From what we know so far, the report is far from a worst-case scenario for Trump, a scenario that was never likely to begin with, but it is also far from the best and lays the groundwork for more trouble for Trump
AMMAN — After a nearly-two-year investigation that has been the focus of Washington like nothing since the Watergate scandal, the long-awaited report of Special Counsel Robert Mueller has arrived (at least at the desk of Trump’s newly confirmed Attorney General, William Barr). Two days after its submission by Mueller to him, Barr has presented a summary of his own crafting to key congressional leaders that has been made public.
What’s Missing Is Just As Important As What’s Included
There will be (even already are) attempts to spin, distort, and flat-out misrepresent the summary and, eventually, whatever else of “the report” is made public.
In Deputy (and then Acting) Attorney General Rod Rosenstein’s May 17, 2017, letter creating Mueller’s Special Counsel probe, the main lines of investigation that Rosenstein authorized Mueller to pursue were “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” Yet in both his Friday letter confirming receipt of Mueller’s report and in his Sunday summary of Mueller’s report sent to senior relevant congressional leaders, Barr noted the scope of Mueller’s report to be focused on “Russian interference” in the 2016 election, noting in the latter that the title of Mueller’s submission was “Report on the Investigation into Russian Interference in the 2016 Presidential Election.” Specifically, Barr’s letter quotes the Special Counsel’s report that its “investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.”
What has been little noted, however, is how wide of a gap there is between how Muller chose to frame his final report and the and how Rosenstein initially framed the scope: if we limit discussion to Team Trump’s having “conspired or coordinated with the Russian government” this can leave out 1.) less formal intermediary channels that are a hallmark of Kremlin operations (e.g., see Konstantin Kilimnick and Oleg Deripaska) and 2.) any other issues—sanctions, Ukraine, NATO, the EU, political strategy, etc.—that did not specifically involve election interference.
This is a pretty big deal. And it needs to sink in.
Read Carefully: Mueller As a Beginning, Not an End
Again, Barr’s summary of Mueller’s report hardly concludes that there was no collusion between the Trump campaign and the Kremlin, just that no one “conspired or knowingly coordinated” with Russia to the end of election interference, and Barr noted that Mueller’s team even explicitly noted that, when it came to obstruction of justice, “while this report does not conclude that the President committed a crime, it also does not exonerate him.”
Some important things to note here: as has been oft-repeated, Mueller’s only main public obligation as far as issuing reports is limited to whether or not it recommends criminal charges against the president or senior officials beyond those people it has already charged. The burden of proof for these charges would have to be backed by evidence supporting conclusions of provable criminal guilt beyond a reasonable doubt, and when it comes to conspiring with foreign powers to interfere with U.S. elections, Barr’s letter notes that if any American “joined the Russian conspiracies to influence the election,” such actions “would be a federal crime.” But when it comes to collusion on other issues—sanctions, Ukraine, NATO, etc.—in and of themselves, such actions would at best most likely be a crime under the Logan Act, an obscure 1799 U.S. law that prohibits those not delegated by the U.S. government to run foreign policy to engage in making foreign policy; only one charge from 1803 ever materialized under the Act, and that charge was never brought to trial. In other words, trying to establish criminal wrongdoing with evidence that leaves no reasonable doubt by going down this path is a far shakier, more challenging task. And it seems a path that Mueller, at least as far as his report recommending criminal charges or not recommending them, has decided to avoid traveling, which is not the same thing as finding those questions not worth asking.
This actually seems to be sound strategy on the part of Mueller: going down that path in terms of criminal prosecution would be going down lengthy rabbit holes in which the likelihood of finding actionable evidence that could convict U.S. persons under U.S. law was likely going to be minimal and the investigation would have gone beyond two years into three or more, creating even more buildup for what would probably be a similarly inconclusive payoff. And as things stand now, Mueller has clearly farmed out and laid the groundwork for other federal, state-level, and international law enforcement to take up the banner on a whole host of issues related to Trump and/or Russia.
But the point is that Mueller seems to have decided to limit the scope of his massive investigation in ways that make it impossible for anyone to claim that his report proves there was no active collusion. And by conspicuously limiting the scope in this way, he is all but handing the baton to others rather seeing his investigation as the end to all relevant lines of inquiry. Mueller, unlike former FBI Director Comey, seems to understand the sensitive political environment in which he operates: for a single powerful investigation to take down a legally elected president is no small matter and partisanship has only increased exponentially since the Nixon era. With this approach, Mueller has helped shield the Department of Justice from further politicization and delegitimization and ensured that these serious issues surrounding Trump and Russia will be less about him, Mueller, as one star prosecutor and more about the federal, state/local, and congressional machinery that must also be a part of reigning in both Trump and Putin and holding them accountable. It is doubtful that the Barr summary will be the end of what comes out about Mueller’s report, and that doesn’t even get to the Special Counsel’s counterintelligence investigation, which can still be fertile ground going forward. As former FBI counterintelligence agent Asha Rangappa has repeatedly pointed out, the Special Counsel’s counterintelligence investigation would be far more sweeping than the criminal investigations with which we are far more familiar, but no less important even if much less transparent, as much of the material would be extremely sensitive and since the Special Counsel statue does not call for any public report on its findings like it does with the criminal investigation.
Not the Worst Outcome for Trump, But No Reason to Celebrate
The idea that Mueller was somehow going to find a smoking gun of Trump campaign collusion with the Russian government or remove Trump from office was always the stuff of anti-Trump pipe dreams. That Trump’s people would celebrate this is just another sign of the plummeting of the proverbial bar to unrecognizable depths. Mueller and his people may not have found evidence to the degree of quelling reasonable doubt that Team Trump “conspired or knowingly coordinated” with Russia on election interference in 2016, but any reading of Barr’s report or the Mueller report that claims this means there was no collusion with Russia at all is flat-out wrong. As I have noted before, the idea of collusion is so much broader and deeper than prosecutable criminal offenses and the public conversation about collusion has been ridiculously myopic to not make this a major theme, but perhaps with the Mueller report now having been filed, the opportunity to take the understanding of collusion beyond criminal wrongdoing may never be better.
There are still many questions that need answers, and those questions and answers should give Trump and Putin and their supporters serious pause as America moves beyond Mueller to decide our collective future, not least of that being our role in the world, our relationship with Russia, and how we will protect our own elections, as well as freedom democracy around the world, in the face of a concerted onslaught by Putin’s Kremlin, about which our government agencies and investigators have no reasonable doubt, including the Department of Justice and, as noted in the Barr summary, the Special Counsel.
See related article: Crime Too Narrow As Main Lens to View Putin’s Masterpiece of Collusion
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Brian E. Frydenborg is an American freelance writer, academic, and consultant from the New York City area currently based in Amman, Jordan. You can follow and contact him on Twitter: @bfry1981
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