Parsing of the brief letter sent by Attorney General William P. Barr to Congress on Sunday began the moment it was released. Barr listed the highest-level findings from special counsel Robert S. Mueller III’s two-year investigation into Russian interference in the 2016 presidential election and quoted the confidential report’s conclusion verbatim: “[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”
The Mueller report was written by one prosecutor — Mueller — for another prosecutor — Barr — and both understand there is legal weight in the choice to include or omit each word.
If Mueller “did not establish” collusion, why didn’t he also refute it?
What is collusion?
Barr first discussed what has come to be coined as “collusion” — a word that was noticeably absent from the letter — between the Russian government and the Trump campaign or officials affiliated with it. Then, the four-page document addressed whether actions taken by President Trump raised concerns over obstruction of justice.
“Collusion” has become an accepted term for the wide-ranging allegations of illegalities Trump and his associates could have committed. Legally speaking, “collusion” has no meaning. It’s not a federal crime, and Mueller’s charge was to investigate possible “links and/or coordination” between the Russian government and individuals associated with the Trump campaign.
According to Barr, Mueller’s report “determined that there were two main Russian efforts to influence the 2016 election:”
The first was a disinformation and social media campaign by the Internet Research Agency designed to “sow social discord, eventually with the aim of interfering with the election.”
The second was a successful hack into computers “affiliated with the Clinton campaign and Democratic Party organizations” by Russian government actors, who “publicly disseminated those materials” through intermediaries, such as WikiLeaks.
What did the Russia probe prove?
Under federal law, a conspiracy is an agreement between two or more people to commit a crime against the United States. There must be an overt act done in furtherance of, and with the intent to achieve, the conspiracy’s objective. (Existence of that specific intent cannot be inferred from the act itself.)
In assessing potential conspiracy charges, Barr said, Mueller considered whether members of the Trump campaign “coordinated” with the Russian election interference. The special counsel defined “coordination” as an “agreement — tacit or express — between the Trump Campaign and the Russian government on election interference.”
The attorney general noted that Mueller brought charges against “a number of Russian nationals and entities” in connection with the disinformation campaign but “did not find that any U.S. person or Trump campaign official or associate conspired or knowingly coordinated” with the Internet Research Agency’s efforts. (It’s worth adding that Mueller includes “knowingly” for the coordination relating to the Internet Research Agency efforts, something he omits when discussing the computer hacks.)
Barr also wrote that Russian military officers were charged with the computer hacking conspiracy, but “despite multiple offers from Russian-affiliated individuals to assist the Trump campaign,” Mueller’s team “did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in these efforts.”
When a prosecutor says “the investigation did not establish” an offense, that is not to say the crime wasn’t committed or that there was not evidence supporting it. It means that there was not sufficient proof of conspiracy or coordination to prove it beyond a reasonable doubt.
But Barr’s letter, without more, could also mean a top campaign official knew about ongoing Russian interference but did not take the overt act necessary to become a co-conspirator. It could mean that several officials knew about, even encouraged, the election’s influence but didn’t agree to help commit the crime. Or it could mean, as the president tweeted Sunday, there was “no collusion.”
Without a fuller account of the Mueller report, it will remain unclear whether this is truly a no-collusion conclusion or merely that Mueller uncovered conduct that came up short of being indictable.