The Special Counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election. As the report states: “[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”
There’s an important negative in that passage — namely, that the investigation “did not find” or “did not establish” the very activities that hung over Trump World for more than two years. The fine print was unmistakably positive news for President Trump as well as for the entire country. It’s fair to say that Mueller won’t be charging Trump campaign officials for charges related to Russia’s manifest efforts to steer the 2016 presidential election in his favor.
To assert “no evidence,” however, is another matter altogether. Jeffrey Toobin, CNN’s ubiquitous chief legal analyst, tells the Erik Wemple Blog: “One thing we know with certainty is that Mueller is not bringing a criminal case based on the collusion set of issues.” Toobin was addressing none of the journalism of recent days — merely the legal issues at hand. “But that doesn’t mean there’s no evidence of collusion. It only means there’s not a prosecutable case. There’s a world of difference between ‘no evidence’ and not enough evidence to bring an actual case,” Toobin says.
A former federal prosecutor, Toobin noted that people in this line of work don’t traffic in terms such as “no evidence.” Prosecutors tend to speak in terms of “sufficient evidence” to bring a case vs. “insufficient evidence” to do so. Use of the term “did not establish,” says Toobin, is appropriate for these circumstances: “It’s important to recognize what it means. It means not proven. It doesn’t mean zero evidence,” he says.
Ben Wittes, editor in chief of Lawfare and law analyst at NBC News/MSNBC, says that when media outlets cite “no evidence,” such an assertion “may turn out to be a lucky guess, but it is not supported by the current record.”
Though the distinction looks at first like the sort of issue that shouldn’t be allowed past the water cooler, it drives at a larger drama playing out across the U.S. government these days. The whole country is basing its understanding of the Mueller probe on the summary of Barr, an appointee of President Trump who almost a year ago wrote a memo criticizing the obstruction-of-justice theory apparently adopted by Mueller. A four-page summary of a complex and lengthy investigation of this import does not suffice.
Wittes says he’s not “dug in” to any view about what’s actually in the Mueller report regarding collusion or conspiracy. “I accept absolutely Bob Mueller’s judgment as described by Bill Barr that there is no prosecutable case here. But there’s a different question — what happened here? — that this letter does not remotely begin to answer and the press shouldn’t be confusing those two things,” says Wittes, adding that the media should stop deploying the phrase “no evidence” forthwith. “This is not a close call.”
There’s a symmetry, argues Wittes, in the coverage of the Mueller story: “Just as much of the press was irresponsible in its speculations about what Mueller was likely to find, journalists are now being irresponsible in their ambitious characterization of his decision not to bring conspiracy cases,” says Wittes.
The distinction is needling its way into the discussion of the Mueller probe. On MSNBC on Wednesday afternoon, host Katy Tur told Democratic Rep. Raja Krishnamoorthi (D-Ill.), “Bill Barr’s summary says Robert Mueller found no evidence of conspiracy between Donald Trump’s campaign and the Russians — no tacit or explicit conspiracy. Are you saying Robert Mueller might be wrong, or are — what are you saying?” Krishnamoorthi replied, “What I’m saying is there might be evidence of collusion.” Tur: “If there’s no evidence of collusion to rise to the level of crime, what do you suggest as a remedy?"
Rep. Adam B. Schiff (D-Calif.), who chairs the House Intelligence Committee, insists he has seen evidence of collusion and has said, “Undoubtedly there is collusion.”
The Erik Wemple Blog has checked in with several news organizations regarding the use of “no evidence.” The AP responded, “We stand by the lead.” Philip B. Corbett, the associate managing editor for standards at the New York Times, tells us via email that he hasn’t participated in any discussions on this topic, but “our phrasing seems accurate to me.” He cites this line from the Barr summary: “The Special Counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election.”
Cameron Barr, managing editor for The Post, told the Erik Wemple Blog, “We think the point is a valid one. The National desk circulated this guidance yesterday: ‘It is not accurate to say that Mueller found no evidence of a criminal conspiracy between Trump associates and Russia. Barr’s memo states that Mueller did not ‘find’ or ‘establish’ a criminal conspiracy — meaning whatever evidence the special counsel found, it did not rise to the level of that legal standard.' ”
And a CNN representative responded to an inquiry by noting that the “no evidence” passage has been amended to mirror the language of the Barr summary, and that a clarification has been added to the story.
After this blog pushed its “no evidence” formulation into the public realm Monday, a kind Twitter user apprised us of the problem with the term. We issued a correction.
Nor is this an obsession limited to media critics. Jerome Segal, state chair of the Bread and Roses Party of Maryland, lashed out in a statement against the New York Times for its “no evidence” reporting: “I can’t think of a more consequential, more overtly obvious piece of continuing bad reporting than this.”