Mueller report will still trigger an epic fight in Congress
A quick update from the world of Fake News. The Mueller Report is finally in and it totally exonerates the President on every charge!
If, however, you prefer your news to be factual and with proper nuance, the actual headline this morning is that nothing much has changed since Friday afternoon when we learned that Special Counsel Robert Mueller had submitted his final report to the Department of Justice. We still have very little idea what the report says and don’t even know its length. What we do have – and what made Donald Trump so animated yesterday – is a letter from Attorney General, William Barr, which, to put it mildly, is very carefully worded.
Barr’s letter informed Congress that Robert Mueller has cleared the President on the matter of collusion with Russia but that the Special Counsel could neither prove nor disprove the case of obstruction of justice.
In perhaps the line from the report that history will remember, Mueller writes “while this report does not conclude that the president committed a crime, it also does not exonerate him.”
If that interpretation of the letter doesn’t sound too different to the “fake” reading above, then remember that much of this is about nuances of language. Not being able to prove guilt might be different to not being guilty but it can certainly be spun as such, especially as we slip from the domain of law and into that of politics. That’s why Barr’s letter is so important. It is different to The Mueller Report. It is a letter written by a Trump appointee who had previously expressed his opinion (in an unsought memorandum he sent to the Department of Justice) that it’s almost impossible for a sitting president to be found guilty of obstruction of justice.
Make no mistake: William Barr is now Attorney General precisely so he could do what he did yesterday which is to step into the process and render that judgement. That he did so is deeply contentious. From what little we know, it would appear that Robert Mueller reached no conclusion on obstruction and perhaps intended for the matter to be taken up, as it would normally would, by Congress. The moment Barr made his judgement, this stopped being about the findings of the Special Counsel but an Attorney General who, arguably, is playing politics around the law.
The letter, then, is deeply problematic; a fact which we’ll no doubt see emerge in the coming days. It’s also telling that the Special Counsel was not involved in drafting Barr’s letter and although the Attorney General worked with Deputy AG Rod Rosenstein, the letter is signed by Barr alone. The deeper significance of this took a little time to emerge. As was evident on the US news networks last night, the consensus of what the letter means has already shifted. In the course of a couple of hours, the reading of the letter went from treating it as though it was the Report itself (again, we know almost nothing about the Report) and proclaiming the President innocent, to acknowledging the political nature of Barr’s involvement while lawyers grappled with the ambiguities of his cleverly-worded letter.
If all of that sounds suitably complex, take solace in knowing that none of this should be a surprise. The first feedback on the Mueller Report was always going to come through the DoJ. With Trump’s people in there, it was always the best chance that Trump and his team would have to set the narrative and allow Republicans to grab the headlines by proclaiming a premature victory. Democrats, meanwhile, are left with the less headline-grabbing duty of demanding full access to the Mueller Report. These are exactly the kind of tribal fights we’ve seen for at least the past two years.
Whatever the actual conclusions of the Mueller Report – and, one last time, it’s worth stressing that we’ve still not seen it – this was always going to be played out in Congress.
Mueller was operating a federal investigation and it’s in the federal government that Trump holds all the cards. Not only do his people control the mechanisms by which information about the investigation will be released to the public, but he also has the power to pardon people committing federal crimes. Arguably, he is also immune from federal prosecution given that the path to charging the President is impeachment. So long as the Republicans hold the Senate it really doesn’t matter what conclusions the House reach.
That’s why the events of the weekend, though fascinating, are really what they were always going to be. Even if there was/is a magic bullet in the report, Trump would remain president. He remains safe from impeachment, as perhaps even Robert Mueller and his team of investigators recognised. As we saw, especially in the case of Trump’s lawyer/fixer Michael Cohen, a critical element of Mueller’s methodology has been the way he has passed to state prosecutors the details of any crimes he uncovered that were tangential to Russian interference. That’s why Trump’s real legal peril has increasingly appeared to come from the offices of attorney generals working at the state level, especially the much talked about Southern District of New York.
Lastly, Trump’s boast of “total exoneration” should be understood in the context of what, arguably, might be his best day. Trump will look no more innocent that he did on Sunday. Certainly, it looks more likely that Trump will only be removed from office through a public ballot but, between now and then, expect to see a fight over the contents of the Mueller report. Trump and his family will claim they want transparency but don’t be surprised to see intransigence around the DoJ headed by Barr. While his problematic letter makes it more likely that the Mueller Report will emerge (though slowly, reluctantly) nothing about this is clear or, from Trump’s side, is meant to be clear. On Sunday, William Barr has muddied the waters and that, significantly, is what Trump and his lawyers will have wanted.