A Very Early Response to the Mueller Report

Yesterday afternoon, Attorney General William Barr delivered to congressional leaders his summary of the conclusions of the Mueller report, which he received Friday. You might as well read it yourself, because it’s only four pages long. Key quotes:

The report does not recommend any further indictments, nor did the Special Counsel obtain any sealed indictments that have yet to be made public.

The report outlines the Russian effort to influence the election and documents crimes committed by persons associated with the Russian government in connection with those efforts. … The Special Counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 presidential election … despite multiple offers from Russian-affiliated individuals to assist the Trump campaign.

The Special Counsel did not draw a conclusion — one way or the other — as to whether the examined conduct [of the President] constituted obstruction. … The Special Counsel states that “while this report does not conclude that the President committed a crime, it also does not exonerate him.” … Deputy Attorney General Rod Rosenstein and I have concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.

[M]y goal and intent is to release as much of the Special Counsel’s report as I can consistent with applicable law, regulations, and Departmental policies.

A few things worth noting.

1. Once Mueller found that Trump was not involved in the original crime, obstruction became harder to establish. Barr reviews the three factors needed to prove obstruction:

  • “obstructive conduct”, i.e., doing something that impedes the investigation
  • “nexus to a pending or contemplated proceeding” i.e., not just making investigators’ lives difficult in some generic way, but disrupting an effort aimed at charging some particular crime
  • “corrupt intent”

All three have to be present in the same action. So while it’s undeniable that Trump has been undermining the investigation in all sorts of ways, proving in court that a particular action was done knowingly to prevent investigators from reaching a particular outcome might be difficult. If Trump had been involved in the Russian conspiracy, then the corrupt intent that he not be caught would be obvious.

Mueller apparently thought that judgment was beyond his pay grade, so he gathered the evidence and kicked the decision upstairs, where Barr and Rosenstein decided there wasn’t enough to prosecute. The issue of whether a sitting President can be indicted didn’t come up, because the process didn’t get that far.

2. The “applicable law, regulations, and Department policies” that could prevent parts of the report from becoming public have to do with the rules that prevent abuse of the grand jury process. This is not a phony issue, because theoretically a prosecutor could use a grand jury to dig up all sorts of non-criminal dirt about somebody — including speculative testimony that isn’t corroborated by any other evidence — and then publish it.

That said, the regulations themselves could be used to cover up stuff that the public ought to know. We’ll have to see how this plays out.

3. So far, the process seems to be working, despite fears on both sides. On the one hand, Mueller was allowed to finish his work and write a report, which (so far, at least) the Attorney General seems to be handling in a responsible way. On the other, there’s no sign of the “witch hunt” by “angry Democrats” that Trump has been ranting about.

4. If it’s really true that Trump didn’t conspire with the Russians to get elected, that has to count as good news.

5. One reason the Trump-conspired-with-Russia theory has been so persuasive was that it explained a number of things that otherwise seem mysterious: Why did so many of Trump’s people have contacts with Russians during the campaign? Why did they lie about those contacts later? And why has Trump been so subservient to Vladimir Putin since taking office?

If Trump didn’t conspire with Russia to get elected, those mysteries don’t go away, and they require some alternative explanation. The first could possibly be pinned entirely on Russia: Putin’s people tried really hard to infiltrate the Trump campaign, so they approached anybody they could. But the second still seems mysterious to me. Why, in particular, did Michael Flynn need to lie to the FBI about conversations during the transition concerning sanctions against Russia? Why did Jared Kushner leave his conversations with Russians off his security clearance form?

And then there’s the mystery of Helsinki. What makes it impossible for Trump to disagree with Putin in public, even when all his intelligence services tell him something different than Putin is saying? Does it have something to do with Russian money that has gone into Trump’s real estate projects in the past? Is it related to prospects for future Trump Organization profits? Congress needs to pursue this.

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  • Dennis Maher  On March 25, 2019 at 9:52 am

    Good clear analysis. What think you of Seth Abramson? Late yesterday he was saying “most in the media don’t understand either point I’ve made here: that a proper Obstruction finding *was never made*, and that a full collusion investigation *was never conducted*.” (He posts dozens of short tweets.)

    • weeklysift  On March 25, 2019 at 1:13 pm

      I’m not familiar with him. I’d be interested to know what “a full collusion investigation was never conducted” means, if you could explain it or find a good link.

  • Geoff Arnold  On March 25, 2019 at 10:13 am

    I came across the following buried deep in a FaceBook comment thread. No attribution, I’m afraid. But interesting:

    “According to a new report from the New York Times Mueller has farmed out federal indictments to 1) the SDNY, in Manhattan, 2) the EDNY, in Brooklyn, 3) the EDVA in Virginia, 4) the U.S. Attorney’s office in Los Angeles, 5) the U.S. Attorney’s office in Washington DC, 6) the DOJ National Security Division, and 7) the DOJ Criminal Division. So is the take away from all this? Those who are familiar with Mueller’s investigation understand that “no more indictments from Mueller” doesn’t mean “no more indictments.” It means every single one of Mueller’s existing indictments resides in a “presidential pardon proof” prosecutorial district. Recall how Mueller handed off the Cohen case to the U.S. Attorneys’ office for the SDNY, who sent Cohen to prison. As his own investigation ends, it becomes clear Mueller plans to handle all indictments/prosecutions resulting from his investigation through these seven federal prosecutorial entities. In other words, the people on Team Trump who are celebrating right now are merely suffering from a lack of understanding about the rule of law and how federal and state prosecutions work.”

    • Josh  On March 25, 2019 at 10:32 am

      Those are federal courts that would charge for federal crimes – they are not “presidential pardon proof”. The commenter you quoted appears to be confused by the distinction between, for example, the US Attorney for the Southern District of New York (federal prosecutor) and the New York Attorney General (state prosecutor).

    • Anonymous  On March 29, 2019 at 7:34 pm
  • Kaci  On March 25, 2019 at 11:02 am

    It’s just so frustrating because report or no, it’s totally clear that Trump shouldn’t be in office and we can’t seem to get rid of him!

  • GJacq726  On March 25, 2019 at 2:35 pm

    Indeed, appears to be an outside-in job on the “collusion” front. Yet, frustratingly, isn’t mafia corruption historically difficult to prosecute?

  • askirsch  On March 25, 2019 at 4:24 pm

    I have another question: Why was Russia so hell-bent on electing Trump, rather than Clinton? Did they figure he’d be stupid enough to be played? Do they have kompromat on him? What is going on here if not collusion/conspiracy? What did/do the Russians hope to get from all this?

    • Anonymous  On March 27, 2019 at 12:39 am

      Well, off the top of my head, they’ve gotten some divisive actions related to NATO, foot dragging on any kind of Russian sanctions, general idiocy about foreign policy, and internal divisions and distractions within the US..Clinton would have been much more internationally savvy and less subservient to Putin.

      • GJacq726  On March 27, 2019 at 6:42 am

        Well said.

      • askirsch  On March 27, 2019 at 8:41 am

        I agree completely, but I still can’t help but wonder if the Russians had something still further on Trump. He had a lot of money problems for which he turned to Russians before he entered politics, not to mention a strong sexual appetite. I expect this thing runs really deep and we don’t yet have access to his tax returns. Did Deutsche Bank lend him money they got from Russian depositors, e.g.?

      • Anonymous  On March 27, 2019 at 9:44 pm

        Money laundering is one possibility. The German government seems to think that Deutsche Bank has been involved in money laundering, Trump has sold real estate for more than market value (which is one way of laundering money), the buyer was a wealthy Russian(s), and Deutsche Bank has been willing to work with Trump when other banks weren’t, Nothing definitive in all of that, but it’s a possibility.

  • nicknielsensc  On March 25, 2019 at 11:02 pm

    There is some question about Barr’s interpretation of “obstruction”.
    https://www.lawfareblog.com/yes-bill-barrs-memo-really-wrong-about-obstruction-justice – scroll to “The facially-lawful facade” for the discussion.

    • Albert Kirsch  On March 26, 2019 at 1:14 pm

      OMG here we are in the middle of the game and the Red side scored a TD. Am I supposed to be upset? There’s plenty of game to play.

      • Kaci  On March 26, 2019 at 1:16 pm

        I just want the game to be over!


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