Mueller’s Report: We Don’t Know Much
Predictably, news that the investigation has ended has people on both sides cheering. It's unwarranted.
As of this writing, at 5:41 Eastern time Saturday morning, President Trump has not Tweeted about Friday afternoon’s announcement that Robert Mueller has completed his investigation and submitted his report to Attorney General William Barr.
Some supporters of the President are already taking victory laps based on news that Mueller has issued no further indictments. Byron York‘s “Five things that didn’t happen in the Mueller investigation” is an exemplar.
1. Mueller did not indict Donald Trump Jr., Jared Kushner, or other people whose purported legal jeopardy was the subject of intense media speculation in the last year.
2. Mueller did not charge anyone in the Trump campaign or circle with conspiring with Russia to fix the 2016 election, as was the subject of intense media speculation in the last year.
3. Mueller did not subpoena the president, as was the subject of intense media speculation in the last year.
The Bulwark’s Jonathan Last counters with “Four Arguments About the Mueller Report You Should Ignore.”
There is literally nothing that Robert Mueller could present that would cause most Republicans to turn on Trump or most Democrats to decide that he’s innocent.
So what are you supposed to do if you’re in the camp that’s persuadable and wants to take the Mueller report seriously? There are three things: read the report; grapple with the facts; and try to come to reasonable conclusions—accepting right out of the gate that all stories this big will be messy and incomplete.
[…]
Understand this: There’s never a smoking gun.
No matter what evidence you have, there’s always some further piece of evidence that a committed partisan can demand in order to create some mythical sense of total, metaphysical certainty.
You have bank records showing a mob boss paying a hitman. Well, how do you know he was paying him for a hit job?
You have audio recordings of the mobster saying, “I want you to take care of Joey.” Well, that could be anyone’s voice. Where’s the videotape?
You have video of their conversation. Okay. But haven’t you heard of deepfakes and where’s the smoking gun on tax evasion charges?
The entire idea of the “smoking gun” is really about establishing, and then moving, goalposts. In any investigation there will be multiple points where proof of something is established. For instance, throughout the 2016 campaign, Donald Trump insisted—over and over—that he had no business interests in Russia. We now know that this was a lie. You might say, in fact, that we have a “smoking gun” on this question.
Any investigative report will contain many, many issues of fact. Some of them will be established beyond a reasonable doubt via direct evidence. Some of them will be established to a lesser degree of certainty via circumstantial evidence.
When people try to dismiss the Mueller report because it doesn’t contain a smoking gun—and I promise you, this is a thing that will happen—what they’re really trying to do is play a game where they ignore some findings of fact in an effort to claim that any place without a solid finding of fact invalidates the whole.
Not surprisingly, the best commentary I’ve seen on this thus far is from Lawfare’s Ben Wittes (“Very Quick Thoughts on the End of the Mueller Investigation“).
We don’t, at this stage, know anything about what information the Mueller Report contains. We don’t know what form the document takes. We don’t even know how many pages comprise it. We don’t know when we will learn what Mueller has found. Speculating about these questions is not useful. A huge amount depends here on how Mueller imagines his role—and on how Barr imagines his.
[…]
We also know that Mueller is not going to indict more people. Though what precisely this means is unclear, it means at a minimum that we should not expect the major collusion indictment that ties together the earlier Russian hacking allegations and social media indictment with conduct by figures in the Trump campaign. It also means that whatever Mueller found on the obstruction prong of the investigation, it’s not resulting in criminal charges either.
The president should wait before popping the champagne corks over this and tweeting in triumph. Yes, in the best-case scenario for the president, Mueller is not proceeding further because he lacks the evidence to do so. But even this possibility contains multitudes: everything from what the president calls “NO COLLUSION!” to evidence that falls just short of adequate to prove criminal conduct to a reasonable jury beyond a reasonable doubt—evidence that could still prove devastating if the conduct at issue becomes public.
There are other possibilities as well. It’s possible, for example, that Mueller is not proceeding against certain defendants other than the president because he has referred them to other prosecutorial offices; some of these referrals are already public, and it’s reasonable to expect there may be other referrals too. In this iteration, what is ending here is not the investigation, merely the portion of the investigation Mueller chose to retain for himself. It’s possible also that Mueller is finished because he has determined that while the evidence would support a prosecution of the president, he is bound by the Justice Department’s long-standing position that the president is not amenable to criminal process. On the obstruction front, he may well have concluded that, while the president acted to obstruct the investigation, he cannot prove beyond a reasonable doubt that the president’s obstructive acts were not exercises of Trump’s Article II powers. It’s also possible that Mueller has strong prudential reasons for not proceeding with otherwise viable cases.
My gut instinct is that it is some combination of these factors that explains the end of the probe. Without knowing the reasons the investigation is finished, it is impossible to know how to assess its end—and nobody should try.
A paywalled WSJ report (“Mueller Report Concludes, But Other Investigations Loom“) reminds us, “The conclusion of special counsel Robert Mueller’s Russia investigation leaves in its wake about a dozen other probes into President Trump and his associates by an array of federal, state and congressional investigators.” The Atlantic (“After Mueller: The Ongoing Investigations Surrounding Trump“) breaks them down in some detail.
Two other commentaries merit attention.
Ken Starr, who held a job analogous to Mueller’s for the myriad investigations surrounding President Bill Clinton, reminds us of the ground rules (“Mueller Cannot Seek an Indictment. And He Must Remain Silent.“).
Under Department of Justice policy, a sitting president cannot be indicted. This prosecutor, unlike other prosecutors, cannot indict if he finds an indictable offense. And in contrast to the practices and policies that govern thousands of federal prosecutors around the country, this former FBI director—now a special counsel—has a specific reporting obligation. That solemn obligation is not to produce a public report. He cannot seek an indictment. And he must remain quiet.
[…]
Under the regulations that governed his appointment and now guide his final acts, Mueller is to provide a confidential report to one person only: the attorney general. The regulations, which were promulgated 20 years ago during the final months of the Clinton administration, do not contemplate any sort of report sent directly from the special counsel to Congress or the general public. To the contrary, the regulations call upon the attorney general, William Barr, to receive the confidential report and then do two things: First, to notify Congress of the investigation’s completion and, second, to provide an explanation for certain specifically enumerated actions. There is no requirement for a Barr-edited version of the Mueller report.
In short, there may be no Mueller report at all, save for the confidential document that lands on Barr’s desk. And these same regulations do not require the attorney general to simply pass along a “confidential” report that may very well contain unflattering information about one or more individuals. Including the president.
Donald Trump has been president for 792 days. Special counsel Robert Mueller has been on the job — investigating Russian interference in the 2016 election and the possibility of collusion between the Russians and members of Trump’s campaign — for 675 days.
That all came to a head at 5 p.m. Eastern, when the Justice Department announced that Mueller had delivered his investigation to Attorney General William Barr. While we don’t know what’s in the report, we do know that this marks a major milestone: Mueller’s investigation, which has occupied 85% of Trump’s presidency, is now finished. We are likely to look back on Trump’s presidency — no matter what the report actually says — as “before Mueller report” and “after the Mueller report.”
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This all began on May 17, 2017, when Mueller was appointed as special counsel by deputy Attorney General Rod Rosenstein. In the intervening 22 months (statistics courtesy of CNN Mueller probe expert Marshall Cohen):
- Mueller brought criminal charges against 37 people and entities.
- 6 of them were associates of President Trump: Campaign chairman Paul Manafort, deputy campaign chairman Rick Gates, national security adviser Michael Flynn, foreign policy adviser George Papadopoulos, Trump ex-attorney Michael Cohen and political svengali Roger Stone
- 5 people have been sentenced to prison
- Trump has referred to the investigation as a “witch hunt” more than 170 times.
Given the length of the Mueller probe, the number of charges it has produced and Trump’s unrelenting negative attacks on Mueller and his team, it’s normal to see the conclusion of the Mueller report as the beginning of the end of all of this.
While it’s simply a guess at this point, I’d wager that:
- Barr will release a comprehensive summary of the report, if not the entire unredacted report, to the public and Congress very soon—possibly this weekend. Doing otherwise would be seen as a cover-up and Barr will bend over backward to protect the reputation of the DOJ.
- The fallout from the report will consume the remainder of Trump’s presidency.
- There will be strong evidence that supports the impeachment of the President but Democrats will follow Speaker Nancy Pelosi’s lead and not actually pursue impeachment minus significant Republican defection, which won’t be forthcoming.
- Few minds will be changed regardless of the outcome. As Last noted, there’s essentially no evidence that would persuade those who still back Trump at this point that their man did anything wrong. And the charges, convictions, and testimony thus far would satisfy Trump critics that he’s guilty even if that turns out to be the extent of his misfeasance.
In the event that the report remains in any part secret, Democratic candidates will find themselves armed with a very heavy stick with which to beat Trump and Republicans. Hammer with it repeatedly. If it cracks the skulls of only 1% of his supporters, then a blue wave should wash Trump out to sea.
We go into this mess largely because Comey was protecting the FBI’s reputation, and relationship with Congressional GOPs.
Which, short of being able to impeach Pence first, then Trump immediately, is IMHO the best attainable outcome.
Did you really intend to slander Mueller like that?
Do you ever have the feeling we could see video of Trump and Putin agreeing on a quid pro quo for Russian help in the election, and a vast majority of Republicans would say “But her emails!!!!”?
Nixon must be rolling in his grave.
Will consume Washington and the news networks for the remainder. I think we’ve plenty of evidence that Trump gets things done even with the nipping at his ankles. I’d say it will peak in rhetoric then die off quickly as the 2020 candidates realize it won’t move the needle for them.
Amusingly, Dems in Congress are demanding they be given the full report, contrary to the statute, before Trump or his lawyers are allowed to see it. Now, this was a “counter-intelligence” investigation and the legislative branch is demanding that the President, constitutionally in charge of foreign relations and national defense, not be brief in favor of those who have only politically motivated interests in the report. This reinforces the “witchhunt” meme.
What this closing of the investigation does is free up other measures that have been pending. Word is the FISA judges are none to happy with being duped and are just awaiting the IG report before they exact their pound of flesh. Other actions that might have been construed as influencing Mueller are now likely.
I have house guests who were consuming a large amount of FNC yesterday. While I did not join in, it was amazing to behold, when I would pass through the room, as the talking heads all tried to assure the viewers that somehow the fact the report was in was good for Trump and the lack of additional indictments meant NO COLLUSION and the end of the process.
On balance I personally avoided almost all news about the release, because no one knew anything worth saying yesterday apart from reporting that the report was turned in.
@JKB:
Do we? In all seriousness, this is not the most productive of presidencies, especially from a legislative POV. Reversing trade sanctions via Twitter is not what I would call evidence of getting things done.
@Steven L. Taylor:
I read the initial reports, checked the TV news, realized no one knew anything, and turned off the news rather than endure untold hours of the same people asking, ‘What’s in it? Do you know what’s in it? I can tell you what might be in it.” I mean, god damn, I love me some politics but can we wait until we actually have some data?
@Steven L. Taylor:..I have house guests who were consuming a large amount of FNC yesterday.
Are they still sitting on the couch?
Trigger Warning: Technologically dated!
@Steven L. Taylor:
I somehow suspect that JKB won’t actually respond to you point, but you are 100% correct.
Trump only has two signature legislative to point to: tax reform and the first step act.
Beyond that, everything else is either based on changes to regulations and international agreement that can be overturned by the previous administration, overturning of previous administration policy (which again can be reversed by the next executive), and court appointments (which really are the result of McConnell’s work and have little to do with Trump himself, beyond making the nominations).
Yes, Trump’s appointees are transforming the government (by, for example gutting the State Department) and those will have long term effects (in trying to undue the hiring damage), but theoretically all of that can be reversed by the next president if they choose to do so.
@Michael Reynolds:
Indeed.
@Kathy:
There’s a strong argument to be made that under today’s polarized conditions and stronger right wing media environment, Nixon would have served both terms.
@mattbernius: And, moreover, all of this is stuff that takes little effort and affords plenty of opportunities for “executive time” and tweeting.
@mattbernius:
If not more.
@Steven L. Taylor: JKB got the Supreme Court Justices he wanted and probably a big tax cut. What else do you suppose he cares about?
@mattbernius:
You mean all four terms, don’t you? 😉
AFAIK, Trump hasn’t said one word about this. You’d think he’d be yelling “MUELLER SEZ NO COLLUSION” all over the place, especially Twitter. But his Twitter account hasn’t been used for over 22 hours. Did someone take his phone away from him?
Are we even sure there aren’t more indictments? There could be a whole bunch of sealed indictments sitting there prepped and ready for trial.
I’m just saying we know nothing at this point beyond the fact that a report has been written.
Mueller has indicted/convicted a whole lot of people for lying to investigators, and a few people for financial crimes that seem like an effort to flip them, and then… he delivers a report.
Either they were lying about nothing, or they were lying about something that isn’t illegal (merely unseemly enough to be worth trying to hide), or the report is just abut counterintelligence (here’s what happened, good luck figuring out what to do about it), or the report sits upon a stack of sealed indictments (here’s what happened, here’s what needs to happen).
Other possibilities also doubtless exist. A list of the myriad minor unrelated thing things people independently lied to cover up, creating the appearance of a larger coverup, perhaps. Or the reveal f a Russian operation to make it look like the Presidents campaign had been colluding….
@Steven L. Taylor: These people all probably nodded in agreement with Andy McCarthy’s book that argued for Obama to be impeached. Things are getting so weird.
@Steven L. Taylor:
I’m not sure that’s true. People who travel in legal circles understand the implications of lack of indictments. To demand what sounds superficially like sober and intellectually pure restraint sounds about as valid as refusing to acknowledge that there are billions and billions of stars in the universe until the final count is in.
We’ve been told for two years we don’t know what Mueller knows. Its a convenient way to keep a meme alive for political advantage. And it hasn’t stopped Trumps opponents from making the most outrageous charges and inferences. Including here. To now demand sober, intellectual restraint is hypocritical. To do what the Schiffs of the world are doing – completely discounting the result – self identifies one as an execrable person. There are costs to this charade.
@Guarneri: Except for all the indictments that have already been issued, the continuing investigation in SDNY and in the House, of course.
@Guarneri: Not to mention that from a purely empirical, dispassionate point of view, we really know nothing more today than we did 24 hours ago save that the report has been turned in.
How can anyone reach any conclusions from that one piece of data?
@Steven L. Taylor:
I don’t think you’re giving Trump enough credit. Look at what he’s done to our European alliances, the Supreme Court, half of the cabinet-level executive agencies, the deficit, balance of trade… We will be feeling his impact — viscerally — for a long time.
@DrDaveT: That’s a different issue. The suggestion was he was a go-getter, even when under assault. I think he is lazy and not especially productive—and, to your point, thank God that is the case. An efficient, hard-working Trump could do even more damage the lazy, ignorant, inefficient Trump we actually have.
F’ing things up doesn’t actually take much effort–doing to Canada and being a dick, for example, does not really get in the way of TV time.
Benjamin Wittes again hits it out of the park with his grounded and thoughtful analysis:
https://www.lawfareblog.com/how-understand-end-mueller-investigation-hint-you-cant-yet
He also raises one of the questions I’ve had since the announcement of no additional indictments: what the heck happened with Jerome Corsi:
What the heck happened there.
I think Wittes is also entirely correct that, depending on the contents of the report, there are lots of challenges ahead. Honestly the greatest one, IMO, is this one:
Honestly, I hope this isn’t the case. I’d prefer my opinions of what Republicans are willing to tolerate in order to stay in power not be further diminished.
@mattbernius:
Well, to start with, Dems controlled both houses of Congress. They had 56 Senators, meaning that in theory if all Dems voted to convict they only needed 11 Republicans to join them, whereas today they’d need at least 20 to remove Trump.
Of course, party polarization just wasn’t what it is today. I suspect that if Nixon hadn’t resigned, some Dems would have voted against conviction, but far more Repubs would have voted for. Today, it’s easy to imagine a scenario where every single Democrat in the House and Senate votes to impeach or convict Trump, and every single Repub votes against. That level of polarization was almost unthinkable in the ’70s.
Well, we view things differently. You count number of laws, but someone serious about reducing government isn’t going to be big legislator. Regardless of how bad the laws are, how much they damage the country and the economy, politicians aren’t going to vote down their bread and butter. The gospel of creeping interventionism is more, not fewer, laws to correct the failures of the earlier interventions.
In any case, we’ve had real change in the 70 yr old national security/foreign policy failure that is North Korea. Even potential for a real solution. No need to argue over the details, it will or will not happen regardless of our “analysis”. Trump has stopped doing the same thing in regards to the ME and is changing the board with moving the embassy in Israel and the twitter recognition of Israel/Golan Heights. Again, opinions on the specifics vary, but it is more than has happened in the last 40 years.
All presidential things, with a hostile, even mutinous, federal bureaucracy working against the elected head of the Executive branch.
@JKB:
Indeed.
Any serious, long-lasting change, especially in the realm of domestic policy, requires legislation. If one doesn’t understand that, then one falls for snake oil salesmen in the White House.
This is delusional. We are not in a significantly different position now than we were before. And Kim is actually in a stronger political position than pre-Trump.
Of course not, because that would reveal how delusional that assertion is.
Again, that is a cartoonish view of the situation. All it has really done is decrease the US’s ability to influence the situation over the long haul. Trump has engaged in symbolic actions that have just increased the degree to which the US is views as on Israel’s side and cannot be an honest broker.
The notion that those declarations are substantive progress is ridiculous.
@JKB: And even so, your big argument for how hard he works is two photo ops with Kim and two declarations made about Israel?
@JKB:
You definitely watch to much FNC.