George T. Conway III is a lawyer in New York.
Very little was surprising about the conclusion of the special counsel’s investigation. For one thing, it wasn’t surprising that Robert S. Mueller III’s probe prompted great commotion — a federal investigation involving a sitting president is a momentous event, and concluding it, a historic moment. And most, but not all, of the details in the attorney general’s letter of “principal conclusions” were unsurprising as well.
Let’s start with question of “collusion.” It was never precisely clear what that nonlegal concept meant. If it means what Mueller reasonably took it to mean — an “agreement,” “tacit or express,” with the Russians to interfere with the 2016 presidential election, or, in effect, a conspiracy with the Russians — then it was always virtually unimaginable that collusion, so defined, would ever be found. Russian agents didn’t need Americans to help them do what they were doing — hacking and posting disinformation. If anything, involving Americans, including some apparently blockish ones, could only have fouled up their plans. “Collusion” — or, rather, “no collusion” — was bound to become a straw man for President Trump and his supporters to knock down with glee.
Yet that hardly means that the investigation (which, thanks to Paul Manafort’s largesse, actually turned a neat profit) was either a “witch hunt” or a waste of time. After all, it was a counterintelligence investigation as well as a criminal probe. A core objective — the overarching one, really — was to find out exactly what the Russians were doing. Another was to find out whether there were “links” between the Trump campaign and Russia’s activities. As matters turned out, and quite surprisingly, we now know from public sources that there were links aplenty. So who knows what we might learn on these subjects from Mueller’s still-unreleased report? As Senate Majority Leader Mitch McConnell (R-Ky.) said Monday, “Russia’s ongoing efforts to interfere with our democracy are dangerous and disturbing.” He added that he would “welcome” the special counsel’s contributions toward understanding them.
As for whether the president obstructed justice, that question was always dicey. No one should have been surprised that it raised, as Attorney General William P. Barr’s letter put it, quoting Mueller, “ ‘difficult issues’ of law and fact concerning whether the President’s actions and intent could be viewed as obstruction.” On the law, Barr was probably not wrong to suggest, as he did as a private citizen, that there’s a difference under the statutes between a president destroying evidence or encouraging a witness to lie and a presidential directive saying, “Don’t waste your time investigating that.” But that doesn’t mean the latter can’t be an impeachable offense.
On the facts, obstruction turns on what’s in a defendant’s mind — often a difficult thing to determine, and especially difficult with a mind as twisted as Trump’s. And complicating things even more, paradoxically, is the fact that some of Trump’s arguably obstructionist conduct took place in full public view — something that, with a normal person with normal moral inhibitions, would have indicated a lack of criminal intent. But in the head of Donald J. Trump, who knows?
So it should have come as no surprise that the obstruction case was difficult, and inconclusive. But Barr’s letter revealed something unexpected about the obstruction issue: that Mueller said his “report does not conclude that the President committed a crime” but that “it also does not exonerate him.” The report does not exonerate the president? That’s a stunning thing for a prosecutor to say. Mueller didn’t have to say that. Indeed, making that very point, the president’s outside counsel, Rudolph W. Giuliani, called the statement a “cheap shot.”
But Mueller isn’t prone to cheap shots; he plays by the rules, every step of the way. If his report doesn’t exonerate the president, there must be something pretty damning in it about him, even if it might not suffice to prove a crime beyond a reasonable doubt. And in saying that the report “catalogu[ed] the President’s actions, many of which took place in public view,” Barr’s letter makes clear that the report also catalogues actions taken privately that shed light on possible obstruction, actions that the American people and Congress yet know nothing about.
At the same time, and equally remarkably, Mueller, according to Barr, said he “ultimately determined not to make a traditional prosecutorial judgment” regarding obstruction. Reading that statement together with the no-exoneration statement, it’s hard to escape the conclusion that Mueller wrote his report to allow the American people and Congress to decide what to make of the facts. And that is what should — must — happen now.
But whether the Mueller report ever sees the light of day, there is one charge that can be resolved now. Americans should expect far more from a president than merely that he not be provably a criminal. They should expect a president to comport himself in accordance with the high duties of his office. As all presidents must, Trump swore an oath to preserve, protect and defend the Constitution, and to faithfully execute his office and the laws in accordance with the Constitution. That oath requires putting the national interests above his personal interests.
Yet virtually from the moment he took office, in his response to the Russia investigation, Trump has done precisely the opposite: Relentlessly attacked an attorney general, Mueller, the Justice Department — including suggesting that his own deputy attorney general should go to jail. Lied, to the point that his own lawyers wouldn’t dare let him speak to Mueller, lest he commit a crime. Been more concerned about touting his supposedly historic election victory than confronting an attack on our democracy by a hostile foreign power.
If the charge were unfitness for office, the verdict would already be in: guilty beyond a reasonable doubt.