BY BARBARA MCQUADE AND JOYCE WHITE VANCE [JUNE 24, 2019]
When we joined other legal experts earlier this month to testify before the House Judiciary Committee regarding lessons from special counsel Robert Mueller’s investigation, it became apparent from the questioning that a number of misconceptions continue to exist regarding Mueller’s findings. The narrative was shaped by Attorney General William Barr, who issued his description of Mueller’s conclusions three weeks before the public saw the full 448-page report. In a letter to Barr, Mueller complained that Barr’s summary “did not fully capture the context, nature and substance” of his team’s work and conclusions, and created “public confusion.” Here is our effort to dispel some of those myths.
Myth: Mueller found “no collusion.”
Response: Mueller spent almost 200 pages describing “numerous links between the Russian government and the Trump Campaign.” He found that “a Russian entity carried out a social media campaign that favored presidential candidate Donald J. Trump and disparaged presidential candidate Hillary Clinton.” He also found that “a Russian intelligence service conducted computer-intrusion operations” against the Clinton campaign and then released stolen documents.
While Mueller was unable to establish a conspiracy between members of the Trump campaign and the Russians involved in this activity, he made it clear that “[a] statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.” In fact, Mueller also wrote that the “investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts.”
To find conspiracy, a prosecutor must establish beyond a reasonable doubt the elements of the crime: an agreement between at least two people, to commit a criminal offense and an overt act in furtherance of that agreement. One of the underlying criminal offenses that Mueller reviewed for conspiracy was campaign-finance violations. Mueller found that Trump campaign members Donald Trump Jr., Paul Manafort and Jared Kushner met with Russian nationals in Trump Tower in New York June 2016 for the purpose of receiving disparaging information about Clinton as part of “Russia and its government’s support for Mr. Trump,” according to an email message arranging the meeting. This meeting did not amount to a criminal offense, in part, because Mueller was unable to establish “willfulness,” that is, that the participants knew that their conduct was illegal. Mueller was also unable to conclude that the information was a “thing of value” that exceeded $25,000, the requirement for campaign finance to be a felony, as opposed to a civil violation of law. But the fact that the conduct did not technically amount to conspiracy does not mean that it was acceptable. Trump campaign members welcomed foreign influence into our election and then compromised themselves with the Russian government by covering it up.
Mueller found other contacts with Russia, such as the sharing of polling data about Midwestern states where Trump later won upset victories, conversations with the Russian ambassador to influence Russia’s response to sanctions imposed by the U.S. government in response to election interference, and communications with Wikileaks after it had received emails stolen by Russia. While none of these acts amounted to the crime of conspiracy, all could be described as “collusion.”
Myth: Mueller found no obstruction.
Response: Mueller found at least four acts by Trump in which all elements of the obstruction statute were satisfied – attempting to fire Mueller, directing White House counsel Don McGahn to lie and create a false document about efforts to fire Mueller, attempting to limit the investigation to future elections and attempting to prevent Manafort from cooperating with the government. As Mueller stated, “while this report does not conclude that the President committed a crime, it also does not exonerate him.” Mueller declined to make a “traditional prosecution decision” about obstruction of justice. Because he was bound by the Department of Justice policy that a sitting president cannot be charged with a crime, he did not even attempt to reach a legal conclusion about the facts. Instead, he undertook to “preserve the evidence when memories were fresh and documentary materials were available,” because a president can be charged after he leaves office. In fact, out of an abundance of fairness, Mueller thought that it would be improper to even accuse Trump of committing a crime so as not to “preempt constitutional processes for addressing presidential misconduct,” meaning impeachment.