Two years of drama ended in a Friday night news dump, a brief note from Attorney General William Barr to Congress. The Mueller report was in, he wrote. No more indictments.
The MAGA crowd gloated: President Donald Trump was in the clear. So were Donald Trump Jr. and Jared Kushner. Liberal fantasies of the Trump administration ending with a frog march out of the White House had evaporated.
Two days later, Barr elaborated with a four-page summary of Mueller’s findings.
“The Special Counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinate with Russia in its efforts to influence the 2016 U.S. presidential election,” Barr wrote. Also, he and Deputy Attorney General Rod Rosenstein had “concluded that the evidence … is not sufficient to establish that the President committed an obstruction-of-justice offense.”
Trump declared victory. A rash of “no conspiracy” headlines backed him up. “Special Counsel’s Conclusions Lift a Cloud Over Trump Presidency,” declared The New York Times. The Washington Post called Mueller’s report an “unmistakable political victory for Trump.” Presidential historian Douglas Brinkley told the Post: “Trump actually kind of has inoculation now against other charges against him because he was able to prove his innocence here.”
If that becomes the conventional wisdom, America is truly fucked.
Trump did not, in fact, prove his innocence. And, importantly, none of the people declaring that the report vindicates Trump have read the report; they’re instead responding to a carefully worded summary prepared by a Trump appointee.
Assuming Barr’s letter accurately reflects Mueller’s findings, the special counsel’s report was confined to determining whether Trump’s team conspired with Russia to subvert the 2016 election. But that’s only one piece of the puzzle; it ignores, for example, Trump’s business dealings in Russia, including the planned $300 million Trump Tower Moscow, about which Trump and his allies repeatedly lied, and whether they’d influenced his calls to end sanctions against Russia.
As national security journalist and Mueller obsessive Marcy Wheeler argued in The New Republic, this focus misses the point: “The hack-and-leak is not the crime Trump may have committed. It is, instead, a quid pro quo deal by which Russia would help Trump win and Trump would relieve Russia of the sanctions imposed for engaging in human rights violations, annexing Crimea, and hacking the election to help Trump win.”
On its own terms, Barr’s summary isn’t as definitive as it seems. While Barr says Mueller “did not find that the Trump campaign or anyone associated with it conspired or coordinate with Russia,” that’s not quite what Mueller’s report said. The special counsel actually wrote (emphasis mine): “The investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian Government in its election interference activities.”
Small tweaks, but important ones. “Did not establish” means he couldn’t prove a crime, not that no coordination happened. “Members of the Trump campaign” is notably specific, since court filings indicate that Trump ally Roger Stone tried to coordinate the release of Hillary Clinton’s hacked emails with WikiLeaks with the encouragement of a “senior Trump Campaign official.” The same goes for “with the Russian Government,” as we know not only that Stone coordinated with WikiLeaks, but that Trump campaign manager Paul Manafort gave campaign polling data to an oligarch linked to Russian intelligence and Don Jr. took a clandestine meeting with a Kremlin-connected lawyer peddling dirt on Hillary Clinton.
A bigger problem is Barr’s unique justification for absolving Trump of obstruction. Mueller, Barr wrote, had not reached a “legal conclusion” about charging Trump. Instead, Barr wrote, Mueller laid out the pros and cons. And Barr decided there wasn’t a case.
Of course he did. Last summer, months before he became AG, Barr wrote the administration an unsolicited memo claiming that the president couldn’t obstruct justice by interfering with an investigation, a theory that helped him get the gig. In his summary, he argues that since Trump wasn’t charged with conspiracy, he couldn’t have obstructed an investigation into that conspiracy.
As David Lurie writes in Slate, “If Barr’s view was widely adopted by federal prosecutors, it would provide a truly perverse incentive to engage in obstruction. If wrongdoers knew they were unlikely to be charged with obstruction if prosecutors are unable to obtain sufficient evidence of an underlying crime, they would have every reason to engage in obstruction and witness tampering.”
Even if there was no conspiracy, why would that preclude Trump from obstructing an investigation to prevent personal or political embarrassment, or even a different kind of legal exposure? That would still be obstruction.
Mueller’s decision to punt might seem odd. But Department of Justice policy prevents a president from being indicted anyway. So if Mueller believed Trump committed a crime, he would likely have done exactly what he did: lay out the facts as a roadmap for Congress to consider impeachment. Barr inserted his own opinion and gave Trump the headlines he wanted.
Maybe that’s what happened. Maybe not. But it underscores the need to see the whole report.
And it underscores the need to view the investigation in context—and to remember that the “witch-hunt” netted a whole lot of witches: Mueller indicted about three-dozen people. So far, those indictments have led to seven convictions or guilty pleas and four prison sentences (two people have yet to be sentenced), including Trump’s campaign manager, longtime personal attorney, and national security adviser. In addition, the president was all but named as an unindicted co-conspirator in an ongoing case.
There are more investigations to come—into the Trump Organization, into Trump’s inaugural committee, into all sorts of things. In his best-case scenario, Trump is a knave surrounded by charlatans, a man surrounded by smoke shouting that there’s never been fire. That doesn’t sound like vindication to me.
Contact editor in chief Jeffrey C. Billman at firstname.lastname@example.org, by phone at 919-286-1972, or on Twitter @jeffreybillman.