Mueller’s report is in. Republicans are elated. Democrats are morose. But is either the appropriate response? Much has been left unanswered in Barr’s summary of Mueller’s report over the weekend to Congress—leaving Democrats (and most Americans, according to polls) clamoring to see the full report.
What would a full report, though, actually reveal? Will the Mueller saga have a length epilogue—with new, explosive details unspooling from the report in the coming weeks and months? Or should Americans move on, and focus on other lessons from Mueller’s probe?
“There will be some surprises within the Mueller report”
Harry Sandick, defense attorney and former federal prosecutor for the Southern District of New York
We still have not seen the Mueller report—only the Barr letter, a summary released not by the special counsel but by Trump’s handpicked attorney general. Barr wrote an unsolicited memorandum to Trump rejecting the idea that Trump could be prosecuted for obstruction. Perhaps it is not much of a surprise that Barr converted Mueller’s apparently equivocal report into a strong “no” on obstruction. Even on the collusion issue, we do not know—other than some heavily excerpted sentences—what Mueller concluded, or why. This is not sufficient given the gravity of the issues involved. It is especially insufficient given that the Trump Administration has not earned a presumption of veracity for its public statements, about matters large (North Korea) and small (the size of the inauguration). If the Mueller report was accurately summarized by Barr, then Trump is largely cleared. But it is too soon to say this given the current state of the public record.
It is important for the public and the news media to be patient and not to jump to conclusions based on the Barr letter. Even if the Mueller report is eventually released and it is shown to be different from the Barr letter, it will be difficult for the initial impression—no collusion!—to be erased if the media is not patient. To be sure, initial statements from Trump’s attorney claimed an exoneration, even though the Barr letter itself quoted Mueller saying exactly the opposite. I predict that there will be some surprises within the Mueller report when it is released, including some evidence that will not fit the narrative we are hearing today in some corners.
Finally, the Barr letter does reaffirm that Russia made an effort to interfere with the 2016 election. This is something that Trump has repeatedly questioned, most famously at a joint press conference with Vladimir Putin. Will the president accept that this is true, and support enhancements to our election security? Will he publicly disavow Putin’s efforts and call for them to stop? One hopes that he will do so, although it hasn’t happened yet.
“Quite possible” full report “contains facts of serious misconduct”
Barbara McQuade, professor at the University of Michigan Law School and former United States Attorney for the Eastern District of Michigan
It is quite possible that the Mueller report contains facts of serious misconduct by President Trump or his associates that do not collectively arise to the level of conspiracy with Russia to interfere with the election. Prosecution of cases may be declined for many reasons—insufficient evidence that is admissible under the Rules of Evidence; overriding intelligence equities that require protection of sources and methods of intelligence collection; or conduct that is wrongful, but that does not meet the technical elements of any criminal statutes enacted by Congress. With regard to President Trump, it appears that Mueller was unable to conclude whether Trump’s conduct did or did not amount to obstruction of justice, and left that decision for Barr. That disclosure suggests that there was at least some evidence that made it impossible for Mueller to conclude that there was no violation.
I think it is possible that the Mueller report will address connections with countries other than Russia, such as the UAE or Saudi Arabia. There have been reports that Mueller has given immunity to George Nader, a businessman who reportedly helped set up meetings with officials from the UAE. There have been reports that Erik Prince may have told inconsistent stories about his meeting in the Seychelles with a Russian wealth manager who is reported to be close to Putin. Charges relating to these events would have been a surprise, because they were outside the scope of the first part of Mueller’s mandate to investigate links between Russia and the Trump campaign. But they are within the second part of his mandate to investigate crimes that may arise in the investigation.
What if Mueller found Russians have leverage over Trump?
Julian Sanchez, a senior fellow at the Cato Institute
It’s a little dangerous to speculate about the unknown unknowns. There may be aspects of the investigation, either in the final report or farmed out to other agencies, that aren’t even on the public’s radar. In fact, it seems likely that there are. So we should expect to be surprised.
With that caveat aside, it appears that Mueller’s report focused fairly narrowly on whether the Trump campaign coordinated with Russia in its electoral interference operation, and whether Trump attempted to obstruct the investigation. But we also know that, in the course of pulling on those threads, Mueller’s probe hit on numerous other issues he farmed out to other offices—such as the violations of campaign finance law to which Michael Cohen has already pled guilty, as well as Flynn and Manafort’s status as unregistered foreign agents.
We’ve had hints of many other topics that Mueller’s office probed that wouldn’t necessarily relate directly to those central questions: Whether foreign governments illicitly funneled contributions through Trump’s inaugural committee; whether the Trump Organization was engaged in money laundering or other fraudulent transactions on behalf of Russian oligarchs; whether foreign money was illegally channeled through the National Rifle Association. And we know from court documents that there are multiple ongoing investigations that arose from the special counsel’s inquiry, but are now separate from it. So it seems entirely possible that the biggest “bombshells” to come out of the Mueller probe won’t be found in the report at all, but instead relate to ancillary crimes that other offices are currently investigating.
This was, at least originally, both a criminal and a counterintelligence investigation. And there are a number of questions left unresolved that don’t necessarily relate to criminal conduct, but are highly significant from a counterintelligence or national security perspective. One question is whether Russia had some form of “kompromat” or other leverage over Trump—which might help to explain why they were so eager to promote Trump above other Republican contenders. That could be true without Trump having committed any crime (or any crime directly related to the election) but it would obviously be quite urgent for the public to know about.
There are also questions about the campaign’s stance toward Russian interference that go beyond direct “coordination” or “conspiracy.” We know the campaign was eager to make use of hacked Democratic e-mails, and that Trump and his surrogates sought to cast doubt on Russia’s responsibility for that intrusion long after the Intelligence Community considered these to be established facts. If the Trump campaign knew or believed that Russia was indeed responsible at the time, that might not be criminal, and it might not amount to “conspiracy”—but it would be extremely damning all the same.
It does sometimes seem as though nothing short of an actual felony matters in contemporary American politics. But there’s a wide array of conduct Mueller might have uncovered—“complicity” as opposed to “collusion,” let’s say—that you’d hope would be disqualifying for high office, whether or not it amounts to a literal crime.
The Mueller report is “not a way out” of the Trump presidency
Leah Litman, professor at the University of California, Irvine, School of Law
Attorney General Barr’s letter suggests that the report analyzes a “number of actions by the President—most of which have been the subject of public reporting” on obstruction. The facts that are disclosed in the report might exceed the public reporting that has been done to date on other issues as well, such as the extent of Russian interference in the election, or links between the campaign and administration and Russia. Or consider, for example, the “Moscow Project”—the construction of a Trump Tower Moscow. Any further facts about the extent of those negotiations and the Trump family’s involvement in them (or the involvement of Russian government officials) would raise serious questions about potential economic leverage that Russian government interests had over the Trump family. That may not amount to a crime, but it would raise serious questions about the integrity and security of our government given who leads it.
Or take the Russian influence operations. What if the Mueller report uncovered facts that suggested members of the Trump campaign knew or suspected that it was Russia all along. Again, that may not amount to a crime But it, too, would raise serious questions about the ability of members of this administration to act in the public interest.
I should note, however, there are already serious questions about this, and that those serious questions have already been answered by this administration’s course of conduct. No one should view the Mueller report or the Mueller investigation as some kind of way out or possible savior from this administration. We already have more than enough in the public record to know that Donald Trump is manifestly unfit and unsuited for the office of the Presidency, and that he, his family, and his enablers are making an utter mockery of our system of government and working real harm on people’s lives.
Democrats are “overly optimistic”
Paul Rosenzweig, senior fellow, R Street Institute, and former senior counsel to Kenneth Starr during the Whitewater investigation
I think that the continued hope of evidence relating to the President’s campaign and alleged coordination with Russia is overly optimistic. As portrayed by the Barr letter, Mueller’s conclusions as to chargeable criminality were definitive. This is not to say that there might not be more evidence to adduce but to say that any evidence sufficiently explosive to change the political landscape would likely also have changed Mueller’s assessment. Going down this path will probably disappoint the Democratic investigators.
The same is not, I think, true of the obstruction evidence. There, as Mueller paints it, the evidence was equivocal and in equipoise. The American public would benefit from greater clarity on that issue—both from Mueller as to how his decision-making process was performed, and from Barr as to why he made the decision he did. Again, I doubt that the non-public instances of obstructive behavior will be transformative—more likely than not, they echo acts we already know about. But here, the ultimate conclusion is far more ambiguous and might be worthy of further inquiry.
The full report “could be significant politically, but not criminally”
Alex Whiting, professor at Harvard Law School and former federal prosecutor with the Criminal Section of the Civil Rights Division and the US Attorney’s Office in Boston
I think the facts contained within the report could be significant politically, but not criminally. With respect to possible criminal charges, the report and Barr’s decision on obstruction effectively exonerate Trump. I think it is also likely that whatever emerges will not be sufficient to justify impeachment. However, it is also likely that the facts that are revealed will help shape the perspective of voters on Trump as a President. Were Trump and his close associates reckless or careless in their dealings with Russia? On obstruction, even if Barr has concluded that criminal charges aren’t warranted, voters should decide whether Trump respected the norms of good governance and showed full respect for the law. Or did he instead undermine the rule of law and our justice institutions by his actions? Some voters may not care about these issues, but others will. The facts that emerge now will be relevant to this broader political debate.
Mueller may not have charged Trump adjutants because “criminal law does not outlaw what they did”
Nick Akerman, former federal prosecutor in the Southern District of New York and member of the Watergate prosecution team
With the completion of the Mueller investigation, we should be considering what reforms Mueller, as a result of his investigation, might be able to recommend to help protect our democracy and future presidential elections from foreign computer attacks. For example, when the Watergate Prosecution Force issued its report in 1975, it recommended that no one be appointed and confirmed as Attorney General who had a role in running the President’s election campaign. This recommendation was in reaction to Nixon Attorney General John Mitchell, formerly Nixon’s presidential campaign manager, who was convicted of obstruction of justice for covering up the campaign’s involvement in the break-in to the Democratic National Committee. Unfortunately, as Trump’s appointment of Jeff Sessions as Attorney General demonstrates, this recommendation has not always since been followed.
Mueller, like the Watergate Prosecution Force, is in a unique position to recommend reforms that transcend his charging decisions. One obvious topic that Mueller can speak to is the adequacy of federal criminal law dealing with the Russian hacking into the Democratic National Committee. Mueller’s July 2018 indictment charged 12 Russian GRU Intelligence operatives who hacked into the DNC’s computer systems with violations of the Computer Fraud and Abuse Act, the federal computer crime statute. The stolen emails and documents were used to assist Trump’s campaign. That statute, however, does not make it a crime to possess or use stolen computer data, unlike New York law that makes it a crime to possess stolen data. Did Mueller not charge members of the Trump campaign with the use of the stolen data during the presidential campaign because the federal criminal law does not outlaw what they did? If so, Mueller is in an authoritative position to recommend to Congress appropriate changes to the computer crime statute.
I am not suggesting that these lessons learned be limited to the federal computer crime statute, or just to the criminal law. Mueller, for example, may have found legal shortcomings during the course of his investigation that resulted in the ability of the other Russian intelligence officers to use social media to suppress the Clinton vote. He may have recommendations into how Congress should regulate social media and what conduct should be appropriately criminalized.