Mueller’s Conclusions Are Very Different From What Barr Reported

The redacted Mueller report is divided into two volumes:

  1. Volume I describes the factual results of the Special Counsel’s investigation of Russia’s interference in the 2016 presidential election and its interactions with the Trump Campaign…
  2. Volume II addresses the President’s actions towards the FBI’s investigation into Russia’s interference in the 2016 presidential election and related matters, and his actions towards the Special Counsel’s investigation.

Each volume begins with an executive summary, the ones that members of Mueller’s team suggested were prepared to be released publicly. One of the best checks on the attorney general’s transparency is to remember why his office told the New York Times that those summaries were withheld while he crafted one of his own.

[T]he Justice Department quickly determined that the summaries contain sensitive information, like classified material, secret grand-jury testimony and information related to current federal investigations that must remain confidential, according to two government officials.

A review of these executive summaries demonstrates that, while a few minimal redactions were made, they were limited to ongoing investigations—obviously connected to the upcoming prosecution of Roger Stone. There were no redactions related to classified material or grand jury testimony. It would have been easy enough for the attorney general’s office to quickly identify the statements related to Stone, redact them, and release the summaries.

There has been some speculation that Barr might have pressured Mueller to wrap up his investigation early. While there is no direct evidence that he did, it is possible that the executive summaries were written assuming that the report would be released after Stone’s trial was concluded, because every indication is that they took care to avoid revealing any other information that should be kept confidential.

Beyond that, the conclusions of the two volumes pose a direct challenge to what Barr has asserted. On the issue of Russian interactions with the Trump campaign, Mueller was clear that his charging decisions were based on the following:

The standard set forth in the Justice Manual is whether the conduct constitutes a crime; if so, whether admissible evidence would probably be sufficient to obtain and sustain a conviction…

[W]hile the investigation identified numerous links between individuals with ties to the Russian government and individuals associated with the Trump Campaign, the evidence was not sufficient to support criminal charges.

Mueller also made it clear that the investigation was hampered by several factors, including the fact that:

Several individuals affiliated with the Trump Campaign lied to the Office, and to Congress, about their interactions with Russian-affiliated individuals and related matters…

Some individuals invoked their Fifth Amendment right against compelled self-incrimination and were not, in the Office’s judgment, appropriate candidates for grants of immunity…

Some of the information obtained via court process, moreover, was presumptively covered by legal privilege and was screened from investigators by a filter (or “taint”) team…

[T]he Office faced practical limits on its ability to access relevant evidence as well—numerous witnesses and subjects lived abroad, and documents were held outside the United States…

[T]he Office learned that some of the individuals we interviewed or whose conduct we investigated—including some associated with the Trump Campaign—deleted relevant communications or communicated during the relevant period using applications that feature encryption or that do not provide for long-term retention of data or communications records.

Therefore, the special counsel provided this qualification in their conclusion that there was not sufficient evidence of a criminal conspiracy between the Russian government and the Trump campaign.

Accordingly, while this report embodies factual and legal determinations that the Office believes to be accurate and complete to the greatest extent possible, given these identified gaps, the Office cannot rule out the possibility that the unavailable information would shed additional light on (or cast in a new light) the events described in the report.

In the introduction to Volume II on obstruction of justice, the report indicates that the investigators were basically operating on the question of whether or not such charges could be ruled out. They recognized the Justice Department guidelines against indicting a sitting president and were concerned with the fairness of reaching the conclusion that the president’s conduct constituted a federal crime when no charges could be brought. They therefore concluded that:

[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

Finally, Mueller was clear about where the responsibility lies in making the determination of whether the president obstructed justice. The report states (emphasis mine): “we recognized that a federal criminal accusation against a sitting President would place burdens on the President’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct.” A footnote to that statement contains legal references concerning the relationship between impeachment and criminal prosecution of a sitting president.

In conclusion, these executive summaries indicate that there was insufficient evidence to warrant a charge of criminal conspiracy and that, based on the evidence, the special counsel was unable to reach a judgement that the president did not obstruct justice. In other words, the entire report falls far short of exoneration. That is why the attorney general worked so hard to pre-spin it in an attempt to protect the president.

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Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly. Follow her on Twitter @Smartypants60.