Taking a Look at the Redacted Mueller Report

The wait is over! The Mueller Report has finally been released to the public, albeit heavily redacted, and boy is it a whopper. Coming in at 448 pages, the report consists of two volumes, covering Mueller's findings concerning potential obstruction of justice and conspiracy by the Trump administration and Russia during the 2016 presidential election, and the Trump administration's reactions to Mueller's probe. So was there collusion and obstruction of justice? No, but there wasn't not collusion and obstruction of justice. "A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts," writes Mueller in the introduction (Mueller, 2019, Vol. I, p. 2). Confused? I'll explain.

So, Mueller's team was unable to definitively prove-underneath the high evidentiary and intent bars set by federal obstruction of justice and conspiracy statutes-that individuals associated with the Trump campaign and Russia consciously conspired together to sway the 2016 presidential election in Trump's favor. Why?

For one, there are differing points of view over what investigatory actions can and cannot be taken in the course of an investigation while the President holds office and, as a result, is protected from certain legal liabilities. The Office of Legal Counsel (OLC) at the White House asserts that investigations like Mueller's can only investigate and prosecute a narrow set of obstructive acts such as evidence and witness tampering and perjury. To prosecute any broader than those acts infringes on the President's powers to "supervise prosecutorial conduct or to remove inferior law-enforcement officers" like the FBI director or Special Counsel in the course of the President's job to see that laws are "faithfully executed" (Mueller, 2019, Vol. II, p. 170, 180). Basically, Congress can only look at the crimes that don't fall under the powers and actions allowed the President in the Constitution. On the other side arguing for a broader interpretation of federal laws is Mueller's team, saying, look, Congress has the power to protect its oversight operations (like the Special Counsel's inquiry) "against corrupt acts from any source" (hence the legislating and enactment of federal criminal law statutes and grand jury protections) and that there are more ways aside from evidence tampering for obstruction to take place (Mueller, 2019, Vol. II, p. 176). Ways that may entangle messily with executive powers and that aren't easily prosecuted while a President holds office.

Secondly, Mueller admits in the report that he is unable to say with certainty whether or not the President and his inner circle committed any crimes because some sensitive communications are protected by executive privilege. There is also the issue that the President refused to submit to a personal interview, instead submitting written responses to Mueller's questions that read like the written equivalent of Jeff Sessions's "I don't recall" Senate testimony in June 2017. Therefore, Mueller could not satisfactorily clear up any doubts whether the evidence showed without a doubt the actions taken meet all the criteria set by obstruction of justice statutes, namely, those of the "obstructive act, nexus to a proceeding, and intent" (Mueller, 2019, Vol. II, p. 15). In other words, you have to prove that a specific action, like bribery, was taken with the knowledge of an upcoming judicial proceeding or investigation, and was not taken in the public interest (i.e. taken in a personal interest).

Therefore, Mueller's strongest case for the potential bringing of charges seem to be Trump's actions to discourage Paul Manafort and Michael Cohen from testifying against him, his attempts to have the investigation restricted to future election meddling, repeated attempts to get former Attorney General Jeff Sessions to "unrecuse" himself and take control of the Special Counsel investigation, and the President's two attempts to fire the Special Counsel himself (Mueller, 2019, Vol. II, p. 5).

While Mueller could've subpoenaed the President to try and get the evidence he needed to make a definitive charging call, he didn't bother, finding the President's written submissions to be "inadequate," but not wanting to delay the investigation further by going to court over the subpoena (Blake, 2019; Mueller, 2019, App. C, p. 2). Besides, Mueller reasoned that the investigation had enough viable evidence from other sources to be confident about the established facts without wading into the legal morass.

So where do we go from here? It seems that Mueller is telling Congress that his investigative scope was limited, along with resources and time, and further tied up by the thorny legal questions surrounding executive criminal liability, and that it is up to Congress to continue investigating. (In fact, ongoing cases involving Russians and former Trump team members have been handed off to law enforcement agencies like the FBI, who in turn have partnered with state Attorneys General and other prosecutors.) If Congress finds amidst the evidence conduct that amounts to conspiracy or obstruction, it can then check executive abuse of powers by initiating impeachment proceedings to remove the President from office. Moreover, Mueller points out that the President's protections against certain legal liabilities go away when not holding office and responsible for enforcing the nation's laws. 

Whatever happens next, whether or not Mueller chooses to testify in front of Congress about his findings or House Democrats start impeachment proceedings, what is clear is that the ball is in Congress's court now.

Works Cited:

Blake, Aaron. (2019, April 23). The 5 Crimes Mueller Suggests Trump Could Be Charged With. Retrieved May 2, 2019, from https://www.washingtonpost.com/politics/2019/04/23/crimes-mueller-suggests-trump-could-be-charged-with/?utm_term=.aff9aa072005.

Mueller, Robert. S. III. (2019). Report On The Investigation Into Russian Interference In The 2016 Presidential Election: Submitted Pursuant to 28 C.F.R. §600.8(c) (pp. 1-448) (United States of America, United States Department of Justice, Office of the Special Counsel). Washington D.C.: United States Department of Justice.