If Mueller believed it was inappropriate to pronounce on the president’s guilt — after all, the Justice Department has a long-standing policy against indicting a sitting president — he could still be following the example of Leon Jaworski, the Watergate independent counsel who decided against indicting President Richard Nixon, but instead submitted to Congress an extensive accounting of all the facts surrounding his efforts to shut down the investigation. Jaworski’s testimony skipped all the adjectives and adverbs. It simply told the story and allowed the branch of government tasked with oversight to do the rest.
What Mueller may not have anticipated (and perhaps could not have avoided) is that Barr would improperly declare the president’s guilt or innocence. But that doesn’t mean Mueller came up empty-handed.
The attorney general does have a role in determining what to show Congress. In particular, he should redact information drawn from grand jury testimony and anything that might give away the tools of American espionage. But why did Barr, in his own letter to Congress describing Mueller’s work, reach a definitive conclusion about the absence of criminal guilt? “The Special Counsel’s decision to describe the facts of his obstruction investigation without reaching any legal conclusions leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime,” Barr wrote. But “the Special Counsel’s decision” did not require this at all. Instead, Mueller may have intended for Congress or voters to reach their own conclusions about Trump’s wrongdoing. It was Barr, not Mueller, who decided that Barr should be the judge.
What in the report might challenge Trump’s claim that he has been “exonerated”? The initial portion could document the intervention by military agents of a hostile foreign power in an American presidential campaign. Yes, we already know the outlines of this attack from the allegations in Mueller’s grand jury indictments of Russian operatives. But it would nonetheless be startling to read a coherent account of this brazen attack on democracy. The counterintelligence portion may prove deeply embarrassing to those who argue that Mueller’s investigation should never have existed. Will those critics really maintain that Congress and the American people should be kept in ignorance about such an attack on the United States? This section may also establish that the media “obsession” with “Russia-gate” was entirely proper, indeed essential.
Mueller’s appointment also required him to study “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” The absence of indictments of Trump campaign officials has left many of Trump’s critics feeling crestfallen and many of his defenders feeling vindicated. Both responses may be an overreaction. Barr says, “The investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.” And, yes, none of Trump’s campaign officials will serve time for complicity with the Russians.
But that hardly means there’s no damaging information about them. The standard by which Mueller measured provable criminality appears (appropriately) to be quite demanding. According to Barr’s letter, Mueller determined that what was needed to establish “coordination” was an “agreement — tacit or express — between the Trump Campaign and the Russian government on election interference.” This standard might preclude indictments where campaign officials knew of Russians’ interference and even welcomed it, but where the special counsel’s office could not expect to prove beyond a reasonable doubt that there was an actual “agreement” between the campaign and the Russian government. Even in the absence of indictments in connection with complicity, simply narrating the Russian attempts, and what the Trump team knew about them, would highlight the president’s utter failure to fashion an adequate defense of American democracy.
The most damaging aspect of the report would be a thorough account of Trump’s efforts to obstruct justice. The known facts (firing an FBI director who refused to pledge loyalty and cease an investigation; the demand that an attorney general “unrecuse” himself to protect the president; the call for an investigation of the father-in-law of a witness against Trump; the dangling of pardons before witnesses) are all bad enough. The report probably contains others. Don’t forget the allegation that Trump asked the CIA director and the director of national intelligence to push the FBI director to end his investigation of former national security adviser Michael T. Flynn. Don’t forget: The famous “smoking gun” Oval Office tape that forced Nixon’s resignation had him ordering the CIA to persuade the FBI to end its investigation of the Watergate break-in.
Barr’s letter says that Mueller included facts on “both sides of the [obstruction] question.” That statement does not rule out the possibility that the facts are strongly on the side of guilt. But Mueller may simply have determined that he was bound by the 2000 opinion of the Justice Department’s Office of Legal Counsel (OLC) that a sitting president should not be indicted. The OLC held that an indictment would create an unacceptable “cloud over the presidency,” and so it should wait until after a president leaves office. Following his agency’s rule may have deterred Mueller from introducing that “cloud,” particularly in his role as a lone prosecutor who would be unilaterally proclaiming, without trial, that the president is guilty of a federal crime. His caution would be understandable.
If Mueller reasoned that way, he would have concluded that such a judgment should be left to the political branch of government. Congressional review is especially appropriate, because the worst offenses may not be criminal, and may demand something broader than a legalistic focus. It would be a grave offense for a presidential candidate secretly to be indebted to a foreign power and to lie about that relationship, for instance. But nothing in the criminal code forbids it. This is why we have the phrase “high crimes and misdemeanors.”
There was a time when it was thought that firing Mueller would lead to mass demonstrations nationwide. Prominent lawyers quietly discussed the necessity of being arrested for chaining themselves to the doors of the Justice Department if it came to that. Would that outcome really be so different from one in which the release of the report is indefinitely delayed or its contents excessively redacted? Both cases would prevent the public from finding out what the government discovered.
During my years teaching constitutional history, I reviewed day-by-day the debates at the 1787 Philadelphia Convention. I was struck by how often the Constitution’s framers voiced fears of foreign influence in American affairs. The delegates repeatedly fretted that the fledging nation would become a plaything of European politics, leading to the emergence of a “French party” and a “British party” that would sap our capacity for self-rule. But I thought Americans would never tolerate foreign meddling, and I regarded their worries as unrealistic, even foolish. Until now.
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