|Special Counsel Robert Mueller|
There is a saying in law and law enforcement that, in court, it isn’t what you know, but what you can prove. This is the same rule I applied many years ago as a newspaper editor in deciding what would go into the paper and what wouldn’t—or would, perhaps, if I thought it was newsworthy, but with all of the “allegedlys” and “reportedlys” and sourced quotes necessary to piece a story together without stating it as fact unless we had hard evidence that it was. I still apply that rule to all of my non-fiction writing and opinion pieces.
That’s why I think that, no matter on which side of the deeply partisan US divide we might be, both sides need to admit that Robert Mueller and Rod Rosenstein are both serious public servants who have done their best in a highly conflictive climate to be firmly impartial and to preserve the rule of law, resisting tremendous pressure from all quarters to abandon their best instincts.
|Deputy Attorney General Rod Rosenstein|
Already in his summary, however, Barr has caused surprise by inserting himself into the discussion, making judgments about the level of guilt or innocence of the president and his aides that, according to his own admission, Mueller never articulated in his report. Specifically, Barr says that, “...Assistant Attorney General Rod Rosenstein and I have 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.” In other words, Barr would appear to be arriving at a conclusion that the report itself did not, as far as we know.
Nor is President Trump’s assertion that the report “completely exonerates” him accurate. On the contrary, according to the attorney general, the Mueller Report says specifically that “while this report does not conclude that the President committed a crime, it also does not exonerate him.”
This is an important distinction since it leaves the door open to prosecution of questionable actions in other venues—such as the Southern District of New York. And, as the report indicates, the Special Counsel himself has, according to Barr, “referred several matters to other offices for further action” even though the report makes no recommendation for further indictments within the limits of Mueller’s investigation itself.
|Disgraced National Security Advisor Michael Flynn|
pled guilty to a one-count felony and told all.
It is important to make a distinction too between exoneration of the current administration (and its entourage) from all wrong-doing and simply finding insufficient evidence to lay charges—again, it’s not what you know but what you can prove. Be that as it may, Democrats were quick to quote the rule of law when the Republicans cried foul after the FBI announced that there was insufficient evidence to charge then-presidential candidate Hillary Clinton for her private email escapades. They will need to remember that now, when the GOP cites the Mueller Report as finding insufficient evidence to accuse the president and his associates of conspiracy with Russia to affect the outcome of the 2016 elections or of obstructing justice by firing former FBI Director James Comey.
And a further distinction to be made is between not having sufficient evidence to prosecute and the power of Congress to impeach a president when his misdeeds warrant it, based on political and ethical rather than legal considerations. Nor should public perception be seen as bearing any resemblance to the limitations of legal justice. According to Washington Post legal analyst Henry Olsen, “This evidence could have a quite different effect on public opinion than it would in a legal proceeding. Criminal prosecutions require proof ‘beyond a reasonable doubt,’ and Mueller clearly saw a strong case against Trump under that standard. While Barr decided he did not, reasonable observers could conclude differently. They could also conclude, perhaps, that they have reasonable doubts but think Trump did obstruct justice under the more lenient ‘clear and convincing evidence’ or ‘preponderance of the evidence’ standards. Prosecutors would not look at a criminal case through those lenses, but politicians and pundits are sure to do so.”
Olsen goes on to suggest that “the matter of the president’s intent is key, as a prosecutor would have to prove that such a crime was committed with ‘a corrupt intent.’ Barr writes that the special counsel’s finding that the president was not involved in an underlying crime bore ‘upon the President’s intent’ regarding obstruction. In plain English, that suggests there is evidence that people could conclude constitutes criminal obstruction, but that Trump’s saving grace in the law is that he also could not be proven to have colluded with the Russians. Political observers could disagree.”
|George and Kellyanne Conway|
That point of view appears to be succincty expressed in an op-ed that appeared earlier this week, also in the Washington Post. It’s author was relenteless Trump critic and New York attorney George Conway, who is famously married to one of the president’s closest aides, Kellyanne Conway. According to Attorney Conway, “As for whether the president obstructed justice, that question was always dicey. No one should have been surprised that it raised, as Attorney General William P. Barr’s letter put it, quoting Mueller, ‘difficult issues of law and fact concerning whether the President’s actions and intent could be viewed as obstruction.’ On the law, Barr was probably not wrong to suggest, as he did as a private citizen, that there’s a difference under the statutes between a president destroying evidence or encouraging a witness to lie and a presidential directive saying, ‘Don’t waste your time investigating that.’ But that doesn’t mean the latter can’t be an impeachable offense.”
Conway added that Mueller was a guy who “plays by the rules, every step of the way.” He went on to say that “if (Mueller’s) report doesn’t exonerate the president, there must be something pretty damning in it about him, even if it might not suffice to prove a crime beyond a reasonable doubt.” Beyond the idea of whether or not there is evidence to accuse the president or any of his unindicted associates of anything, Conway indicated that one thing seemed clear: “If the charge were unfitness for office, the verdict would already be in: guilty beyond a reasonable doubt.”
The fact that the investigation was unable to establish criminal conspiracy with the Russians has been taken in pro-Trump quarters as signifying that the whole Mueller probe was a monumental waste of time and tax-payer money—that, in short, it was, as the president repeated ad nauseam, a witch hunt. But nothing could be further from the truth.
To start with, the investigation indeed established that there was significant Russian espionage and intervention in the 2016 election process. Barr describes the Mueller Report as outlining “the Russian effort to influence the election and documents crimes committed by persons associated with the Russian government in connection with those efforts.” Barr goes on to say that “the Special Counsel’s investigation determined that there were two main Russian efforts to influence the 2016 election.”
Donald Trump pictured with disgraced collaborators
Michael Cohen (left) and Paul Manafort
One of these was spearheaded by Russia’s Internet Research Agency (IRA), apparently an intelligence front, which conducted disinformation and social media operations in the US that were “designed to sow discord”—mission accomplished! The other was a hacking operation “designed to gather and disseminate information to influence the election.” According to Barr, “the Special Counsel found that Russian government actors successfully hacked into computers and obtained emails from persons affiliated with the Clinton campaign and Democratic Party organizations, and publicly disseminated those materials through various intermediaries, including WikiLeaks.”
Whether there was collusion or not is clearly of paramount importance, but shouldn’t we be at least as concerned about the fact that the Kremlin managed to infiltrate US data systems and achieve a significant measure of success in influencing the election process, or at the very least, the campaigns as such? On that count, the Mueller probe was clearly a great success, managing to identify and indict a number of Russian operatives, including military intelligence officers. It also established that, if there was insufficient evidence to charge collusion, there were indeed “multiple offers from Russian-affiliated individuals to assist the Trump campaign.” This raises the question of why organizers of that campaign didn’t bother to report these offers to the FBI, considering that they were being made by a hostile foreign power that was clearly seeking to influence the outcome of a US presidential election process.
There was indeed a “there-there” in the investigation. It rendered the indictment of 34 people including 13 Russians and three companies, as well as gleaning a number of guilty pleas, convictions and useful testimony, some of which included top advisers to President Trump, on charges ranging from interference in the 2016 election and hacking emails to perjury and witness-tampering. Collusion or no, this is a very big deal.
Obviously, having access to the full report rather than to the attorney general’s four-page interpretation of it would clear up a lot of what remains a mystery to the people of the United States and their congressional representatives right now. Considering the tremendous weight that this information and the investigation have brought to bear on the US political scene and on the hearts and minds of citizens as a whole for the past two years, perhaps the head of the Justice Department should—except for any redaction necessary to preserve the rights of the innocent and the rule of law—consider the possibility that whether or not the rest of the report should be made public isn’t his decision to make. Morally, he should consider it his duty to the people of the United States to provide the highest degree of transparency possible within the law and to lead by taking the stellar example of his two subordinants, exercising the same kind of impeccable ethics and impartiality that they have demonstrated.
It remains to be seen whether that is what he will do. But the president, at least in public, has said that it is solely the attorney general’s decision and that he, Trump, is willing to release the report to the public. In terms of allaying suspicions and doubts regarding this topic among Americans of all political stripes, it is of crucial importance that William Barr do exactly that.