In his “summary” of the special counsel report, Attorney General William Barr proclaimed that Robert Mueller’s team had cleared Trump of “collusion” and had left it to Barr to determine whether or not Trump had committed obstruction. So Barr quickly made that decision, giving Trump a pass.
But that’s not what the report said. When the public finally got a chance to see most of the actual report, it was clear that Barr’s letter was a huge distortion of the actual findings. Robert Mueller detailed at least 11 occasions where Trump attempted to withhold evidence, pressured witnesses to lie, or simply tried to end the investigation. And when it came to “collusion,” Muller made it clear that there was no such thing, not under the law. Instead, he was trying to meet the very high bar for federal charges of conspiracy—a bar placed even higher because the efforts at obstruction, the use of encryption, witnesses who refused to testify, and the destruction of evidence made it impossible to learn the truth.
But putting the Muller report in context shows two simple conclusions: The Trump campaign did conspire with the Russian government, and Donald Trump did obstruct justice.
As law professor Jed Handelsman Shugerman explains in the New York Times, the Mueller report actually does establish that “members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.” Shugerman notes, “By the preponderance of evidence standard, the report contains ample evidence to establish conspiracy and coordination with the Russian government, sometimes through intermediaries, other times through a Russian spy.”
The evidence contained in the report may not rise to the level that federal prosecutors felt was necessary to support charges against members of the Trump campaign in court. But it’s certainly strong enough to support articles of impeachment. And the case for obstruction is even stronger.
According to Murray Waas at the New York Review of Books, two former prosecutors working for Mueller said directly what was implicit in the report: If it were not for Department of Justice regulations that protect a sitting executive, Donald Trump would currently be under indictment. This information didn’t come from a leak, or from the attorneys speaking as anonymous sources; it came from the attorneys speaking to other law enforcement officials in conversations that happened months before the report came out, but which were confidential at the time,
During the investigation, the Mueller team remained “hermetically sealed,” producing almost nothing that even looked like a leak. There are still at least a dozen cases that were spun off by the special counsel investigation about which the public can only guess as to potential charges and defendants. But in the course of laying out those cases, the Mueller team did have to talk to investigators and prosecutors working for other jurisdictions. And in those conversations, the prosecutors on Mueller’s team made it clear that they did have more than enough evidence to indict Donald Trump for obstruction.
As Shugerman points out, Ken Starr had no problem in leveling an obstruction charge against Bill Clinton, even though Clinton’s actions were not a threat to the integrity of his investigation. One of the reasons for this was that Starr considered himself genuinely independent, while Mueller felt himself to be a part of the DOJ and bound by its guidelines. But the bigger reason is that the Starr report “framed itself as an impeachment referral, not a prosecution decision, and thus avoided having to reach the more daunting standard of proof beyond a reasonable doubt.”
On every count that Starr forwarded, he didn’t seek to have information that was at the level needed to prosecute, but stopped at a lower standard of “substantial and credible information.” Starr didn’t have to worry about indicting Clinton—because he wasn’t aiming at indictment.
And honestly, the same can be said of the Mueller report. While Barr announced the results of the investigation as if they were the results of a criminal proceeding, the report’s frequent references to the powers of Congress make it clear that the report was never meant to be seen as the kind of black-and-white prosecutorial decision that Barr insists that it is. Barr didn’t just twist the results of the investigation; he twisted its purpose.
Mr. Barr had the analysis backward in his summary letter. The failure to prove an underlying crime does not mean there was no obstruction. The obstruction meant that it became impossible to know whether there was a conspiracy beyond a reasonable doubt — and it impeded the Russian investigation.
There is ample evidence on both issues that meets the standard of “substantial and credible information.” And as the DOJ’s own rules make clear, that’s the only standard that counts.