Understanding why Mueller did not reach conclusions on Collusion and Obstruction
Attorney General William Barr’s letter to Congress summarizing the findings of Special Counsel Robert Mueller’s 22-month long investigation into Russian interference during the 2016 election and whether the President’s subsequent actions constituted obstruction of justice made one thing very clear: Interviewing the president was a critical element of Mueller’s investigation.
Without that interview, Mueller could not make a judgment about the president’s intent when he fired James Comey, or when his former campaign manager promised inside access to Russian intelligence officials. Mueller needed this judgment to form a definitive conclusion on either coordination or obstruction, which is exactly why his report makes no determination whether either occurred.
While President Trump and his supporters tout Attorney General Bill Barr’s summary letter to Congress as “Total EXONERATION”, a careful reading of the document provides another lens. Through this lens, we can understand how important interviewing the president was to the investigation, and why Mueller was unable to reach definitive conclusions on both collusion and obstruction.
The Interview
For prosecutors, interviewing a subject is a key part of most criminal investigations. Interviews give prosecutors time to learn about their subject and forge a path toward proving their subject’s intent, if necessary.
So, when President Trump’s legal team denied the Special Counsel’s office request an in-person interview in August 2018, they effectively sealed the deal on Mueller’s investigation without having to use any Saturday Night Massacre tactics that would have guaranteed impeachment proceedings against the president.
It has been recently reported that the reason Mueller never got to interview the president was twofold. First, the president’s lawyers said they were skeptical of whether or not Trump could tell the truth to investigators, thereby opening himself up to the possibility of perjury. Second, and more importantly, the president planned on pleading the Fifth Amendment.
Barr quotes Mueller’s report as stating that the investigation “did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.” [emphasis mine]
To an uncareful reader, this sentence means exactly what President Trump has been exclaiming all along — that there was “No Collusion”. But, notice that the sentence doesn’t actually say “collusion”. Instead, the words “coordinated” and “conspired” are used. This suggests that Mueller was looking at the events as a criminal investigation and whether the evidence uncovered rises to the Department of Justice standards for prosecution. This means that Mueller would need to establish President Trump intended to commit a crime in order to charge him with one.
As Robert Litt, former General Counsel to the Office of the Director of National Intelligence under the Obama administration, points out in an article for Lawfare, “ “Coordination” with a foreign government would be a basis for a finding of criminal liability under the election laws, and “conspiracy” would be a criminal agreement to violate those laws.”
Intent
I think it can be effectively argued that the Special Counsel regarded his mandate as a very limited one, though the scope of it was breathtakingly large.
Instead of prosecuting the president, Mueller may have seen his job as a chief investigator of the events which occurred around the 2016 election. This may be why his office decided to hold onto the Paul Manafort case instead of shoveling it off to the district attorneys in the Southern District of New York or Eastern District of Virginia. After all, Manafort was a key player in Trump’s campaign. And, as court documents have shown, his case was the lynchpin to proving there was some coordination between the Russian government and the campaign, though Mueller could no conclude whether such coordination involved the president.
I wrote about this same topic late last year, offering a take that proving that Trump colluded with the Russian government is nearly impossible to prove in court. The reasoning is simple. In order to prove that collusion occurred, a prosecutor needs to have two things: first, they need to show there was criminal intent; and second, they need to have a tacit, concrete agreement between the colluding parties. Without both parts, there is no case to be made.
Criminal intent is also the underlying aspect of Mueller’s obstruction angle. Barr’s letter admits that he and Deputy Attorney General Rod Rosenstein discussed Mueller’s findings on obstruction and concluded that “ the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.” But, again, this is very different than concluding that evidence of “no obstruction” exists. In fact, Barr makes that clear when he writes that “The report’s second part addresses a number of actions by the President — most of which have been the subject of public reporting.”
This is why Mueller elected not to take a “traditional prosecutorial route”, as Barr’s letter admits. Instead, Mueller left the questions of collusion and obstruction open because he could not establish that there was criminal intent behind President Trump’s actions.
What’s next?
Mueller submitting his report to Barr doesn’t mean the investigations into the president are over. There are still copious ongoing investigations, many of which are at the state level for crimes ranging from tax evasion to the actions of Trump’s foundation.
By taking a non-committal stance, Mueller has essentially placed the ball in Congress’ court. They hold the impeachment and investigatory powers necessary to get to the bottom of what happened during the 2016 election. However, they need to act like they do in order to find out anything close to resembling the truth.
