Legal Experts Weigh in on Barr Summary of Mueller Report
The Lawfare gang and Popehat weigh in.
We’re unlikely to know much more about the Robert Mueller-led investigation into Team Trump until a redacted version of the full report is made public. But the considered judgment of two of my go-to sources for legal analysis largely corroborates my own hasty analysis of the Attorney General’s summary.
The Lawfare team (Mikhaila Fogel, Quinta Jurecic, Susan Hennessey, Matthew Kahn, Benjamin Wittes) has a much more detailed analysis titled “What to Make of Bill Barr’s Letter.” Despite far more legal training and having devoted much more effort on a daily basis to following the investigation, they find nothing that surprises me. Their conclusion is strong:
The conclusion on the Russian conspiracy prong stands for one proposition unambiguously: The special counsel’s office did not believe that it could reasonably prove in court that any Trump campaign member or affiliate committed a crime in assisting the Russian government with its efforts. That’s a significant thing. It means there is no smoking gun, that there’s no other big shoe to drop that establishes criminality. It means that, after as thorough an investigation as the United States government is capable of conducting, prosecutors couldn’t find any actual agreement—“tacit or express”—on the part of anyone associated with the Trump campaign to work with the Russians to undermine the U.S. election. Every American should be cheered by that conclusion; the ramifications of any alternative are difficult to contemplate.
There’s also an important message for Congress in here. If as thorough and comprehensive a federal investigation as this one has failed to establish conclusive evidence of “collusion” as Mueller defines it—either because there was no actual collusion or for some other reasons—it is highly unlikely that a congressional investigation is going to strike paydirt on this point. Congress might reach different conclusions regarding the significance of evidence Mueller’s team identified, but it probably isn’t going to sound depths that Mueller didn’t plumb. The working presumption should be that the Mueller report contains the complete factual record, at least on the points he purports to address.
Put simply, the criminal investigation didn’t find any crimes on the U.S. side, though it found plenty on the Russian side. It doesn’t means one cannot conclude, based on the factual record, that people behaved recklessly, unpatriotically or stupidly. But it does mean that the criminal investigation is over. That’s good news, in general, and it’s good news for President Trump.
Depending on what’s actually in Mueller’s report, the news could get better still for the president. This section of Barr’s summary, after all, is broadly consistent with the Trump campaign’s having had very little to do with Russia’s conduct. While the summary says that there were “multiple offers from Russia-affiliated individuals,” its language is consistent with no one in the campaign having taken the Russians up on it—beyond the public hints and the untoward meetings and communications that are already part of the public record, that is. Yes, the contacts were suspicious, even quite inappropriate, and some people did commit crimes in lying about them both during the campaign and during the transition. But this section of the summary 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.
Ken White of Popehat fame is a little harsher in his Atlantic essay “Barr’s Startling and Unseemly Haste.”
Barr’s letter thoroughly quelled some of the fondest hopes of the anti-Trump “resistance.” The letter revealed that Mueller closed his investigation without recommending more criminal charges, and that no further indictments are under seal, as some had speculated. That’s a great relief for Trump and his family and associates, but it’s not the end of their federal criminal jeopardy. Barr also pointed out that Mueller “referred several matters to other offices for further action.” For instance, the special counsel sent the investigation of Michael Cohen’s hush-money payments to Stormy Daniels to the U.S. Attorney’s Office for the Southern District of New York, which secured Cohen’s guilty plea for federal campaign-finance violations. That office is still actively investigating the matter—we know this because it carefully redacted the details of the investigation when it released the Cohen search warrants last week. But the special counsel’s investigation was the most prominent legal threat to the president and his family, and its closure without further indictments is a major victory for him.
Next, Barr reported that the special counsel concluded that Russia attempted to interfere with the 2016 presidential election. That interference involved disinformation campaigns, efforts to sow “social discord” online, hacking the Hillary Clinton campaign and the Democratic Party, and distributing misappropriated emails through WikiLeaks. But crucially, Mueller reported that his investigation “did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities,” whether expressly or tacitly.
Trump’s triumphant supporters notwithstanding, we don’t yet know what that means. When prosecutors say that an investigation “did not establish” something, that doesn’t mean that they concluded it didn’t happen, or even that they don’t believe it happened. It means that the investigation didn’t produce enough information to prove that it happened. Without seeing Mueller’s full report, we don’t know whether this is a firm conclusion about lack of coordination or a frank admission of insufficient evidence. The difference is meaningful, both as a matter of history and because it might determine how much further Democrats in Congress are willing to push committee investigations of the matter.
The other big reveal in Barr’s letter is that Mueller “determined not to make a traditional prosecutorial judgment” about whether the president obstructed justice over the course of the two-year investigation of Russian interference in the election. Instead, Mueller laid out the relevant evidence “on both sides” of the issue, but did not resolve what the special counsel saw as the “difficult issues” of fact and law concerning “whether the President’s actions and intent could be viewed as obstruction.” Mueller’s report “does not conclude that the President committed a crime, it does not exonerate him.” Mueller punted.
Why would Mueller spend so much time investigating obstruction of justice but not reach a conclusion? We won’t know until we read his report. But Mueller, a career G-man, is fundamentally legally conservative. That means he has a narrow view of his own role and a healthy respect for the authority of the other branches of government. He might believe that the evaluation is so inherently political that no conclusion he could offer would ever be seen as legitimate, and that the matter is better resolved through Congress’s constitutional authority to impeach (or not) the president. Even if Mueller didn’t make an explicit recommendation, we’ll probably be able to infer his conclusions by reviewing how he marshaled the evidence for and against guilt. Prosecutors, as a rule, are not good at neutral renditions of facts.
All of that is consistent with my own lay reading of the letter. As the title suggests, White is critical of Barr:
The attorney general showed no such circumspection. In less than 48 hours, he and Deputy Attorney General Rod Rosenstein—who supervised Mueller for most of his investigation—“concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offence.” Though Barr emphasized that he and Rosenstein had been involved in evaluating the status of the investigation for months, and that they consulted the Office of Legal Counsel and other Department of Justice experts, this conclusion reflects startling and unseemly haste for such a historic matter.
Crucially, we don’t know whether Barr concluded that the president didn’t obstruct justice or that he couldn’t obstruct justice. 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.
White’s reading here differs from my own. I read Barr’s statement that “Our determination was made without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president” as an indication that they had set aside the couldn’t question.
White’s opinion vis-a-vis release of the report matches my own:
Mueller’s report was initially confidential under Department of Justice regulations governing the special counsel. In Sunday’s letter, Barr said his goal was to release as much of it as possible consistent with the law. In particular, he noted that the report includes information about matters occurring before a grand jury that are secret as a matter of federal law, and that some other references in the report might reveal the status of ongoing investigations. Barr must abide by his promise to resolve those questions promptly and in favor of as much disclosure as the law permits. It’s impossible to evaluate the results of Mueller’s investigation—and their legal, political, and historical significance—without the details.
Evaluation of the Mueller report, Barr letter, and what the findings mean are inevitably colored by one’s view of President Trump. But it’s worth noting that the analysis here goes against partisan interest.
The Lawfare team are mostly Democratic in their sympathies. Wittes is much closer to the vest but, I think it’s fair to say, not at all a fan of the President. He’s also the most scrupulously fair-minded analyst I know, resisting the urge to get out ahead of the facts to an uncanny degree.
White, a former federal prosecutor turned criminal defense attorney and 1st Amendment evangelist, strikes me as a libertarian. He’s definitely not a Trump supporter.
So, to the extent these analyses tend to favor Team Trump, they’re admissions against interest. We should take them seriously.