Upon the publication of Attorney General William Barr’s summary of the Mueller report, a swirl of takes — from legally adroit to wildly speculative — began to envelop the news media and Twitter. President Trump, naturally, courted the simplest possible explanation, claiming that the synopsis was a “complete and total exoneration,” despite the following quote from the summary: “While this report does not conclude that the President committed a crime, it also does not exonerate him.’”
Legal experts took more nuanced approaches to the summary, which stated that the Trump campaign did not coordinate with Russia, and that the Department of Justice would not charge the president with obstruction of justice.
At the End of the Day, It’s Good News for Trump.
To call the summary of the Mueller report anything but a win is a serious misunderstanding of some of the best news for Trump since becoming president. Although he’s not a legal expert per se, 538’s Nate Silver provides a concise explanation of Trump’s good news.
But Trump Might Not Be Fully Cleared of Obstruction of Justice Just Yet.
Writing for the Atlantic, former federal prosecutor Ken White asks why Mueller was so “determined not to make a traditional prosecutorial judgment” about whether or not Trump obstructed justice:
“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 Robert 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 may believe that the evaluation is so inherently political that no conclusion he could offer would ever be seen as legitimate, and 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.
White continues, injecting a little doubt into the summary’s claim that the investigation was “not sufficient to establish that the president committed an obstruction-of-justice offensive.”
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.
William Barr’s Summary Raises More Questions Than It Answers.
Writing in the New York Times, Georgetown law professor Neal Katyal — who drafted the Special Counsel regulations that led to the Mueller appointment — finds that Attorney General Bill Barr presented the public with flawed reasoning for clearing the president of obstruction of justice.
On the facts, Mr. Barr says that the government would need to prove that Mr. Trump acted with “corrupt intent” and there were no such actions. But how would Mr. Barr know? Did he even attempt to interview Mr. Trump about his intentions?
What kind of prosecutor would make a decision about someone’s intent without even trying to talk to him? Particularly in light of Mr. Mueller’s pointed statement that his report does not “exonerate” Mr. Trump. Mr. Mueller didn’t have to say anything like that. He did so for a reason. And that reason may well be that there is troubling evidence in the substantial record that he compiled.
Or Mr. Barr could have concluded that the attorney general, not a special counsel, should carry out such an interview. The fact that Mr. Barr rushed to judgment, within 48 hours, after a 22 month investigation, is deeply worrisome.
New York Times reporter Michael Schmidt also questions how Barr was able to determine that Trump did not obstruct justice:
Could the Report Still Be Damning for Trump?
A panel at Lawfare provided an extensive breakdown of the Attorney General’s summary, including a case for how gaps in the summary will continue to bother the president:
Barr’s summary of Mueller’s report is ominous for the president. While Mueller did not find that Trump obstructed his investigation, he also made a point of not reaching the opposite conclusion: that Trump didn’t obstruct the investigation. Indeed, he appears to have created a substantial record of the president’s troubling interactions with law enforcement for adjudication in noncriminal proceedings — which is to say in congressional hearings that are surely the next step.
Obviously, the Public Needs to See the Full Report to Understand Its Specifics.
A four-page summary cannot fully represent an investigation that took nearly two years and featured almost 500 witnesses. Joyce Alene, a law professor at the University of Alabama and a former U.S. Attorney, explains that if Trump wants to validate his (bogus) claim of “total exoneration,” he should vouch for the full release of the report:
Regardless of What Is in the Full Report, It’s Time to (Tentatively) Accept the Letdown.
According to national security analyst Paul Rosenzweig, the report’s summary requires us to:
Accept the conclusion that there is no solid evidence that Trump and his campaign conspired or coordinated with the Russians.
You have to also accept the conclusion that the evidence of obstruction was equivocal, which is unsurprising given the mixture of Presidential motives at play here and the difficulty of proving obstruction when there is no proof of an underlying crime.
But you have to also accept that the evidence of Russian interference and attempted interference in our election (via social media, and hacking) is overwhelming and you have to also wonder why it is in the face of that evidence the President continues to ignore the issue.
And you have to also accept that the Presidents campaign manager; deputy campaign manager; personal attorney and first national security advisor are felons who belong in jail.
And finally, you have to understand that setting the bar at “POTUS is not a criminal” is setting it way too low. For any of a dozen reasons, Donald Trump is a horrible President. The fact that he isn’t a Russian co-conspirator is small comfort.
Did Mueller Fail to Deliver?
Speaking with Politico, Notre Dame law professor Jimmy Gurulé — who was Assistant Attorney General for George H.W. Bush under Attorney General William Barr — says that Mueller fell short of the Special Counsel’s mandate:
In addition to authorizing Mueller to investigate whether Trump and members of his presidential campaign colluded with the Russians to interfere with the 2016 presidential election, the order appointing the special counsel authorized Mueller to investigate “any matters that arose or may arise directly from the investigation,” which includes whether the president committed obstruction of justice. By failing to reach a conclusion on that matter and, instead, deferring that issue to the judgment of the attorney general, Mueller failed to carry out his mandate and performed a disservice to the American people.
There’s a Sense of Relief Somewhere in the Report.
Picking up on Rosenzweig’s “small comfort” observation, University of Southern California law professor Orin Kerr posits that it’s a good thing that the sitting president of the United States did not engage in a conspiracy with a hostile foreign power.
The panel over at Lawfare concurs: “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.”