Trump and Putin shaking hands
Credit: Shealah Craighead/Flickr

Robert Mueller followed the guidelines that govern the role of a special prosecutor, which state that once an investigation is completed, he “shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.” The report clearly states that the standard Mueller used was to determine “whether the conduct constitutes a crime; if so, whether admissible evidence would probably be sufficient to obtain and sustain a conviction.”

Because of those guidelines, Mueller’s report states very clearly that they did not absolve the Trump campaign of collusion.

In evaluating whether evidence about collective action of multiple individuals constituted a crime, we applied the framework of conspiracy law, not the concept of “collusion.” In so doing, the Office recognized that the word “collud[e]”…has frequently been invoked in public reporting about the investigation. But collusion is not a specific offense or theory of liability found in the United States Code, nor is it a term of art in federal criminal law. For those reasons, the Office’s focus in analyzing questions of joint criminal liability was on conspiracy as defined in federal law.

Asha Rangappa wrote that a focus on investigating the criminal case for conspiracy was destined to come up short.

As a former F.B.I. special agent who conducted counterintelligence investigations, I can attest that foreign intelligence services do not operate on the basis of explicit agreements or even actions that, standing alone, constitute criminal activity.

Foreign intelligence services rely on manipulating vulnerabilities over time — like greed, or fear of exposure of a secret — to puppeteer those under their influence into acting in their interests without saying a word…Counterintelligence is, in effect, chasing ghosts, which is why the tools used to investigate foreign intelligence activity are secret, like human sources or electronic surveillance. It is not the stuff of which criminal prosecutions are made, and it is partly for this reason that operatives rarely see the inside of a courtroom.

In what could amount to a statement about collusion, the Mueller report included this:

The investigation also identified numerous links between the Russian government and the Trump Campaign. Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.

The case for collusion is the one Representative Adam Schiff, chair of the House Intelligence Committee, made in his now-infamous remarks about #YouMightThinkItsOkay.

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That is why Representative Schiff continues to say that we have ample evidence of collusion in plain sight, which is now documented in the Mueller report.

Responding to attacks by White House counselor Kellyanne Conway, Rep. Adam Schiff on Sunday insisted his criticism of the Trump administration was not wrong, saying there was “ample evidence of collusion in plain sight.”

“I use that word very carefully,” the California Democrat said on ABC’s “This Week,” “because I also distinguish time and time again between collusion, that is acts of corruption that may or may not be criminal, and proof of a criminal conspiracy. And that is a distinction that Bob Mueller made within the first few pages of his report. In fact, every act that I’ve pointed to as evidence of collusion has now been borne out by the report.“

Trump’s enablers are now furiously spinning the idea that the Mueller report exonerates the president of any crimes. But unlike the guidelines governing a special prosecutor, the founders did not limit impeachment to criminal charges. Relying on the definitive examination of the issue written by Charles Black Jr. in 1974 titled Impeachment: A Handbook, Jane Chong writes:

Black’s point is that given the structure of the impeachment provision—providing that the president shall be impeached for “Treason, Bribery, or other High Crimes and Misdemeanors”—the last category must refer to the same “kind” of offenses as “treason” and “bribery.” He interprets this to mean that the offenses must (1) be “extremely serious,” (2) “in some way corrupt or subvert the political and governmental process,” and (3) be “plainly wrong in themselves to a person of honor, or to a good citizen, regardless of words on the statute books.”

Note what Black does not include here—any suggestion that “high Crimes and Misdemeanors” must be, like treason and bribery, crimes. Instead he devotes significant energy to arguing the opposite. An impeachable offense need not be a crime—and a crime need not constitute an impeachable offense.

According to the authors of the Constitution, it is members of Congress who are charged with determining whether Trump’s collusion with the Russians (1) was extremely serious, (2) subverted political and governmental processes, and (3) would be plainly wrong to a person of honor, or to a good citizen.

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