Barr’s letter doesn’t specify whether Trump didn’t obstruct justice, as a factual matter, or whether he couldn’t obstruct, as a legal matter.
Well before his appointment, Barr wrote an unsolicited memo to Rosenstein arguing that Mueller’s investigation was “fatally misconceived,” to the extent that it was premised on Trump firing former FBI Director James Comey or trying to persuade Comey to drop the investigation of Michael Flynn, Trump’s first national security adviser. Barr’s memo was a forceful exposition of the legal argument that the president cannot obstruct justice by exercising certain core powers such as hiring or firing staff or directing the course of executive-branch investigations.
Anyway, you already know about most of the evidence for obstruction, writes Marty Lederman at Just Security:
Trump pressured Comey to back off on Michael Flynn. He fired Comey in order to take off the “great pressure” he faced “because of Russia” (as he said in his contemporaneous boasts to Russian officials!). He constantly disparaged, and called into question the impartiality of, Mueller and his team of lawyers. He insulted countless career and Trump-appointed DOJ and FBI officials of extraordinary integrity. He said he wouldn’t have appointed Jeff Sessions if he knew Sessions would recuse himself from the Russia investigation, tried to get Sessions to reverse his decision to recuse, and humiliated Sessions when he wouldn’t budge. Eventually he fired Sessions and then displaced Rod Rosenstein as Acting Attorney General with a lackey, deviating from centuries of practice. He persistently referred to the critically important Russia investigation as a “witch hunt.” …
Trump’s behavior with respect to the investigation has been deeply deviant, inexcusable, and damaging. Moreover, it has been – quite obviously – part of a concerted, multiyear effort to obstruct, and undermine the legitimacy of, the Russia investigation. No serious person would dispute that.
But Mueller’s report was almost certainly never going to lead to Trump’s indictment for obstruction, Lederman argues, because the Department of Justice has – perhaps rightly – resisted the idea that it should investigate a president’s otherwise constitutional acts under Article II to see if his true motives made those acts unconstitutional. Under this view, presidential conduct that looks like obstruction isn’t a criminal matter for law enforcement; it’s a matter for Congress to take up in impeachment proceedings. There, members of Congress can apply whatever standard of proof they want to questions of motive, like these:
[W]hy has Trump fallen so far short in performing his constitutional duties on behalf of the nation when it comes to matters involving Russia? In addition to his efforts to hamstring the Russia investigation, what explains his sycophancy to Russian President Vladimir Putin in Helsinki and elsewhere, and Trump’s apparent willingness to believe whatever the Russian leader tells him, even when it contradicts the uniform assessments of his own intelligence agencies? His reluctance to criticize Putin’s regime, even for its assassinations abroad? His repeated efforts to distance himself from U.S. efforts to countermand Russia? His instructions to Michael Cohen to lie to Congress about the Moscow Trump Tower discussions? His manifest disinterest in addressing the continuing threat to our electoral system?
Does Russian intelligence have kompromat on Trump that makes him susceptible to undue influence? Or is there a more benign explanation?
One such “benign” explanation might be: liars gonna lie, and con artists gonna con. But who’s honestly reassured by the suggestion that the president’s governing style, which reeks of corruption and ignoble self-interest, is just Trump being Trump? Recalling that Mueller’s team made quite clear that Russian agents did intentionally interfere with the 2016 election, in part by stealing Americans’ private information, David Frum asks “why” from the Russian perspective:
Russian President Vladimir Putin took an extreme risk by interfering in the 2016 election as he did. Had Hillary Clinton won the presidency—the most likely outcome—Russia would have been exposed to fierce retaliation by a powerful adversary. The prize of a Trump presidency must have glittered alluringly, indeed, to Putin and his associates. Why?
Did they admire Trump’s anti-NATO, anti–European Union, anti-ally, pro–Bashar al-Assad, pro-Putin ideology? Were they attracted by his contempt for the rule of law and dislike of democracy? Did they hold compromising information about him, financial or otherwise? Were there business dealings in the past, present, or future? Or were they simply attracted by Trump’s general ignorance and incompetence, seeing him as a kind of wrecking ball to be smashed into the U.S. government and U.S. foreign policy?
Finally, Garrett Graff at Wired has a long list of more as-yet unanswered questions, only some of which may be answered by Mueller’s actual report. Some of the most important ones for Congress to address:
What was the motive or significance of Paul Manafort turning over polling data to Konstantin Kilimnik, a fact that the public only knows because of screw-ups by Manafort’s lawyers and that Mueller himself never mentioned publicly?
What happened inside the Trump Organization as the Trump Tower Moscow deal continued in 2016 amid the campaign, a project that the candidate and later president proceeded to lie about for years?
How did Trump campaign aide George Papadopoulos appear to know about Russia’s hacking operations and digital theft long before it became public?
What exactly was discussed amid the odd meetings between Trump and Putin over the last two years — and why all the secrecy around those meetings?
Why did the Trump campaign seek to change the Republican Party platform during its Cleveland convention to be friendlier to Russia?
Bottom line: As special counsel, Robert Mueller’s mandate was broad but not limitless. His task was never to tell us how to solve a problem like Trump. His job, practically speaking, was to uncover all the facts relevant to criminal or otherwise impeachable conduct. We know he’s now finished. But we don’t yet know much more than that.