The Weekly Sift

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.