Five Key Facts about the Mueller Report
What we know so far, what we should assume, and what we should wait to find out.
1. We know almost nothing about the Mueller Report.
This is the most important point. What was released Sunday was a summary and conclusions written by the Department of Justice and Attorney General Bob Barr. It was not the Mueller Report itself. Barr’s letter did include a couple of quotes from the actual Mueller Report — including the much-reported sentence: “while this report does not conclude that the President committed a crime, it also does not exonerate him.”
However, no one outside the Department of Justice has seen the actual Mueller Report, so we have no idea what it contains. We don’t even know how long the Mueller Report is.
2. Robert Mueller’s choices don’t tell us much.
Since he assumed responsibilities as special counsel, Robert Mueller has consistently demonstrated his integrity and institutionalism. His team has leaked nothing, he has declined to speak with the press, and the documents he’s filed have been carefully crafted to serve their purpose without creating greater waves than necessary.
Unlike Ken Starr, the special counsel who investigated Bill Clinton, Mueller is not a partisan out to destroy the President at any cost. He is a Republican, appointed by Republicans, and what little we know of his approach suggests a dedication to achieving his assigned task with minimal controversy and drama.
Remember, too, that current legal doctrine says a sitting President cannot be indicted. It’s true this has never been tested before the Supreme Court, but it remains that indicting Trump would have been a radical and dramatic move, completely out of character for Mueller. If anyone were to pursue such a controversial and questionable tactic, it would be the Department of Justice, not the special counsel’s office.
It is a bit more surprising, given what’s been reported to date, that Donald Trump Jr would not be indicted. However, it seemed clear that Mueller was using indictments as leverage to obtain testimony. Few actions would be less dramatic and controversial than indicting the President’s immediate family, and if Mueller felt he already had the information he needed, it would make sense to avoid that move.
The fact is that under current legal doctrine, the only appropriate remedy for Presidential misconduct is impeachment. It’s true that impeachment seems impossible in our current political environment, but for an institutionalist, that fact would be irrelevant: It is entirely in-character for Mueller file a final report that provided facts, and left the final determination to Congress and the DOJ.
Some in the press have suggested that, if Barr’s summary were misleading, Mueller would speak up to say so. This seems, in a word, ludicrous. Mueller has not spoken up so far, there is no reason to believe he would speak up less than three days after submitting his report, if he expects that Congress will still have the chance to review his work. It is, not to overstate things, a stupid idea.
3. Impeachment and criminal prosecution have different standards.
Again, set aside the question of whether impeachment is a realistic path forward. Yes, it’s much discussed, but if we assume Robert Mueller was proceeding under current assumptions, it would also be the only remedy for Presidential wrongdoing, and his report would be written with that in mind.
The standards to prosecute any American for a felony are quite clear. I’ll point you to this tweet thread from Seth Abramson, which lays them out in detail. However, the standards for impeachment are not the same, and not at all clear.
When the Constitution was framed, debate raged over what crimes might justify the removal of a President from office. Ultimately, the standards were intentionally left vague (including “other high crimes and misdemeanors”) with the intention that future Congresses could define for themselves what met that standard. Legal experts have differed over the years over what qualified as a “high crime and misdemeanor,” but the bottom line is that Congress can impeach a President for behavior that might not meet standards for criminal conviction.
So, not knowing what is contained in the Mueller Report, but assuming Mueller was thorough in providing his facts, it can be true that President Trump committed one or more impeachable offenses, but the evidence does not support a criminal prosecution.
4. Barr’s conclusions do not exonerate or absolve the President.
Continuing along that same assumption that Robert Mueller, Attorney General Barr, and everyone else involved accepts the belief that a sitting President cannot be indicted, nothing we’ve seen so far is surprising, although it might fairly be called misleading.
Barr’s summary letter to Congress was carefully worded to essentially say that Mueller’s report did not provide evidence of Russian collusion, or to support a charge of obstruction of justice. In his explanation, Barr essentially says he does not believe he could obtain a conviction with the evidence he has. But as we’ve established, a criminal conviction is not the primary question.
Granted, it would seem strange to the American press to hear that the Mueller Report did not end with a conclusion as to guilt or innocence. After all, their most recent frame of reference is Ken Starr’s heavily partisan report on Bill Clinton, written with the intent of supporting impeachment. But a decision by the special counsel not to draw prosecutorial conclusions is not the same as declaring the President innocent, and Barr’s decision that he could not obtain conviction does not absolve the President of “high crimes and misdemeanors.”
It is also not surprising that Barr would withhold the report long enough to vet and redact key portions. The key question here is how long he withholds the report, and what or how much he redacts.
5. The key question is what Congress will see, and when.
There is no reason to accuse Bob Barr of a partisan conspiracy…yet. It might be true that his carefully worded summary is misleading, and certainly the way it’s been spun in the press — not only Fox, but mainstream outlets as well — amounts to journalistic malfeasance. But if we assume that Congress will soon see the full report, with only the most sensitive information redacted, Barr’s summary is of little consequence.
Of course, if Bob Barr is truly running interference for the criminal enterprise we call the Trump White House, he could sit on the Mueller Report long enough that Congress is denied the chance to act. Too close to the 2020 Election, for instance, and many members of Congress will feel their hands are tied and the voters should decide. Or Barr could do as Trump has done with his tax returns, and make excuses to keep from ever releasing the Mueller Report.
Barr and the DOJ could also, conceivably, redact any portions of the Mueller Report that provided compelling evidence of his guilt. It’s true that Republican control of the Senate makes impeachment seem almost impossible, but it’s also true that a strong enough public outcry could conceivably move even a few Republicans to support impeachment. By hiding any portions scandalous enough to generate that public outcry, Barr could effectively protect the President — and that would amount to conspiracy.
Ultimately, the only thing the Barr summary tells us is that the President’s own Department of Justice will not test a centuries-old legal doctrine and pursue an indictment against him. The real question is when Congress will get to read the full Mueller Report, and how much of it will be concealed from them.