The justice system cannot please everyone, but it at least aims to provide some sort of closure. That’s why one of the least satisfying outcomes of Special Counsel Robert Mueller’s report on Russian interference in the election, as summarized by Attorney General William Barr, is its approach to the question of whether President Donald Trump obstructed justice.
Though this message was delivered in a very different way, it is reminiscent not of Watergate or any of the other past presidential standards that have become common analogues, but instead of former FBI Director James Comey’s 2016 recommendation that Hillary Clinton not be charged with a crime in connection with her use of a personal email server while secretary of state. In both cases, Justice Department officials found evidence both for and against a crime. In both cases, they determined that prosecuting a case wasn’t tenable. And in both cases, the outcome is likely to enrage nearly half of the American electorate, splitting the country rather than providing a reconciliation.
Instead of reaching a conclusion about whether the president obstructed justice, Mueller’s team laid out evidence for both cases. Peskily for Trump, because it contradicts his claims, Mueller wrote, “While this report does not conclude that the President committed a crime, it also does not exonerate him.”
In the absence of a determination from Mueller, and sidestepping the complicated questions of whether a sitting president could have been indicted for obstruction, Barr wrote that he and Deputy Attorney General Rod Rosenstein decided not to prosecute, citing three factors. The first is that many of Trump’s actions took place in plain sight. These were not behind-the-scenes machinations, but moves that were (depending on one’s perspective) either brazen transgressions or simple exercises of presidential power, such as firing Comey and then telling NBC News’s Lester Holt that he had done so, because of the Russia investigation. The second is that because Mueller concluded there was no collusion between the Trump campaign and Russia, there was no underlying crime for which the president could obstruct justice. The third was the difficulty of obtaining a conviction beyond a reasonable doubt.
Comey’s July 5, 2016, press conference recommending that Clinton not face charges is best remembered for his harsh words about the then–Democratic presidential candidate, calling her “extremely careless” in her handling of classified information. The decision was a major breach of protocol, because Comey both usurped the attorney general’s authority to decide on charges and disparaged Clinton without indicting her. The Trump White House cited it as the official reason for Comey’s dismissal the next year, though the president himself quickly demolished that pretense with his comments to Holt.
The backlash to Comey’s announcement—not only from Clinton supporters, but also from many current and former Justice Department staffers—shaped the low-key, cautious release of Mueller’s conclusions, including the special counsel’s personal silence and the dry summary of his work released to the public. But Comey’s explanation for his recommendation echoed Barr’s on Sunday.
“Prosecutors necessarily weigh a number of factors before bringing charges,” Comey said. “There are obvious considerations, like the strength of the evidence, especially regarding intent. Responsible decisions also consider the context of a person’s actions, and how similar situations have been handled in the past. In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts.”
The result made no one happy. Clinton’s defenders were angry that Comey had tarred her, even while letting her off the hook. Her critics were even angrier. They reacted in disbelief that the Justice Department could have gathered evidence of wrongdoing and yet still declined to throw the book at Clinton. No one who had previously believed Clinton was guilty was convinced she was innocent.
“The system is rigged. General Petraeus got in trouble for far less. Very very unfair! As usual, bad judgment,” Trump tweeted. “FBI director said Crooked Hillary compromised our national security. No charges. Wow!
Rather than provide a resolution, the Comey statement created greater division and drama. The Barr/Mueller outcome on obstruction will likely turn out the same way. As with Clinton’s email server, most of the essential facts were already known prior to the official announcement. And as with the server, most people’s minds are made up. Trump opponents are not going to read Barr’s letter and conclude that while the president’s actions were unsavory, he was in the right. Instead, they will conclude that Mueller failed to get to the bottom of it, or that prosecutors were cowardly in their charging decisions, or that there’s a cover-up. These are, of course, all the same things that Trump and his ilk said about Clinton.
In both cases, Clinton’s and Trump’s, legal questions are in effect inextricably bound up with politics. Justice Department officials, be they Comey or Barr or Rosenstein or Mueller, can attempt to deal only with the legal dimension, but their conclusions are received squarely within the realm of politics. As a result, the outcome is only more polarization.
The Clinton case holds one more lesson for the current moment, which is that an investigation’s legal conclusions are not the last word. The email scandal arguably cost Clinton the 2016 election—it amplified existing suspicions about her trustworthiness, and the brief reopening of the case in October 2016 couldn’t have come at a worse time for the Clinton campaign. The second-order effects of Mueller’s report are unpredictable as well. The special counsel’s conclusions are about as rosy for the president as he could have hoped, but the long-term political impact might not be clear until at least November 2020.