“If this is what a complete and total exoneration looks like, I’d hate to see a damning 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.
Jessica Levinson, law professor, Loyola Law School
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.
Miriam Baer, law professor, Brooklyn Law School
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.
Stephen Legomsky, law professor, Washington University
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.
Peter Margulies, law professor, Roger Williams University School of Law
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. But Barr also released the Mueller report with far fewer redactions than many feared. It’s up to Congress, the media, and the public to read the entire report to get a full picture of the president’s repeated efforts to undermine the justice system and the concerted attempts by government lawyers and other aides to pull him back from the precipice.
Keith Whittington, politics professor, Princeton University
If this is what a complete and total exoneration looks like, I’d hate to see a damning report. We have often been cautioned not to rush to judgment because we did not know what the Mueller team knows. It turns out that the broad contours of the investigation’s findings had largely found their way into the public sphere, but the report collects all that information in a single place and provides new details that do not put the president in a favorable light.
The good news for the White House is that Mueller could not prove a criminal conspiracy involving the Trump campaign to have Russia influence the 2016 elections and that Mueller did not recommend obstruction of justice charges. The bad news is that the campaign demonstrated an unseemly willingness to benefit from Russian interference and that Russia made lots of efforts to interfere in the election.
Moreover, the president has behaved remarkably badly in regard to the investigation into the 2016 campaign. Mueller was appropriately cautious about reaching legal conclusions regarding obstruction of justice given the aggressive legal interpretation that would be needed to pursue a case against some of the president’s actions and given that Justice Department policies would preclude those legal conclusions from being translated into indictments of a sitting president.
The president might have an innocent explanation for some of his actions, or at least a credible claim of mixed motives, but he repeatedly took actions that he was strongly advised would be highly inappropriate and was saved from more damaging consequences by the willingness of others to ignore the president’s preferences. The courtroom is probably not the right venue for calling the president to account for his actions, but the report leaves little doubt that the president does not appreciate the responsibilities of his office.
Victoria Nourse, law professor, Georgetown University
“Putin has won.” Election Day 2016, an intercepted message to Kirill Dmitriev, a Russian national “closely connected to Putin.” (On page 149 of the Mueller report.) This line says everything that the American public should remember about the Mueller investigation. Russian interference in the election has been established beyond doubt. Worse, Mueller found that the Trump campaign “expected to benefit” from criminal actions by Russians who successfully targeted the American election. It is not a crime for any citizen to associate with criminals and spies, nor to enjoy their favors, but that is surely too low a standard for a president of the United States.
Viewing this case through the lens of criminal law is a mistake. The president takes an oath “to take care that the laws be faithfully executed.” Few constitutionalists believe that the special counsel would indict a sitting president for an ordinary crime. The constitutional power to judge a president is left to Congress. Congress must determine whether there has been a constitutional offense.
We now know that, contrary to his oath to “take care” that the laws be faithfully executed, the president tried to fire the special counsel, and he fired the head of the FBI, among other acts to thwart the investigation of criminal election interference by our enemies. These are not the acts of one faithful to the law. They are acts of one who would put his own election above the integrity of America’s democracy.
Ric Simmons, law professor, Ohio State University
After reading the full report, it is much harder to understand why Mueller determined that there was insufficient evidence to believe that the president was guilty of obstruction of justice. The primary reason seems to be lack of evidence that the president had a “corrupt intent.” But in reviewing the 10 episodes in which the president may have obstructed justice, the report concludes numerous times that there is “substantial evidence” that the president acted with the intent to impede ongoing criminal investigations, or that a “reasonable inference” is that the president acted with such an intent.
Furthermore, the report noted that the president refused to cooperate with the investigation with regard to answering questions on potential obstruction of justice charges, and that the Mueller team declined to issue a subpoena in order to pursue the issue. But if the question of the president’s intent was unresolved, and thus the question of whether the president was guilty of obstruction remained unresolved, a subpoena of the president would be a critical next step in the investigation.
While there may have been good reasons not to pursue a subpoena against the president, this omission in the investigation leaves open a very significant question regarding whether the president is guilty of obstruction charges.
Ilya Somin, law professor, George Mason University
The redacted version of the Mueller report released today paints an unflattering picture of President Trump, particularly on the question of obstruction of justice. Although special counsel Robert Mueller did not reach any conclusion on whether the president should be prosecuted for obstruction, he did conclude that “Our investigation found multiple acts by the president that were capable of exerting undue influence over law enforcement investigations, including the Russia-interference and obstruction investigations.”
Trump’s efforts to hamstring the investigation mostly failed. But that was “largely because the persons who surrounded the president declined to carry out orders and accede to his requests.” The fact that White House counsel Donald McGahn and other legally sophisticated officials refused to carry out the president’s orders is a strong sign they considered them improper and likely illegal.
The report also includes a compelling response to claims that the president could not have committed obstruction of justice, if he did not commit any underlying crime related to Russia. As the report notes, “obstruction of justice can be motivated by a desire to protect non-criminal personal interests, to protect against investigations where underlying criminal liability falls into a grey area, or to avoid personal embarrassment.”
All of these motives were very plausibly present in the case of Trump. Trump had a strong incentive to impede the investigation in order to prevent its revelations from “calling into question the legitimacy of his election,” and because of “potential uncertainty” about whether some of the information revealed “could be seen as criminal activity by the President, his campaign, or his family.”
An additional possible motive was preventing revelation of crimes by his close associates that were not directly related to “collusion.” The Mueller investigation did in fact reveal many such crimes, and several close associates of Trump’s have been convicted of various offenses.
On the question of collusion, the report is largely good news for Trump. The investigation did not find enough evidence to justify filing charges. But the report documents extensive contacts between the Trump campaign and Russian agents. The latter sought to help the former, and the campaign hoped to benefit from Russia’s actions. The fact that a hostile authoritarian regime believed Trump’s victory would advance their interests, and made extensive efforts to secure that outcome, is highly damning, even if Trump and his associates did not commit any crimes in the process.
In the short run, Trump is unlikely to face legal liability. Justice Department policy forbids prosecution of a sitting president. Impeachment is not so constrained. But successful impeachment leading to removal requires the support of numerous Republican senators, which seems unlikely. Trump does, however, face potential prosecution after he leaves office. The political impact of the report also remains to be seen.
Ciara Torres-Spelliscy, law professor, Stetson University
If the DOJ was a law firm, it would be the largest law firm in the world. Honorable men don’t always run the DOJ. For instance, Nixon’s Attorney General John Mitchell authorized the Watergate break-in when he was still at DOJ. Mitchell served 19 months in prison for his Watergate-related crimes including obstruction of justice. William Barr may be on Mitchell’s path to ignominy.
Barr’s cursory four-page summary was deeply misleading compared to even the redacted version of the Mueller report that has been released to the public. The redacted Mueller report provides what will surely be a first draft of history of the Trump campaign and Trump presidency, and the report does so in damning detail that was absent from Barr’s initial memo, including the multiple contacts between the Trump 2016 campaign, the Trump Organization, and the Trump transition with various Russians.
Barr’s initial characterization of Mueller’s decision not to pursue obstruction of justice seemed to indicate that there was insufficient evidence. But the actual Mueller report seems to indicate that part of why the special counsel declined to make a decision on prosecuting obstruction was because of the DOJ’s longstanding policy that a president cannot be indicted.
Indeed, the report states, “given [that the President cannot be indicted under OLC policy], the facts known to us, and the strong public interest in safeguarding the integrity of the criminal justice system, we conducted a thorough and factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.” This seems to indicate that the special counsel was trying to preserve evidence of potential obstruction crimes for possible future prosecution when Trump was no longer president or for use by Congress.
The Mueller report in Volume I indicates that the special counsel did not decide to pursue potential campaign finance violations including the long-term ban on receipt of things of value from foreign nationals by American political campaigns because of uncertainty about information provided by members of the Trump campaign such as Don Jr. and [Jared] Kushner. In other words, they may not have known that they were breaking the law when they allegedly broke the law. And without that knowledge, it would be impossible to charge them with a knowing violation of the law.
The Mueller report on Volume II, page eight is clear that “Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President’s conduct. The evidence we obtained about the President’s actions and intent present difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state.” In other words, the Mueller report does not exonerate President Trump on the matter of obstruction of justice.
The report also reminds the president that under the United States Constitution, he must “take Care that the Laws be faithfully executed.” And that “the concept of ‘faithful execution’ connotes the use of power in the interest of the public, not the office holder’s personal interests.” (Vol II at 177). And the report ends thusly: “the protection of the criminal justice system from corrupt acts by any person — including the President — accords with the fundamental principle of our government that ‘[n]o [person] in this country is so high that he is above the law.’”
This report gives Congress multiple avenues of investigation to pursue. Accusations of obstruction of justice were counts of impeachment against both Presidents Clinton and Nixon. The open question is whether the Congress will have the stomach to peruse the 10 instances of potential obstruction of justice laid bare in the redacted Mueller report against President Trump now. Moreover, from the redactions that refer to “on-going matters,” clearly other legal shoes are yet to drop.
Jens David Ohlin, law professor, Cornell University
First, the report concludes that Trump personally exerted “undue influence” over law enforcement investigations. Whether that’s a crime or not, it’s certainly intolerable and something that the House of Representatives should take action on. There can be a debate about whether that action should be impeachment or censure, but that political debate has to happen now.
Second, the Mueller report focuses almost exclusively on conspiracy law while ignoring the crime of solicitation under Florida state penal law. In his July 2016 speech in Florida, Trump requested that Russia commit computer hacking to find Clinton’s emails. That may not be a conspiracy, but it is a criminal solicitation under state penal law. It’s also wrong and unacceptable.
The report concludes that Trump tried to have Mueller fired. The Nixon “precedent” is that removing a special counsel constitutes obstruction of justice. If Trump’s attempt to fire Mueller isn’t obstruction of justice, then the new “rule” will be that it’s okay to fire a special counsel investigating the president. That’s completely antithetical to the rule of law.
Frances Hill, law professor, University of Miami
The Mueller report, with redactions and without appendices, does not exonerate President Trump. Instead, it raises more questions about more forms of culpability. The one I find most concerning is the cyberwar launched by Russia against the United States around the 2016 campaign and election. These sections of the report documented the scope of the hostile activities aimed at the heart of our democracy. What was missing was a recounting of the president’s refusal to acknowledge the attack and to take reasonable steps to prevent a recurrence in 2020.
If there were to be impeachment proceedings, articles of impeachments under the “take care” clause and the “commander in chief” should be included in the case against Trump, whose budget cuts and failures to act in the national interest of the United States should not be overlooked or excused. These failures need to be explained to all of us so that we can decide in the 2020 election whether Trump is acting in the interest of the United States.
Finally, the analysis of obstruction of justice efficiently destroys many of the arguments made by the current attorney general in his job application memorandum of June 2018. It appears to provide sufficient evidence for a strong case that Trump obstructed justice in multiple ways. There are instances where the language of the Mueller report appears to be inconsistent with the spin offered this morning by the attorney general.
The paths forward are becoming clearer. Congress should continue to investigate the financial connections between Trump and Russia. But the issue of Trump’s conduct will be in the hands of the voters. This is no time for us to become weary of the betrayals and dysfunctions of this administration. Removing Trump from our national life by defeating him at the polls in 2020 may be the best way to preserve our republic. He can always be tried for his crimes when he is out of office.
Renato Mariotti, former federal prosecutor, 2007 to 2016, and host of the On Topic podcast
The report indicates that there is overwhelming evidence that Trump took extraordinary efforts to try and undermine Mueller’s investigation. Just one quick example: Trump told his White House counsel to fire Mueller, then he told him to lie about it. Similarly, he tried to reverse the impact of his attorney general’s decision to recuse himself from the investigation. And on and on and on. There are just so many instances of Trump seeking to undermine the investigation.
The report also indicates that Mueller did not reach an obstruction conclusion due to concerns arising from the Justice Department’s policy against indicting a sitting president. Mueller concluded that Congress could enforce the obstruction of justice statute when Trump acted corruptly to undermine an investigation. Barr’s suggestions to the contrary were false.
Author: Sean Illing