The investigation into Russian interference in the 2016 U.S. presidential election led by Special Counsel Robert Mueller came to an end on Friday, March 22, with a report delivered to Attorney General William Barr. On Sunday, Barr released a 4-page summary of the report, and President Trump claimed “complete and total exoneration.” In this Q&A, Professor David Sklansky, a former federal prosecutor, discusses what we know about the report, what it means, and what may come next.
Does Mueller’s report exonerate the president, as has been reported?
No. With regard to possible obstruction of justice, Barr quotes the Mueller report saying the following: “While this report does not conclude that the President committed a crime, it also does not exonerate him.”
You can’t get more explicit than that. With regard to possible complicity in Russian tampering with the 2016 election, Barr notes that the Mueller report says that “the investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.”
With regard to possible obstruction of justice, Barr quotes the Mueller report saying the following: ‘While this report does not conclude that the president committed a crime, it also does not exonerate him.’ (Image: via pixabay / CC0 1.0)
That’s different from saying that the investigation concluded the opposite — that in fact there was no conspiracy or coordination. And that’s a particularly important distinction given that Mueller and his team were never able to interview the president. Furthermore, Mueller’s report does not address several lines of inquiry that the Special Counsel’s office has handed over to other units within the Department of Justice; some of those may wind up implicating the president.
What does the report indicate about the extent of Russian interference in the 2016 election?
According to Barr’s summary, it doesn’t add much to what Mueller’s office had already indicated in the public charges it filed, and in the guilty pleas it obtained. Mueller’s work has made clear that Russia engaged in extensive and sophisticated efforts to swing the election to Donald Trump, both through an organized campaign of disinformation through social media, and by hacking into computers used by the Democratic Party and the Hillary Clinton campaign, and then releasing stolen emails through WikiLeaks.
Russia engaged in extensive and sophisticated efforts to swing the election to Donald Trump, both through an organized campaign of disinformation through social media, and by hacking into computers used by the Democratic Party and the Hillary Clinton campaign, and then releasing stolen emails through WikiLeaks. (Image: via pixabay / CC0 1.0)
The charges filed by Mueller’s office, and the guilty pleas his office obtained, also made clear that the Trump campaign welcomed that assistance, and that campaign officials later lied to investigators about the nature and extent of their contacts with Russian agents and representatives. But Mueller didn’t charge former Trump campaign officials with conspiring with Russians to violate U.S. laws, and, according to Barr, the Mueller report doesn’t recommend any further indictments, and there are no sealed indictments from Mueller’s team that have to be made public.
Barr reported on Friday that the Department of Justice had not blocked any investigative steps that Mueller’s office wanted to take. What is the significance of that disclosure?
By statute, Mueller was required to inform the Attorney General of major events in his investigation, and the Attorney General could direct Mueller’s office not to take any steps the Attorney General determined were inappropriate or unwarranted under the Department’s rules and practices.
Until Barr took over as Attorney General, Deputy Attorney General Rod Rosenstein was exercising these responsibilities, because the previous Attorney General, Jeff Sessions, recused himself from overseeing Mueller’s investigation. We know now that neither Rosenstein nor Barr ever overruled Mueller regarding any step Mueller proposed to take. That’s a strong sign of something we had lots of other reasons to believe — that Mueller was running a professional investigation.
The memo that Barr released on Sunday said that Mueller’s report didn’t reach a legal conclusion about whether the President had obstructed justice. But Barr said that he has concluded that there’s no evidence the President obstructed justice, after conferring with Deputy Attorney General Rod Rosenstein and other lawyers in the Department of Justice. Why didn’t Mueller reach a conclusion about this, and how was Barr able to conclude that the President didn’t obstruct justice?
According to Barr’s memo, Mueller’s team said there were “difficult issues” regarding whether the President’s acts and statements constituted obstruction of justice. Mueller’s report apparently laid out the evidence on both sides of the question, but didn’t reach a legal conclusion. Without reading the report, it’s hard to know exactly why Mueller decided to take that approach.
Barr says that he and Rosenstein have concluded that the President’s actions, combined with his apparent intent, don’t rise to the level of criminal obstruction. Barr didn’t say whether career lawyers at DOJ agreed with that conclusion. And he didn’t explain his reasoning, other than to say that he and Rosenstein found it significant, although not dispositive, that Mueller hadn’t uncovered evidence that Trump was involved in the underlying crimes of election interference carried out by the Russians.
That’s a highly unsatisfactory explanation. It’s black letter law that obstruction of justice doesn’t require involvement in the underlying offense — or even that there be an actual underlying offense. If the President tried to block the investigation into Russian interference in the election because he wanted to protect the Russians, or because he didn’t want people to know that a foreign government had tried to hack the election in his favor, most prosecutors and most criminal law scholars would say that constituted obstruction.
It’s not clear that Barr should have participated in this decision at all. While in private practice, before Trump named him as Attorney General, Barr sent a long, unsolicited memo to the White House and the Department of Justice, arguing that the matters Mueller was investigating wouldn’t constitute obstruction even if proven.
Before Trump named him as Attorney General, Barr sent a long, unsolicited memo to the White House and the Department of Justice arguing that the matters Mueller was investigating wouldn’t constitute obstruction even if proven. (Image: via pixabay / CC0 1.0)
It was an odd and unconventional memo, and it was widely criticized as poorly reasoned. That was certainly my reaction. But setting aside the merits of Barr’s position, once he committed himself to it — and quite possibly was appointed Attorney General because of it — reasonable questions can be raised about his ability to be impartial and open-minded in addressing the question.
Trump appointed Barr to the post of Attorney General after Barr went out of his way to tell the White House and the Department of Justice that he thought that what Trump was alleged to have done didn’t constitute a crime, even though lots of prosecutors and criminal law scholars — probably most prosecutors and most criminal law scholars — understood the law differently. Given that background, there’s a good argument that Barr should have recused himself.
Why hasn’t the entire report been made public? Will Congress see it?
By statute, it is up to Attorney General Barr whether to share the report with Congress, and whether to make it public. The memo he released on Sunday indicated that he wants to be as transparent as possible, but that he needs additional time to decide what parts of the report should be withheld because they are protected by grand jury secrecy rules, because their disclosure could compromise ongoing investigations, or because disclosure wouldn’t be consistent with how the Department of Justice normally handles information about lines of inquiry that haven’t resulted in criminal charges.
But if Barr chooses to withhold significant portions of the report, Congress could — and almost certainly will — subpoena it, and the issue could wind up in court. And once Congress gets hold of the report — which seems likely to happen, one way or the other — it won’t be entirely up to the Department of Justice whether the report is released to the public, because Congress could release it.
There are separate investigations into the 2016 election in both the Senate and House. Would they already have the information in Mueller’s report? Or are there hard lines between each investigation? And do you expect them to call Mueller and Barr to testify?
The congressional investigations have been run separately, without the benefit of the grand juries that Mueller has been able to use. So it’s likely that Mueller uncovered a good deal of information that members of Congress don’t yet have. And yes, I expect both Mueller and Barr will be asked to testify, along with Deputy Attorney General Rod Rosenstein.
Does it matter to the Senate and House investigations that the Mueller team apparently is not recommending further charges?
Not much. It certainly doesn’t mean there is nothing for Congress to investigate. If anything, it means that it will be a little easier for congressional investigators to do their work, because they won’t have to worry about interfering with Mueller’s investigation, or vice versa.
Could there be further legal action related to the Mueller investigation by another part of the DOJ?
Absolutely. Even before winding down his investigation, Mueller spun off part of it to other offices within the Department of Justice — notably the U.S. Attorney’s Office in Manhattan, which has handled the campaign finance investigation that resulted in the guilty plea by the President’s former lawyer, Michael Cohen. That investigation is ongoing, with Cohen’s cooperation. Federal prosecutors in Manhattan and elsewhere in the country are also investigating the activities of the presidential inauguration committee.
That inquiry, too, is an offshoot of Mueller’s investigation: Last August, a Republican lobbyist named Sam Patten pled guilty to facilitating and covering up an illegal donation to Trump’s inauguration committee from a Ukrainian oligarch. Trump’s confidante Roger Stone is currently awaiting trial on charges that he lied to Congress about his communications with Wikileaks in the run-up to the 2016 election; that case will likely be taken over by the U.S. Attorney’s office in D.C., which worked with Mueller’s office on Stone’s indictment.
Trump’s confidante Roger Stone is currently awaiting trial on charges that he lied to Congress about his communications with Wikileaks in the run-up to the 2016 election. (Image: via pixabay / CC0 1.0)
And Trump’s former deputy campaign manager, Rick Gates, who entered into a plea agreement with Mueller’s office, appears to be cooperating in multiple ongoing investigations that Mueller handed off to other offices within the Department of Justice. So much of what Mueller started will continue even after he closes up shop.
David Alan Sklansky is the Stanley Morrison Professor of Law and Faculty Co-Directory of the Stanford Criminal Justice Center. He is the author of Democracy and the Police (Stanford University Press 2008), and he writes regularly about criminal procedure and law enforcement.
Provided by: David Alan Sklansky Q&A with Sharon Driscoll, Stanford University, Stanford, California [Note: Materials may be edited for content and length.]
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