It certainly bolstered the Trump team’s case that there wasn’t some large-scale effort to work with Russia to throw an election. But as has been reported, including by The Washington Post’s Philip Bump, the report doesn’t address collusion, because collusion is not a legal concept. Instead, the report was more narrow in its conclusions, finding there was no “conspiracy” or “coordination” between the Trump campaign and Russian government officials.
Here’s the key section:
In evaluating whether evidence about collective action of multiple individuals constituted a crime, we applied the framework of conspiracy law, not the concept of “collusion.” ... The Office’s focus in analyzing questions of joint criminal liability was on conspiracy as defined m federal law. In connection with that analysis, we addressed the factual question whether members of the Trump Campaign “coordinat[ed]” — a term that appears in the appointment order — with Russian election interference activities. Like collusion, ‘coordination’ does not have a settled definition in federal criminal law. We understood coordination to require an agreement — tacit or express — between the Trump Campaign and the Russian government on election interference.”
In short, it’s possible to have colluded in some way — depending upon how you define the nebulous term “collusion” — without there having been an actual agreement or an arrangement that meets the legal definition of conspiracy.
Special counsel Robert S. Mueller III dealt with the legal question, which was his purview and responsibility. Politically speaking, though, even if something like the Trump Tower meeting might not have crossed a legal threshold, it’s possible to still regard it as being problematic.
Myth No. 2: Mueller decided he couldn’t decide on obstruction
One of the many ways in which Attorney General William P. Barr seemed to pre-spin the Mueller report in a positive direction for Trump was on obstruction of justice.
In his initial letter summarizing the report, he said Mueller came to no conclusion on obstruction of justice, neither accusing nor exonerating Trump. But he didn’t elaborate as to why. At his news conference just before the report’s release, Barr was asked whether that was because Mueller was conflicted or because of Justice Department policy, and he talked around it.
Turns out it was the latter, but people are still mischaracterizing Mueller’s obstruction decision.
As Mueller explained, his decision not to accuse or exonerate Trump on obstruction of justice was all about the fact that the Justice Department doesn’t charge sitting presidents with crimes:
The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment, At the same time, if we had confidence after a thorough investigation of the facts that the president clearly did not commit obstruction of justice we would so state.
So no matter how damaging the evidence, Mueller decided it wasn’t his place to accuse the president of crimes; he could only clear him of crimes.
And if you look more closely, there are five different events on which Mueller seems to have found evidence of the three key criteria required for an obstruction charge.
Myth No. 3: Trump fully cooperated
Speaking of areas in which Barr has gone to bat for Trump in a misleading way: He said at his news conference that “the White House fully cooperated with the Special Counsel’s investigation."
Trump added Thursday night in an interview with Fox News’s Sean Hannity: “I was totally transparent. I didn’t tell anybody you can’t go [interview with Mueller]. I could have. I could have said, ‘You are not going to testify. Nobody is going to testify.’ "
The narrative is that Mueller had everything he needed, and he couldn’t provide the goods.
Except Trump did not fully cooperate. The White House did hand over lots and lots of documents and allow people such as White House counsel Donald McGahn to cooperate, yes, but its cooperation fell short in one massive way: Trump wouldn’t testify.
Mueller clearly wanted it, but there was a months-long standoff. Eventually, as Mueller detailed in his report, he basically decided issuing a subpoena would prolong things too much.
Trump gave written answers to some of Mueller’s questions, but an in-person interview would undoubtedly have helped Mueller — especially when it comes to determining Trump’s intent on some of the 10 areas he examined for obstruction.
Myth No. 4: There is no underlying crime
Part of Barr’s rationale for exonerating Trump on obstruction, even though Mueller hadn’t, was that Mueller had cleared Trump of conspiracy.
“In making this determination, we noted that the Special Counsel recognized that ‘the evidence does not establish that the President was involved in an underlying crime related to Russian election interference,’ and that, while not determinative, the absence of such evidence bears upon the President’s intent with respect to obstruction,” Barr wrote in his initial summary.
It’s correct that the lack of an underlying crime can be a mitigating circumstance when it comes to obstruction; if you don’t have something to cover up, after all, it suggests your intent wasn’t so corrupt.
But in this case, there were underlying crimes — lots of them. Trump’s own aides pleaded guilty to lying at various junctures. His campaign chairman, Paul Manafort, was convicted of a series of crimes, as was his lawyer/fixer Michael Cohen. And Trump has even been implicated in crimes — campaign finance violations — in the Cohen case that was related to the Mueller probe.
Trump also rather obviously didn’t like the story line that Russia made the difference in electing him, so he also had a political motive to want to hamper the investigation. When the special counsel was appointed, Mueller reported, Trump said he was “fucked” and that it was the “end of my presidency.”
So the idea that Trump had nothing to hide — including crimes — by obstructing the investigation is pretty far-fetched.
Myth No. 5: Trump has been accused of a crime in the Cohen case
An offshoot of the above is the argument that not only are there underlying crimes, but also that Trump himself has been accused of one. But that’s just not true.
Trump has indeed been named by the Southern District of New York as a participant in Cohen’s campaign finance violations, which relate to the hush-money payments made to Stormy Daniels and Karen McDougal. But being named as part of a scheme isn’t the same as being accused of a crime. Trump has argued that he didn’t direct Cohen to do anything illegal and trusted him not to, even as he tasked Cohen with handling the situations.
As it was with Mueller, it’s not clear whether the SDNY isn’t accusing Trump of a crime because he’s a sitting president or because it hasn’t established that his conduct was criminal. And as with Mueller, it’s possible the SDNY thinks Trump committed a crime but just can’t or won’t say so.
But we simply don’t know at this point, so to say Trump has been accused of a crime is wrong. To say he’s been implicated in one is more accurate.