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Byron York: Five arguments the Mueller report won't settle
by Byron York, April 14, 2019 09:23 PM
Attorney General William Barr has promised to release a redacted version of the Mueller report this week. It will of course consume the political conversation for days, but even now it is clear that, as much as the report might be talked about, it will not settle the main arguments that have raged about the Trump-Russia affair for more than two years. Here are five debates that won't be resolved, no matter how much of the report Barr makes public:
1. Collusion. On the face of it, Barr's summary of Mueller's conclusion could not be clearer: The evidence gathered by the special prosecutor does not show that the Trump campaign conspired or coordinated with Russia to fix the 2016 election. Barr included two brief quotes from the Mueller report on collusion: "The investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities" and "the evidence does not establish that the president was involved in an underlying crime related to Russian election interference." So on the question: Will Mueller show that collusion occurred? The answer seems a pretty straightforward no.
But that is not the end of it. Immediately upon the release of the Barr summary, some of the president's accusers began moving the goalposts. What Mueller really said was that the evidence did not establish beyond a reasonable doubt that there was no conspiracy or coordination. Maybe there will be evidence that shows collusion but does not meet that high legal standard. Or maybe Mueller said that the evidence did not establish that criminal collusion had taken place. Maybe there's some other sort of collusion that Mueller did find. And Mueller did not say, at least in the snippet of his report quoted by Barr, that there was no evidence whatsoever of conspiracy or coordination. So, maybe there is some evidence that shows some sort of collusion by some sort of standard that Trump's critics might adopt.
2. Obstruction. This is a guarantee: Some readers of the Mueller report will swear that it proves the president obstructed justice, while others will swear it proves he did not obstruct justice. Mueller himself has made sure that will happen by not making what Barr called a "traditional prosecutorial judgment" on the obstruction question. Why Mueller did that is not clear; perhaps it will be revealed when the report is released. Barr said Mueller "views as 'difficult issues' of law and fact concerning whether the president's actions and intent could be viewed as obstruction."
Then Barr included this from Mueller on obstruction: "while this report does not conclude that the president committed a crime, it also does not exonerate him." That alone will be enough for Trump's adversaries to conclude that he obstructed justice: Look! Mueller specifically declined to exonerate Trump! On the other hand, less partisan types remain baffled by what Mueller meant. Not exonerate him? What prosecutor does that? When a prosecutor investigates someone for two years and in the end decides not to charge him with any crime, does the prosecutor then write an exoneration letter? That's not the way things usually work. On the other hand, Trump defenders will surely say that Mueller a) investigated Trump, and b) did not accuse him of any crime. That's as much of an exoneration as one gets in these investigations.
3. Impeachment. Some Democrats had hoped that the Mueller report would give them cover for impeaching the president. I was undecided, they might say, and then I saw the special counsel's overwhelming evidence against the president, and I knew it was my duty to impeach. Some of those Democrats also hoped that the Mueller report would serve as a road map to impeachment, in effect doing for Congress the work of discovering and organizing evidence against the president.
But it appears Mueller won't make it easy for Democrats. Of course, they can impeach the president for any reason they choose, if they have the votes in the House. But it seems unlikely the Mueller report will make impeachment an unavoidable conclusion for Democrats. In the end, it's more likely the Democrats who want to impeach Trump will want to impeach Trump after Mueller's report, and the Democrats who oppose impeachment will continue to oppose it.
4. Investigating the investigation. Many Republicans, long convinced that the Trump campaign did not conspire or coordinate with Russia, have instead sought to uncover the events surrounding the decision by U.S. law enforcement and intelligence agencies to investigate the Trump campaign in 2016. It's been hard finding out what happened. Rep. Devin Nunes, when he was chairman of the House Intelligence Committee, shook loose a lot of information, but much remains unknown to the public. Now, those Republicans are counting on an investigation by Justice Department inspector general Michael Horowitz to reveal more. And they are hoping that President Trump will declassify documents that could shed new light on the matter. One place they are not looking for answers is the Mueller report.
5. Why a special counsel? Some Republicans question whether there was really a need for a special counsel to investigate Trump-Russia. First, they cite the fact that there was no underlying crime. There was no crime specified in Mueller's original scope memo, and Mueller could never establish that the Trump campaign conspired or coordinated with Russia. Second, they point to the circumstances of Mueller's appointment, when fired FBI director James Comey leaked confidential documents in order to set off an uproar that he hoped would result in the appointment of a special counsel. As it turned out, things went according to Comey's plan. But was a special counsel really necessary to investigate the crime that did not occur? Like so many others, don't look for that argument to be resolved by the Mueller report.