While cable TV segments spent Thursday haggling over the meaning of exoneration and the standard for obstruction of justice, the public’s best use of time involved the consumption of the report itself. Robert Mueller’s masterwork is a meandering tale of tantalizing connections and volatile tensions involving America and Russia, the Trump White House and its various subsets, and a rogue’s gallery of friends, lawyers, and associates of the President.
The Mueller team has drawn praise and criticism, but whether it is a Boy Scout troop of straight arrows or a den of partisans, no one doubts that it tried with all its might to find everything that could be found in its examination of Trump and Russia. That’s why the bottom line of “no collusion, no obstruction” is the most dominant development as this chapter draws to a close.
But it will not be tidy. Even though there is no finding of actionable obstructive behavior in its pages, the report was combed mightily by search parties looking for any turn of a phrase that could be stigmatized into looking like criminality.
Some TV hosts and panelists joined Democrats in calling the report damaging, even “devastating” (James Clapper). Other hosts and panelists joined the President in characterizing it as a full exoneration. In seeking answers from the report’s own words, it is worth revisiting that exoneration never happens in law, if defined by the proof of innocence. “Guilty” and “not guilty” are the jury verdicts of record, and the prosecutorial (or investigative) process focuses on a similar binary matter: Did behavior occur which meets the level of a crime?
The Mueller report’s answer to that is no, on both collusion and obstruction.
Some are saying wait: Mueller left obstruction as a nebulous open matter, to be decided by others. This invites a question: Why? The wandering language of the conclusion resembles a concerted attempt to avoid saying no to that key question: “Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President 's conduct,” it begins.
What? Why have we spent two years and millions of dollars if not to come away with some semblance of definitive Mueller wisdom on the President’s conduct?
It continues: “The evidence we obtained about the President's actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state.”
What a jumble. Yes or no—did the President or his administration engage in behavior that strikes the Mueller team as the legal definition of obstruction of justice? That answer is no. So why the contortions? It comes off as: “We found things but it wasn’t really a ‘prosecutorial judgment,’ so we’ll just say we don’t really see evidence of obstruction but nor do we see proof that he didn’t do anything wrong, so let’s just say that if we had found evidence that he did nothing, we would have said so, but we didn’t, so we won’t really say anything about that.”
The money we have spent and the rigors we have endured positively require them to say something about that. And it deserves more than the waffle of the report’s final sentence: “Based on the facts and the applicable legal standards, we are unable to reach that judgment [of no obstruction]. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”
This is wholly unacceptable.
On the question of obstruction, if the Mueller team found a hint of it but short of the evidentiary bar, the answer is no. If they found wide smatterings that resemble obstruction but do not meet its legal definition, the answer is no.
We did not ask Robert Mueller for loose opinions over coffee about how things looked to him. We asked for a cold, clear-eyed legal opinion. The report’s conclusion denies us this, but its pages provide the answer that fuels the Trump mantra: “no collusion, no obstruction.”
The Mueller team has no aversion to clarity on collusion, as early as page 2: “The investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.”
Now we’re getting somewhere.
And from page 181: “The investigation did not establish that the [Russian] contacts described in Volume I… amounted to an agreement to commit any substantive violation of federal criminal law, including foreign influence and campaign finance laws.”
Was that so hard? The Trump campaign met with various Russian folks scores of times, but when the firm question of collusion is asked—Did the President or his associates collaborate to compromise actual election results?—that answer is no.
That is the obstruction answer as well. Mueller is slated for some congressional testimony within weeks; perhaps someone might inquire why lack of sufficient evidence led to a firm answer on collusion but a convoluted muddle on obstruction.