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| 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.
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| 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.
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| 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.”
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| 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.”
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Donald Trump pictured with disgraced collaborators
Michael Cohen (left) and Paul Manafort
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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.
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