Next, Barr reported that the special counsel concluded that Russia attempted to interfere with the 2016 presidential election. That interference involved disinformation campaigns, efforts to sow “social discord” online, and hacking the Clinton campaign and the Democratic Party and distributing misappropriated emails through Wikileaks. But crucially, Mueller reported that his investigation “did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities,” whether expressly or tacitly. To use the popular cable-news vernacular, Mueller did not establish “collusion.” (Never mind that “collusion” is not a legal term, and that the special counsel’s mission was to investigate “links and/or coordination” with the Russians.)
Trump’s triumphant supporters notwithstanding, we don’t yet know what that means. When a prosecutor says that an investigation “did not establish” something, that doesn’t mean they concluded it didn’t happen, or even that they don’t believe it happened. It means the investigation didn’t produce enough information to prove that it happened. Without seeing Mueller’s full report, we don’t know whether this was a firm conclusion about lack of coordination or a frank admission of insufficient evidence. The difference is meaningful, both as a matter of history and because it may determine how much further Democrats in Congress are willing to push committee investigations of the matter.
The other big reveal in Barr’s letter is that Mueller “determined not to make a traditional prosecutorial judgment” about whether the President has obstructed justice in the course of the two-year investigation of Russian interference in the election. Instead, Mueller laid out the relevant evidence “on both sides” of the issue but did not resolve what the special counsel saw as the “difficult issues” of fact and law concerning “whether the President’s actions and intent could be viewed as obstruction.” Mueller’s report “does not conclude that the President committed a crime, it does not exonerate him.” Mueller punted.
Ken Starr: Mueller cannot seek an indictment. And he must remain silent.
Why would Mueller spend so much time investigating obstruction of justice but not reach a conclusion? We won’t know until we read his report. But Robert Mueller, a career G-Man, is fundamentally legally conservative. That means he has a narrow view of his own role and a healthy respect for the authority of the other branches of government. He may believe that the evaluation is so inherently political that no conclusion he could offer would ever be seen as legitimate, and the matter is better resolved through Congress’s constitutional authority to impeach (or not) the president. Even if Mueller didn’t make an explicit recommendation, we’ll probably be able to infer his conclusions by reviewing how he marshalled the evidence for and against guilt. Prosecutors, as a rule, are not good at neutral renditions of facts.