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Clearing Up Some of the Mueller Report’s Falsehoods

The report "fully exonerates" the president? There are tight limits on what Barr can disclose? Think again.

The airwaves, print, and social media are brimming with false or misleading statements about the Mueller report and Attorney General William Barr’s letter to key members of Congress.

As a concession to the shortness of life and my editor’s insistent word count restrictions in this space, I would like to underscore the most egregious examples, with some accompanying legal clarifications.

1) The Mueller investigation wasted $25 million in a witch hunt because it found no criminal collusion or conspiracy between the Trump 2016 presidential campaign and Russian agents.

False. The purpose of an investigation is not to prosecute a case but to see that justice is done. Justice is vindicated when a prosecutor refrains from indicting individuals where the evidence seems insufficient to prove guilt beyond a reasonable doubt to impartial jurors. Moreover, the Mueller investigation did establish criminal Russian endeavors to influence the outcome of the 2016 presidential election in favor of Donald Trump. That conclusion accords with the unanimous finding of Trump’s intelligence agencies. It discredits Trump’s insistence that Russian President Vladimir Putin told him the truth in denying Russian interference.

2) The Mueller investigation completely exonerates Trump.

False. Trump could still be named as an unindicted co-conspirator by the United States Attorney for the Southern District of New York in its ongoing federal election law investigation of Trump’s pay-offs to a porn star and Playboy Bunny in exchange for silence about his adulteries to influence the outcome of the 2016 presidential election. President Richard Nixon was named as an unindicted co-conspirator in the Watergate cover-up prosecution by Special Prosecutor Leon Jarworski.

Additionally, the Mueller report did not exonerate Trump from an obstruction of justice prosecution once he departs the White House. It marshaled both incriminating and exculpatory evidence but refrained from opining on whether the totality of the evidence proved guilt or innocence because he is bound by Justice Department policy against indicting or prosecuting a sitting president. To boost the political standing of Trump, Attorney General William Barr gratuitously decreed that obstruction was not proven. Barr’s statement commands no legal standing and does not foreclose a criminal prosecution of Trump once he leaves office.

The Mueller report does not close the door on the possible impeachment of Trump by the House of Representatives for “high crimes and misdemeanors.” That concept reaches efforts to subvert the Constitution short of criminality. Article 1 of the three articles of impeachment voted against Nixon by the House Judiciary Committee that forced his resignation charged him with “making or causing to be made false or misleading public statements for the purpose of deceiving the American people” about the Watergate cover-up.  

Additionally, the House could find evidence of obstruction sufficient for impeachment despite insufficiency for a criminal prosecution. The House so acted in impeaching Nixon and President Bill Clinton for obstruction of justice.

Lastly, Trump could be summoned to testify before the House Judiciary Committee. Among other things, he might be asked about his public statements characterizing his motivation to fire FBI Director James Comey and directive to White House Counsel Donald McGann to command Deputy Attorney General Rod Rosenstein to fire Mueller, and his participation in a statement falsely describing a June 2016 meeting in Trump Tower between Donald Trump, Jr. and Russians as about adoptions as opposed to receiving dirt on Hillary Clinton. Defiance of the House subpoena by Trump would be a separate impeachable offense according to the Nixon precedent. Article 3 of impeachment articles voted by the House Judiciary Committee charged Nixon with disobedience to a subpoena issued in furtherance of its sole power of impeachment.

3) Rule 6 (e) of the Federal Rules of Criminal Procedure prohibits Attorney General Barr from disclosing to Congress grand jury materials.

False. The rule authorizes grand jury disclosures in aid of the congressional impeachment power. Thus, special prosecutor Jaworski sought court authorization to disclose a 55-page “Road Map” of evidence assembled before a grand jury relevant to an impeachment investigation of Nixon. Chief Judge John Sirica and the en banc D.C. Circuit approved (one judge dissenting). This Road Map was used in determining whether to prepare Articles of Impeachment against Nixon.

In sum, the Mueller Report will be only the seventh inning stretch of a nine inning game. House Democrats can keep this going if they want, and they probably will.

Bruce Fein was associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan and counsel to the Joint Congressional Committee on Covert Arms Sales to Iran. He is a partner in the law firm of Fein & DelValle PLLC.