Yawning Gaps: An Insufficient Letter, An Incomplete Report

On Sunday, after reviewing Mr. Mueller’s long-awaited report on his investigation into potential collusion between the Donald Trump or his associates and Russia and into potential obstruction of justice by the President, Attorney General Barr sent a letter to Congress summarizing Mr. Mueller’s conclusions. What was surprising was not that Mr. Barr wrote a summary. What was surprising was that in that summary, he came to a prosecutorial conclusion of his own. 

Mr. Barr states in his letter that “Special Counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in these efforts [to interfere with the 2016 elections]”. On the question of obstruction of justice, however, Mr. Barr writes that “The Special Counsel therefore did not draw a conclusion - one way or the other – as to whether the examined conduct constituted obstruction.” He goes on to quote Mr. Mueller as saying that “‘while this report does not conclude that the President committed a crime, it also does not exonerate him’”. The last statement is particularly intriguing – Mr. Mueller doesn’t reach a conclusion, but he wants to make it clear that this doesn’t mean there wasn’t any obstruction. Which is why Attorney General Barr’s next paragraph is shocking: he states that Mr. Mueller’s lack of a conclusion on obstruction put the decision in the hands of the Attorney General, and that “After reviewing the Special Counsel's final report on these issues; consulting with Department officials, including the Office of Legal Counsel; and applying the principles of federal prosecution that guide our charging decisions, Deputy Attorney General Rod Rosenstein and I have concluded that the evidence developed during the Special Counsel's investigation is not sufficient to establish that the President committed an obstruction-of-justice offense” [1]. 

At first glance, this seems reasonable – the report is inconclusive, so there was insufficient evidence of obstruction. The problem is that this is an unsupported logical leap. We do not actually know why Mr. Mueller’s report is inconclusive. Mr. Barr offers several clues in his letter: he writes that Mr. Mueller “ultimately determined not to make a traditional prosecutorial judgment”, not to “evaluate the conduct under Department standards governing prosecution and declination decisions”. Mr. Mueller was acting as a prosecutor, so why did he refrain from making a prosecutorial judgement? A reason might be what Mr. Barr describes as “‘difficult issues’ of law and fact” left unresolved in the report. The Attorney General does not say what these issues are, nor does he say how or even whether he resolved them, which makes his quick conclusion all the more concerning. But they might be related to the standard of proof required for a criminal conviction, and to the legal definition of obstruction of justice. As Mr. Barr describes in his letter, all portions of obstruction must be proven beyond a reasonable doubt. One of the hardest portions to prove is “corrupt intent” – in other words, that the defendant wanted to interfere with federal judicial proceedings [2]. It is possible that Mr. Mueller did not have enough evidence of such an intent – particularly without an in-person interview with Trump – or that he had qualms with some portion of the law. In his New York Times piece about “The Many Problems With The Barr Letter,” Neal Katyal, who drafted the Special Counsel regulations, points out the lack of an interview with Trump, and speculates that Mr. Mueller may have thought such an interview should be conducted by Congress or by the Attorney General. But “What kind of prosecutor,” Mr. Katyal writes of Mr. Barr, “would make a decision about someone’s intent without even trying to talk to him?” [3]. 

Mr. Mueller told the Attorney General three weeks in advance that he would not reach a conclusion on the question of obstruction [4]. In those three weeks, Mr. Barr did not interview the President. He did not conduct any investigation of additional evidence. And we do not know how much of the evidence from Mr. Mueller’s investigation into obstruction of justice he knew about in that time. So, the most important question raised by this situation is how one prosecutor can reach a judgement on the same basis on which another specifically decided not to make a prosecutorial decision. Mr. Barr mentions that Mr. Mueller communicated with “Department officials” the facts and law at issue in his investigation. The Attorney General again does not say what those issues were. But whatever they were, why were they not resolved? And if they could not be resolved – if there was simply insufficient evidence, for example, as Mr. Barr concluded – then why didn’t Mr. Mueller file a declination? 

There is an important gap in the narrative of the Attorney General’s letter: it fails to explain the discrepancy between two nearly simultaneous decisions based on the same facts. We will not know what evidence Mr. Mueller and Mr. Barr both considered in their different conclusions, we will not know what “difficult issues” Mr. Mueller saw, and we will not know how Mr. Barr resolved them in coming to his conclusion, until the Mueller report is released, and until Mr. Barr (and, preferably, Mr. Mueller) testifies in front of Congress. 

In the meantime, it is important to consider a possible implication of Mr. Mueller’s deliberate decision not to evaluate Trump’s conduct by Department standards. He may have wanted to keep the door open for their evaluation in another context: impeachment. There has long been a debate about the standard of proof during an impeachment process, as well as about the nature of impeachable offenses. But arguments at Constitutional ratification assemblies, as well as the opinions of Adams and of Mason, tended toward the inclusion of acts “beneath the cognizance of the law,” as well as misconduct and “misadministration” [5] [6]. And there is certainly no question about the practical standard of proof in this markedly political process: it is not ‘beyond a reasonable doubt’ – it is by a majority in the House, and by 2/3 in the Senate. Mr. Mueller’s pointed evasion of a decision based on traditional standards may be a signal (whether intended or not) that the standards of an impeachment process could yield a different result.

The Mueller investigation is over. The question remains what to do with it. Now is not the time to try to ‘move on,’ nor to emphasize solely the politics surrounding it, as some have begun to do. Now is the time for the American public, the Department of Justice and Congress to review the evidence uncovered by the inquiry, to determine whether that evidence was properly evaluated under judicial standards by Attorney General Barr’s opaque conclusion, and to consider whether that evidence may be otherwise evaluated under the standards of the alternative legal process established in our Constitution.

[1] The New York Times. "Read Attorney General William Barr's Summary of the Mueller Report." The New York Times. March 24, 2019. https://www.nytimes.com/interactive/2019/03/24/us/politics/barr-letter-mueller-report.html.

[2] "Obstruction of Justice." FindLaw. Accessed March 26, 2019. https://criminal.findlaw.com/criminal-charges/obstruction-of-justice.html.

[3] Katyal, Neal K. "The Many Problems With the Barr Letter." The New York Times. March 24, 2019. Accessed March 26, 2019. https://www.nytimes.com/2019/03/24/opinion/barr-mueller-report.html?action=click&module=Opinion&pgtype=Homepage.

[4] Jarrett, Laura. "Mueller Told Justice Three Weeks Ago He Couldn't Reach a Conclusion on Obstruction." CNN. March 25, 2019. Accessed March 26, 2019. https://www.cnn.com/2019/03/25/politics/mueller-obstruction-conclusion/index.html.

[5] "IMPEACHMENT." Legal Information Institute. Accessed March 26, 2019. https://www.law.cornell.edu/constitution-conan/article-2/section-4/impeachment.

[6] Ellis, C. M. "The Causes for Which a President Can Be Impeached." The Atlantic. December 14, 2017. Accessed March 26, 2019. https://www.theatlantic.com/magazine/archive/1867/01/the-causes-for-which-a-president-can-be-impeached/548144/.