Attorney General Bill Barr’s summary of Special Counsel Robert Mueller’s final report—released on Sunday to Congress and the public at a slim four pages—was greeted as putting to rest the questions that have swirled around President Donald Trump’s campaign and its relationship to Russia.
But reports of the end of this chapter of Trump’s presidency have been greatly exaggerated. The only document that has so far become public is Barr’s highly truncated summary of Mueller’s report—which is not the same as the report itself. This is a time of suspended animation, after the investigators have finished their work but before it’s clear precisely what the conclusion of that work means.
The debate has shifted out of the legal playing field and into the realm of politics without any of the political players knowing what information they’re dealing with. The problem is that Mueller’s report itself is not yet public. So while the matter at hand is definitively no longer one for the courts, members of Congress and the public at large—who will need to decide what is and is not acceptable in public life—don’t yet know the things they need to know in order to make an informed decision. Between the idea of Mueller’s report and the reality of its appearance, in other words, falls the shadow.
Barr’s letter certainly offered new and even important information. Mueller’s investigation, he quoted the special counsel’s report as saying, “did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.” Barr also wrote that Mueller “determined not to make a traditional prosecutorial judgment” as to whether or not the president had obstructed justice, declining both to implicate the president in the commission of a crime and to exonerate him.
President Trump, never one to linger on nuance, was predictably gleeful: “No Collusion, No Obstruction, Complete and Total EXONERATION,” he tweeted, inaccurately. The press, meanwhile, seemed ready to declare the story of the Russia investigation over and done with. “A Cloud Over Trump’s Presidency Is Lifted,” read a New York Times headline. The Washington Post took a similar approach: “Mueller’s findings seemed to dispel the cloud of conspiracy that has hung over the administration since its inception.”
Barr’s letter is both so vague and so dense with possible conflicting interpretations that one has to have at least a little sympathy for the headline writers tasked with distilling it into a few words. Any careful examination of the material provided by the attorney general ends up snared in double negatives. Consider Barr’s description of the special counsel’s conclusions on whether associates of the Trump campaign “conspired or coordinated” with Russian efforts to influence the 2016 election. As Robert Litt, the former general counsel for the Office of the Director of National Intelligence, has noted, neither Barr nor the portion of the Mueller report quoted by Barr states that the special counsel’s office found there was “no collusion.” Rather, Litt argued, “saying that the investigation did not establish that there was collusion is not the same thing as saying that the investigation established that there was no collusion.” Likewise, this determination hinges on the relatively narrow definition of coordination that, Barr wrote, the special counsel’s office used for legal purposes.
This doesn’t mean that there are other shoes yet to drop. But, however frustratingly, it also doesn’t mean that there aren’t. What it does mean is that, whatever new information Mueller’s report does or doesn’t contain on what has come to be called “collusion,” the final determination of whether the Trump campaign’s connections with the Russian government were or weren’t acceptable will not be made in a court of law.
Perhaps the most baffling portion of Barr’s letter, though, is the section on obstruction of justice. According to Barr, Mueller’s report sets out evidence for and against viewing Trump’s conduct as obstruction of justice, but ultimately declined to make a call one way or another—which is, certainly, highly unusual. Why? What made Barr himself decide it was necessary for the attorney general to make the call that Mueller’s evidence was “not sufficient to establish” that Trump had committed obstruction? To what extent was Barr’s decision—and, for that matter, Mueller’s—shaped by Barr’s aggressive view of the interaction between presidential authority and the obstruction statutes, under which an action definitionally cannot be obstructive if it is authorized under Article II of the Constitution? To what extent did that view mean that Barr wrote off presidential conduct that the FBI worried might be both obstructive and a benefit to Russia—such as firing James Comey as FBI director?
These are important questions, and they are impossible to answer without seeing Mueller’s report itself, rather than Barr’s topline. The questions are even harder because, though Barr’s letter includes quotes from Mueller throughout, each quote is somehow edited or truncated. Or as the legal reporter Adam Klasfeld put it: “The public still has not read a single complete sentence of the Mueller report.”
One possible explanation for Mueller’s decision to neither prosecute nor decline to prosecute, my colleagues at Lawfare and I theorized, is that the special counsel “determined not to make a traditional prosecutorial judgment” because the evaluation of the president’s conduct turned out not to be one for a prosecutor to make. That may be in part because of Justice Department guidelines against the indictment of a sitting president—which, Barr wrote, did not factor into his decision as to the strength of evidence on obstruction, though he is silent as to whether they factored into Mueller’s. It may also flow from the problems posed by how Article II interacts with the obstruction statutes—possibly the “‘difficult issues’ of law and fact” that Barr describes, quoting Mueller.
Again, it’s impossible to know in the absence of the Mueller report itself. But whatever the reasoning, the effect is to pass the matter to Congress and the public. The issue is not a legal question but a moral one: Whether or not the evidence is sufficient to prove beyond a reasonable doubt that this person obstructed justice, is he really the kind of person who is fit to be president?
It’s questionable whether this was ever truly a legal matter in the first place. There was a comfort, though, in imagining that the law was capable of reestablishing the primacy of facts and even accountability for those in power. Barr’s letter makes clear that this is no longer in the cards.
Congressional Democrats have long punted the question of whether to open an impeachment inquiry to after Mueller finishes his investigation. “We have to wait and see what happens with the Mueller report,” said Speaker of the House Nancy Pelosi in January. Now that that investigation is complete, the ball is squarely in Congress’s court. Though some people—most notably the perennial Trump defender Alan Dershowitz—have argued that impeachment requires criminal wrongdoing on the part of the president, this is by far a minority position.
A better guide is Charles Black, who argued in 1973 that impeachable offenses constitute “serious” acts of wrongdoing “against the nation or its governmental and political processes, obviously wrong, in themselves, to any person of honor.” This is a reasonable standard by which to measure the presidential conduct described in the Mueller report—on behalf of both the House Judiciary Committee and the public.
But the report itself is not yet public. The result is that the country floats in a state of suspended animation, an informational hinterland. That may be over soon: NBC reported on Monday afternoon that the FBI was preparing to brief congressional leadership on Mueller’s counterintelligence findings. Meanwhile, according to Barr’s letter, the attorney general is continuing to work with the special counsel’s office to determine how much of the report can be released to the public. How long that will take, though, is anyone’s guess.
After the release of Barr’s letter, Comey posted on Twitter a pensive picture of himself alone in a forest. To me, it recalled Dante Alighieri’s description of fear and uncertainty at the beginning of Inferno, before he meets the poet Virgil, who will guide him through Hell: “I came to myself in a dark wood where the straight way was lost.” Or as Comey wrote: “So many questions.”
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