12 legal experts react to the full Mueller Report
Attorney General Bill Barr finally released Robert Mueller’s Trump-Russia report on Thursday, reasserting his position that the special counsel found no evidence of collusion or the basis for an obstruction of justice charge.
But the actual report is quite damning. It establishes, among other things, a clear fact pattern showing repeated connections between the Trump campaign and Russia. It also outlines 10 potential instances of obstruction of justice that suggest, at the very least, that President Trump actively sought to undermine Mueller’s investigation.
Despite Barr’s statements, top legal thinkers aren’t so sure that the conclusion should be so cut and dried. I asked 12 legal experts to examine what the report had to say about collusion and obstruction of justice. Specifically, I wanted to know if Barr’s decision not to pursue obstruction charges was justified, and if the evidence of coordination between Russia and the Trump campaign amounted to criminal conspiracy.
There was a near-consensus on both questions. While Mueller may not have had sufficient evidence to charge anyone with conspiracy, the experts agree that plenty of evidence exists. The same is true of the obstruction question. As one expert put it, “the Mueller report provides a road map for prosecuting Trump for obstruction of justice, but stops short of this finding because of legal doubts about indicting a sitting president.”
You can read their full responses, lightly edited for clarity, below.
If we were talking about Mr. Trump, not President Trump, we’d be talking about an indictment for obstruction of justice. Today we know that Attorney General Barr put a highly positive (for Trump) gloss on the report. Today we know that Mueller found substantial wrongdoing that would plague, and perhaps end, any other presidency in American history. Today we know that perhaps the difference between a suggestion that Trump be prosecuted for obstruction of justice and a suggestion that he not be was 1) Mueller’s inability to sit down and speak with the Trump without subpoenaing him and Mueller’s decision not to subpoena Trump, and 2) actions by Trump’s staffers that may have protected the president from legal liability.
The headline of the report is helpful to Trump. The actual substance of the report is damning.
The special counsel’s report breaks into two volumes. Whereas the first volume, which focuses on Russia’s interference in the presidential election, contains quite a few redactions, the second volume, which focuses on the obstruction of justice questions, contains very few redactions. Presumably, this was intentional on the special counsel’s part, and one cannot help but wonder whether Attorney General Barr could and should have released the second volume several weeks ago, particularly because of the damning nature of the information contained in that volume.
Even if each of the events described and analyzed by the special counsel independently falls short of establishing obstruction as a legal matter (and that’s a debatable proposition), viewed in the aggregate, they indicate a stunning willingness to ignore and subvert the rule of law. President Trump’s supporters can call it an exoneration, but his opponents may well view it as a road map for impeachment.
Ever since Attorney General William Barr released his purported “summary” of the Mueller report’s conclusions, most media accounts have assumed that Mr. Mueller ultimately decided there was no conspiracy between the Trump campaign and the Russians. We have been told that the Mueller report had thus “exonerated” President Trump of conspiracy charges, though not on charges that he obstructed justice. Some media reports went further, stating that Mr. Mueller had found “no evidence” of a conspiracy. The Democrats, some said, had now been proved wrong even for supporting the special counsel’s independent investigation into the matter.
Those accounts gave the president an undeserved free pass, for even Mr. Barr’s cherry-picked quotes had made no such claims. We can now see that all Mr. Mueller decided on that issue was that “the investigation did not establish” such a conspiracy. To non-lawyers this might seem like splitting hairs, but lawyers understand how important that difference is. “Establish” is prosecutor talk that simply means “I won’t bring an indictment because I don’t think a jury would find the proof of conspiracy to be ‘beyond a reasonable doubt’” — an extremely high standard of proof. As the Mueller report emphasizes in the introduction, “A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.”
To the contrary, we now know that Mr. Mueller found abundant evidence of precisely such a conspiracy between the Trump campaign and the Russians. The section titled “Trump Campaign and the Dissemination of Hacked Materials” was very heavily redacted, but even the non-redacted evidence of conspiracy was substantial: campaign chairman Paul Manafort’s “periodically” sharing internal polling data and other campaign updates with the Russians; the campaign’s promotion of “dozens of tweets, posts, and other political content created by” the Russian hacking operation; Trump publicly urging Russia to search for Hillary Clinton’s “missing” emails; the campaign’s successful effort to tone down the anti-Russian language in the Republican Party platform at the nominating convention; the president’s bizarre support for Putin, resistance to sanctions, and corresponding antagonism toward our NATO allies; the multiple meetings between top campaign officials and Russians with Kremlin ties, including their famous meeting at the New York Trump hotel for the express, albeit ultimately unsuccessful, purpose of getting dirt on Hillary Clinton; and the lies they were caught in when they tried to deny either the meetings themselves or their content.
Whether or not that pile of evidence rises to the level of “proof beyond a reasonable doubt,” it is of grave concern. There is thus ample reason for Congress — which is not subject to the same standard of proof as a criminal prosecutor — to continue investigating this issue, as well as the obstruction of justice question and all the other disturbing allegations surrounding President Trump and his associates. There are also the continuing, very legitimate investigations by various US attorneys’ offices and state attorney general offices. And, of course, there is still hope that at least Congress, and perhaps the public, will find a way to see the crucial information that Mr. Barr has redacted from the Mueller report. So there is much more to come.
The Mueller report paints a disturbing picture of President Trump trying to undermine investigations with a more reassuring portrayal of lawyers and aides seeking to preserve the rule of law. According to Mueller, ex-White House counsel Don McGahn and others “declined to carry out orders or accede to his requests.” The president’s directive to FBI Director Jim Comey to go easy on National Security Adviser Michael Flynn for lying to the FBI met the legal test for obstruction of justice. But Comey refused Trump’s request, just as McGahn shrugged off Trump’s order to fire Mueller.
The Mueller report provides a road map for prosecuting Trump for obstruction of justice but stops short of this finding because of legal doubts about indicting a sitting president. Trump could be charged after he has left the White House, although Attorney General William Barr’s refusal to charge Trump now might make future prosecution seem imprudent or vindictive. In addition, Congress could start impeachment based on Mueller’s road map, although political factors might weigh against that move.
The Mueller report also prompts a mixed verdict on Attorney General Barr. Given the disturbing evidence of Trump’s obstruction in the report, both today’s Barr press conference and the letter Barr released almost four weeks ago seem like exercises in spin.
