Mueller specifically didn’t “exonerate” Trump. Trump appointee William Barr made the decision not to charge him.
Special counsel Robert Mueller did not find that President Donald Trump was guilty of obstruction of justice. It didn’t find him innocent, either.
Attorney General William Barr and Deputy Attorney General Rod Rosenstein have concluded that “the evidence is not sufficient” to charge Trump with obstruction of justice. But as a letter written by Barr to the House Judiciary Committee Sunday (summarizing the still-confidential Mueller report submitted to Barr and the Department of Justice on Friday) makes clear, that was Barr and Rosenstein’s decision — not Mueller’s.
In his letter, Barr explains that Mueller decided there was sufficient evidence to “establish” whether Trump and his associates were involved in Russian interference into the 2016 presidential election. But according to Barr, Mueller didn’t draw any conclusions or make any decisions about the second part of his investigation: whether Trump obstructed justice by interfering in the investigation of Russian interference. This could have included firing FBI Director James Comey in May 2017, a decision that Comey said Trump made after asking Comey to “go easy” on Trump’s former national security adviser Michael Flynn.
Instead, Mueller simply laid out the facts of Trump’s actions with regard to the investigation. Barr and Deputy Attorney General Rod Rosenstein used those facts, as well as conversations they’d had with Mueller over the course of the investigation, to draw a conclusion about whether Trump would meet the requirements to be charged with obstruction. Their conclusion, according to Barr, is that the facts they have wouldn’t be enough to charge Trump with obstruction.
Trump is already claiming that Barr’s letter is a “COMPLETE AND TOTAL EXONERATION” proving there was “no obstruction.” But it’s important to understand that Mueller didn’t draw that conclusion; Barr and Rosenstein did.
The obstruction section of Barr’s letter about the Mueller report, annotated
Here are the key passages from Barr’s letter explaining the obstruction-of-justice part of Mueller’s investigation and report:
The report’s second part addresses a number of actions by the President — most of which have been the subject of public reporting — that the Special Counsel investigated as potentially raising obstruction-of-justice concerns. After making a “thorough factual investigation” into these matters, the Special Counsel considered whether to evaluate the conduct under Department standards regarding prosecution and conviction but ultimately determined not to make a traditional prosecutorial judgment.
This means that Mueller looked at the Department of Justice’s guidance to prosecutors about what level of evidence is necessary to indict someone but decided not to actually apply that rubric himself.
The Special Counsel therefore did not draw a conclusion — one way or the other — as to whether the examined conduct constituted obstruction [...] the Special Counsel’s report states that “while this report does not conclude that the President committed a crime, it also does not exonerate him.”
These two lines are almost certainly going to be seized on by Democrats as they call for more of Mueller’s findings to be made public. They’re the sentences that show that Mueller himself didn’t find Trump innocent — and out of context, they imply that Mueller certainly thinks Trump did something wrong. But in the context of Barr’s letter, it just means that Mueller was leaving the decision up to Barr and Rosenstein.
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. Our determination was made without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.
If Barr and Rosenstein had decided the evidence was sufficient, it would have created a huge constitutional issue — because there’s no legal consensus on whether you can charge a sitting president with a federal crime. (Barr has made it clear that he doesn’t think it’s legal to do so.) But by deciding that the evidence wasn’t sufficient anyway, that issue has been avoided.
Of course, because Barr’s views on presidential prosecution are well known — and because Barr was appointed by Trump while the Mueller investigation was ongoing, and resisted Democratic calls to recuse himself from overseeing the investigation — Democrats and other Trump critics are likely to reject Barr’s conclusions as biased at best and corrupt at worst.
In cataloguing the President’s actions, many of which took place in public view, the report identifies no actions that, in our judgment, constitute obstructive conduct, had a nexus to a pending or contemplated proceeding, and were done with corrupt intent, each of which, under the Department’s principles of federal prosecution guiding charging decisions, would need to be proven beyond a reasonable doubt to establish an obstruction-of-justice offense.
The text above is a mess of commas, but what it’s saying is that an obstruction-of-justice charge requires the government to meet a standard of “beyond a reasonable doubt” for three different things:
- There was “obstructive conduct;
- The conduct was related to a prosecution or investigation;
- The conduct was “done with corrupt intent.”
Barr is saying that he and Rosenstein didn’t see any actions described in the report that met that standard for all three elements.
Barr barely explains his reasoning here. Earlier in the letter he points out that Mueller didn’t find evidence establishing Trump himself was involved in an underlying crime regarding Russian interference, then claims that this “bears upon the President’s intent with regard to obstruction” — in other words, that if there wasn’t a crime to hide from the public or prosecutors to begin with, there wouldn’t be any need for Trump to obstruct.
Barr then mentions that many of the actions in question “took place in public view,” but it’s not clear if he emphasizes that just to make clear that Mueller didn’t uncover a ton of secret stuff or if he and Rosenstein decided Trump was less likely to be acting with “corrupt intent” if he was just tweeting it out.
Barr’s conclusions will almost certainly add fuel to the fire with demands for the full Mueller report to be released. But given Barr’s description, the full text of the Mueller report isn’t going to answer the question of whether Trump obstructed justice. That appears to be a judgment call — and one that is, in this case, up to the man Trump appointed to oversee this investigation.
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