The much-anticipated (redacted) Mueller Report was released today by the U.S. Attorney General, William Barr. Here are five brief initial observations on it.
I. There is a very important distinction in American law between decisions not to prosecute crimes and whether or not crimes were in fact committed. Decisions not to prosecute potential criminal cases are commonly NOT based on prosecutors’ judgments that the suspects are innocent of crimes. Instead, they are based upon their conclusion either that the evidence was not sufficient to prove beyond a reasonable doubt that crimes had occurred, or that the law presents certain difficulties in application to specific cases, or both. The Mueller Report gives the lie to the Trump Administration’s deceptive claim that it exonerates the President, his family members and other members of his campaign and staff.
II. This is especially clear in the Report with respect to obstruction of justice crimes. Because official Department of Justice (DOJ) policy prohibits the prosecution for crimes of a sitting president, the Mueller investigators determined that they could not make a ‘traditional’ (standard) decision on whether to prosecute the president for obstructing the investigation. Therefore, after detailing many efforts at obstruction they drew no final conclusions on whether the president committed obstruction crimes. Among other considerations in deciding whether to prosecute a case, federal prosecutors are to determine the likelihood of their winning the case. In the face of the DOJ policy on sitting presidents, there was no chance to even bring a case. The ONLY conclusion the Mueller Report reaches on the question of obstruction by the President is that, based on the relevant law and the facts uncovered by the investigation, the Report ‘does . . . not exonerate him’ of the crimes (Report, Volume II, pages 8, 182).
III. The legal distinction is also clear in connection with the Special Counsel’s decision not to charge the President or other Americans with conspiracy, even though we are hearing much less about this decision in today’s news coverage. While it clears suspects of some illegal behavior (for example, conspiring to manipulate deceptive messages in social media), the Report does NOT conclude that there was no criminal conspiracy at all. Specifically, in connection with the June 9, 2016, Trump Tower meeting the Report concludes that there are insufficient evidence and some legal uncertainties that would hamper a prosecution for conspiracy. (There is an additional redacted case that appears to fall into this same general analysis.) Notably, these limitations include the requirement that the conspirators knew they were breaking the law. As children Americans are commonly taught that ignorance of the law is no excuse for crime. But in this specific case of the TT meeting, the law on what constitutes an illegal campaign contribution by a foreign person or government is sufficiently complex that proving that Don, Jr., and others in the room knew their involvement was illegal would be difficult (Report, Volume I, pages 180-187).  As with some other forms of white-collar crime, the law here protects elite members of society from criminal prosecution in ways that it does not protect street criminals.
IV. The Report provides clear evidence that Russian government interests and persons conspired to influence the 2016 presidential election in favor of Donald Trump and against Hillary Clinton. This evidence sharply disproves the President’s long-asserted claims that there was no substantial evidence of Russian involvement in the election.
V. Finally, what the evidence discussed in the Report does prove beyond a reasonable doubt is that the President has violated his oath to ‘preserve, protect and defend the Constitution of the United States,’ and specifically in his failure to ‘take Care that the Laws be faithfully executed’ (Article II, Section 3). This conclusion is further underscored by the Administration’s failure to this point to pursue policies to prevent future foreign efforts to influence American elections.
On to Congress, as the Constitution fairly well insists.
Thank you for making clearer for me Pete.
The Republicans feel that an impeachable offense is lying about a sexual affair in the White House. They do not feel it is an impeachable offense to ask for Russian help in an election, to get that help, and to repay for that help by getting rid of sanctions. Trump was correct that is Presidency should be over. But it is us, the citizens, that got fucked. Where is the patriotic upset over Russians involved in our elections?
Peter, thank you for this extremely helpful analysis.
Excellent!
Thanks for the analysis, Peter. I don’t think I could have articulated as well you but, that was my gut reaction.
And now on to Congress… heaven help us. What a fiasco! There’s no end to what should be investigated. Quit wasting taxpayer dollars and let’s just vote him and all the rest out of office (if possible). Being that this is an election year, everyone’s afraid to do anything. So disgusted!!!
You have clarified several issues that I originally had when I learned that the Mueller report had not taken a stand on collusion or obstruction. I didn’t understand the nuances of the law enough until you spelled out why he did what he did.
That said, I think Mr. Mueller could have written more clearly in the report (on page 2, I believe) so that those of us less familiar with legal writing could understand the subtle implications.
I’m glad that there are many lawyers among our Congress men and women. Let’s hope they move forward, asap, to pave the way for impeachment, or at least better laws to prevent this disaster from ever occurring again in a future presidency.