When it comes to the Mueller report, believing there are still more questions than answers means refusing to accept the answers. With the release of the redacted report, #MuellerTime is now over. Robert Mueller has ended conclusively the three-year Russiagate tantrum, and chosen not to pursue obstruction via indictment or a direct referral to Congress for action. He could have but he did not. Trump will serve his full term and voters will decide whether he gets another. That should be it.
But it won’t be. Mueller’s inclusion of information on obstruction of justice that portrays unbecoming conduct by the president that nonetheless doesn’t rise to the level of indictable crime allows Democrats to decide where to take this next. Mueller has not tossed the ball to a Democratic Congress to play out its check and balance role so much as handed dirt to Democratic politicians to use as they see fit. It’s an odd end for the righteous Robert Mueller, twisting the tools of justice and state to slander.
The report was issued in two “volumes.” Volume I focuses on Russian interference in the election. Volume II focuses on obstruction of justice.
Volume I concludes two important and exclusive things. First, the Russian government, under Barack Obama’s watch, tried to influence the election via social media and by obtaining Democratic National Committee emails. And second, no American colluded, cooperated, or coordinated with that effort. The report (volume I, page 2) is clear that the Trump campaign’s reacting to or even anticipating released materials was not criminal. A crime would have required coordinated interaction, not merely two parties (in Mueller’s words) “informed by or responsive to the other’s actions or interests.”
An analogy (not in the report) might involve the Clinton campaign and the infamous Access Hollywood tape. The campaign may have heard that the tape was going to leak and exploited its release, but that would not have created “collusion” between Clinton and the leaker.
The report also deflates any credibility left in the Steele Dossier and most of the Russiagate reporting. None of the subplots matter outside of the Washington-Twitter-New York corridor because either they didn’t happen or they did not constitute a crime. That includes the Trump Tower meeting, the Moscow Hotel Project, the polling data, the Alfa Bank server, the changed Republican platform on Ukraine, Jeff Sessions meeting Ambassador Kislyak, the meeting in the Seychelles, Cohen (not) in Prague, Manafort (not) meeting Assange, and Trump (not) ordering Cohen to lie to Congress.
All of that should be in the headlines but isn’t. That’s because of a new focus on obstruction of justice.
Volume I of the report deals with actions taken independently by the Russians that had no coordinated connection to Trump’s own actions or decisions. The second half deals with obstruction of justice, events that occurred because there was an investigation into collusion that itself never happened. Obstruction, like a perjury trap, is a process crime, which can only exist because an investigation exists. As with most of Mueller’s perjury convictions in this saga, there was no underlying crime.
And as with collusion, we already know the ending on obstruction. Mueller did not indict because the evidence did not support it. Attorney General Bob Barr and his deputy Rod Rosenstein, by law the actual intended recipients of the report, agreed with Mueller. Trump’s actions were lawful. Though some of them were troublesome and even immoral, they were not criminal. Most significantly, Mueller could not indict on obstruction because it was not possible to determine that Trump had showed the legally required corrupt intent. All of that precedes any consideration given to Department of Justice and Office of Legal Counsel advice that a sitting president cannot be indicted.
If Mueller had an obstruction case, he would have made it. He could have specifically recommended indictment and made explicit that the complex legal issues around presidential obstruction meant a decision was beyond his and the attorney general’s constitutional roles and must be addressed by Congress via impeachment. He could have indicted any number of people in Trump’s inner circle, or issued a sealed indictment against post-White House Trump himself. He could have said that he couldn’t indict solely because of DOJ/OLC rules and therefore explicitly created a road map for impeachment to guide the next step.
None of that happened. Mueller had no reason to speak in riddles, show restraint, send signals, embed hidden messages, or hint at things that others should do. He could have swung in any number of ways but instead found reason to leave the bat on his shoulder. Volume II should have ended there.
But it seems obvious from reading the report that stories alleging that members of Mueller’s team saw evidence of obstruction that they found “alarming and significant” were true. Barr did a great disservice in omitting at least mention of this from his summary, as it forms the bulk of Volume II and will fuel nearly everything that happens next.
Despite no indictment, the report outlines 10 instances containing elements of obstructed justice by Trump, with a suggestion (volume II, page 8) that someone may want to look again. Apparently not everyone on Mueller’s team agreed with the boss’s conclusion that the evidence was insufficient, and Mueller chose to allow what is essentially dissent Talmudically contradicting his major Volume II conclusion to be baked into his own work.
Mueller was tasked with making an unambiguous decision: either to prosecute or not. He made it, and then included pages of reasons suggesting he might be wrong even as he also found space to say that the dissent might also be missing the key element of corrupt intent. There is no explanation for this confusing, ambiguous, and jumbled departure from traditional prosecutorial judgment. The final line (volume II, page 182) reads like a Twilight Zone script: “while this report does not conclude that the President committed a crime, it also does not exonerate him.”
One focus of the dissent is on Trump firing former FBI director James Comey. For this to be obstruction, Trump would have had to have fired Comey with the corrupt intent to impede the investigation. The Mueller report is clear that this was not what happened. Despite the public messaging, the firing was related to Comey’s mishandling of the Clinton email case. The report shows that the president was angry at Comey for telling him privately that he was not under investigation but refusing to say so publicly, as Comey had done (once) for Hillary Clinton. Volume II, page 75: “Substantial evidence indicates that the catalyst for the president’s decision to fire Comey was Comey’s unwillingness to publicly state that the president was not personally under investigation.” That’s not obstruction of justice; it’s presidential rage.
Yet elsewhere, the report says something more…leading to set up the argument for obstruction post-Comey. Volume II, page 7: “Some of [Trump’s] actions, such as firing the FBI director, involved facially lawful acts,” but “at the same time, the President’s position as the head of the Executive Branch provided him with unique and powerful means of influencing official proceedings, subordinate officers, and potential witnesses—all of which is relevant to a potential obstruction-of-justice analysis.” It was even clearer elsewhere. Volume II, page 157: “[we] found multiple acts by the President that were capable of exerting undue influence over law enforcement investigations, including the Russian-interference and obstruction investigations.”
Mueller’s team concluded that Trump lawfully fired Comey, as the intent was not to obstruct, but it was still dirty play, “undue influence,” not a crime but still something that, according to Volume II, page 2, “presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred.”
Ironically, while Trump was not under investigation when he fired Comey for refusing to say that publicly, he was placed under investigation by the FBI (for obstruction) after he fired Comey.
The report suggests that Trump’s post-Comey actions (broken down into 10 episodes) would have constituted obstruction if seen as a pattern of behavior, not as the discrete acts the law focuses on, and if they had included the critical element of corrupt intent. Those “if” words are doing all the work because there was no corrupt intent. Mueller said so.
So if Trump could not take his obstructive actions to cover up his crimes with Russia because they did not exist to be covered up, i.e. corrupt intent, why did he act in ways that appear designed to disrupt the investigation? Mueller answers the question. Vol II, page 61:
Evidence indicates that the President was angered by both the existence of the Russia investigation and the public reporting that he was under investigation, which he knew was not true based on Comey’s representations. The President complained to advisers that if people thought Russia helped him with the election, it would detract from what he had accomplished. Other evidence indicates that the President was concerned about the impact of the Russia investigation on his ability to govern. The President complained that the perception that he was under investigation was hurting his ability to conduct foreign relations, particularly with Russia.
If you believe Mueller, Trump was concerned about his ability to govern, about as far from corrupt intent as you can get. At the pre-release press conference, Barr agreed with Mueller’s assessment. Trump knew, and Mueller came to know, that he did not collude with the Russians. To show corrupt intent, Mueller would have had to prove Trump was trying to stymie the process that would ultimately clear him. And while there can be obstruction without an underlying crime, that requires even clearer evidence of corrupt intent, because in such cases obstruction on its face is counterproductive.
Everything that’s happened over the last two years was because Democrats, the media, and the FBI falsely conflated Russia’s actions with Trump’s, and then imagined that Trump committed serial acts of obstruction to cover up something he never did.
Prosecutors don’t issue road maps for others. They charge or drop a case. Not charging is a conclusion and the only one that matters in the end. The Mueller report is not a pretty picture of power being exercised. But ultimately Trump did not commit a chargeable crime, and in between some muddled dissent text, Mueller the prosecutor said so.
Politicians, however, are bound by a different code. They can conduct investigations, hold hearings, speculate about what’s under black redaction bars, and file articles of impeachment whose only purpose is to drag Trump through the Benghazi-like muck. They can desperately pursue a climax to this anti-climatic report, but they’ll never achieve it. Democrats know they have no chance of impeaching Trump. The question is, by playing at trying, do they think they have a better chance of defeating him in 2020?
Peter Van Buren, a 24-year State Department veteran, is the author of We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People and Hooper’s War: A Novel of WWII Japan.