The special counsel does not appear to have provided a case for impeaching the president
“IT WAS a complete and total exoneration!” crowed Donald Trump on March 24th, shortly after his attorney-general released a four-page summary of Robert Mueller’s findings. “This was an illegal takedown that failed.”
The president’s euphoria was understandable. After spending 22 months investigating the Russian campaign to rig the 2016 election in Mr Trump’s favour, the special counsel did not find that the president had a case to answer. Yet nor did he exonerate him on all counts.
First the good news for Mr Trump. On the most serious area of wrongdoing Mr Mueller considered, according to Attorney-General William Barr’s summary, he “did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in election interference activities.”
That does not mean Mr Trump’s campaign did not cooperate with the Russian effort. Over the course of Mr Mueller’s investigation several apparent instances of cooperation have come to light. Paul Manafort, the president’s former campaign chairman—who thanks to Mr Mueller is now serving a seven-and-a-half year prison sentence—shared campaign polling data with an alleged Russian agent, for example. And it is possible that Mr Mueller found more such instances. Yet he clearly found no “smoking-gun” evidence that the Trump team were witting participants in the Russian plot. Their dealings with Russians, according to the summary, did not amount to a “conspiracy” or an “agreement—tacit or express...on election interference”.
It will take a fuller disclosure of Mr Mueller’s findings, which Mr Barr has promised, to ascertain quite how reassuring this conclusion is. But it is nonetheless a big win for the president. Despite the nagging caveats—given his team’s many lies, evasions and demonstrable openness to receiving Russian help—it comes as close to corroborating the president’s “NO COLLUSION!!” assertion as he could possibly have hoped.
It will not deter House Democrats from continuing their ongoing congressional probes into Mr Trump’s affairs and Russia. Nor should it. Congressional oversight is different from special counsel investigations. It aims to provide a public reckoning of behaviour antithetical to the public interest, even when that does not rise to the level of criminality, the yardstick Mr Mueller was mandated to consider. And there remain many unanswered questions about Mr Trump’s strange relationship with Russia (for example, why was it so keen to see him elected in the first place?) that it seems Mr Mueller either did not consider or has not resolved.
Nonetheless, the special counsel appears to have allayed the biggest fear of all: that America’s sitting president was a traitorous accomplice to the Russia plot. Good as this is for Mr Trump, it is even better for America, and the Democrats’ oversight effort should be guided by it. If Mr Mueller did not find a smoking gun, they should not expect to.
The other main part of Mr Mueller’s inquiry was a closer run thing. Mr Barr’s summary confirms that the special counsel looked into “a number of actions by the president” that might have constituted an illegal effort to obstruct investigations into the Russian plot. The main investigation, by the FBI, was handed over to Mr Mueller in part because of Mr Trump’s decision to sack the bureau’s then director, James Comey. That was one such action. The president’s subsequent effort to sack Mr Mueller, whose investigation he dubbed a “witch-hunt”, perhaps constituted another.
Both steps looked bad for the president. Yet it was always moot whether they could be conclusively seen as obstruction, given that Mr Trump was empowered by his office to remove both men. Most legal experts think a president can be guilty of obstruction, even when exercising the legitimate powers of his office, if his motives are malign. And sacking Mr Comey in an effort to shut down the Russian investigation would certainly appear to fit that description.
Other experts—not insignificantly including Mr Barr—maintained that a president could not be guilty of obstruction when acting within his legal powers. In the end Mr Mueller, mindful of this thorny legal disagreement, decided not to try to settle it.
According to the attorney-general’s summary of his conclusions, he relayed his findings on Mr Trump’s dubious actions without concluding whether or not they constituted clinching evidence of obstruction. Instead Mr Mueller provided arguments on both sides of the question. According to Mr Barr, “the special counsel states that ‘while this report does not conclude that the president committed a crime, it does not exonerate him either.’”
The attorney-general—who last month returned to the helm of the Justice Department, having previously run it for George H. W. Bush—took it upon himself to settle the matter. He and his deputy, Rod Rosenstein, duly concluded that the evidence provided by Mr Mueller was not sufficient to “establish that the president committed an obstruction of justice offence.” Given Mr Barr’s afore-stated views, this was not terribly surprising. Though the attorney-general in fact offered a different argument in support of their finding. As Mr Mueller had not found the president to be engaged in a conspiracy with Russia, Mr Barr argued, it would be hard to establish that Mr Trump’s quasi-obstructive exercise of his powers was ill-intended.
That might sound like a stretch. The many dodgy ties between Mr Trump and Russia, and his and his associates’ record of lying about them, suggested he had highly questionable motives—short of a grand election-rigging conspiracy—to shut the Russia probe down. In any event, Mr Trump’s opponents will home in on the implication that Mr Mueller provided evidence of obstruction, which he felt unable to exonerate the president on, notwithstanding the legal arguments in favour of doing so. The Democrats will now fight to obtain the details of Mr Mueller’s reporting on this issue.
That battle will shortly take on a political life of its own. In his summary Mr Barr reiterated that, “mindful of the public interest in this matter”, he hoped to make as much of the special counsel’s report public as he could, “consistent with applicable law, regulations, and departmental policies.” Yet that could keep a lot of Mr Mueller’s report under wraps.
Mr Barr noted a provision against disclosure of information brought before a grand jury, which Mr Mueller made heavy use of. He also noted his need to protect material relevant to ongoing investigations, of which Mr Mueller has sparked several, notably including one by the US attorney’s office in the Southern District of New York that is looking into various aspects of Mr Trump’s affairs. Democrats who feel bruised by Mr Mueller’s failure to hang the president will console themselves by getting stuck into the new fight with Mr Barr over disclosure.
But they should not feel bruised. The notion that the special counsel was about to take down Mr Trump has long owed more to feverish Democratic imaginations than reality. The reams of evidence the special counsel has already made public, in hundreds of pages of court filings, did not point to a grand conspiracy between the Trump team and Russian agents. The obstruction case looked hard to prove.
If anything, the heavy burden of proof the special counsel was labouring under made his investigation look like a distraction from the more salient political questions surrounding Mr Trump’s dealings with Russia. For example: do American voters think it acceptable that their president continues to deny the existence of an attack on their democracy by a hostile power, which he has consistently lied about his links to, may owe his job to, and which he has done hardly anything to deter from continuing its assault?
Democrats might also feel Mr Mueller has done them a tactical favour. A more damning report on Mr Trump, including a clear allegation of criminality, would have made it hard for them to avoid impeaching him. Yet that course of action has always looked like a hiding to nothing. Protected by his party, Mr Trump almost certainly could not be removed by impeachment proceedings, and might well be strengthened by a failed effort. Democratic leaders know this perfectly well. Despite well-publicised calls for Mr Trump’s impeachment from a few hotheads, most Democrats in Congress are against it.
The best they could have hoped for from Mr Mueller was therefore a report that justified their continuing oversight operations against Mr Trump, without forcing them to impeach him. The special counsel appears to have delivered something close to that.
In a more abstract sense, indeed, his report appears almost as a rebuke to those who look to the law to solve political problems. Mr Mueller would not put it like this: the celebrated prosecutor is too fastidious and discreet. Yet his conclusions, in so far as Mr Barr has represented them accurately, appear to have added a few important embellishments to the Trump saga, and then kicked it back into the political realm where it belongs. Voters, not prosecutors, will ultimately decide whether Mr Trump is fit to occupy the White House. That is as it should be.