Many of us were disappointed Sunday when we got the news that the Mueller investigation wasn’t leading to an indictment of Trump. There was, among my Facebook friends, a kind of collective “damn!” How could Mueller – by all accounts, a competent, by-the-book prosecutor, not have found evidence that Trump colluded with the Russians and obstructed justice?
The media narrative was so established by Monday morning that the New York Times headlined its story “A Cloud Over Trump’s Presidency is Lifted.”
The story:
WASHINGTON — For President Trump, it may have been the best day of his tenure so far. The darkest, most ominous cloud hanging over his presidency was all but lifted on Sunday with the release of the special counsel’s conclusions, which undercut the threat of impeachment and provided him with a powerful boost for the final 22 months of his term.
I’m not surprised. The news cycle is so crazy these days, and everyone is so desperate to be the first with the breaking story, that nobody takes the time to actually read the documents and think about what they say.
It took a publication in London, the UK Guardian, to actually unwind what happened here, which is this:
Mueller produced a report that likely runs thousands of pages. Attorney General William Barr hasn’t read the whole thing. Not a single reporter has read it. Not a single news media talking head has read it. Instead, we have a four-page memo from Barr summarizing what he thinks are the key points.
Among them: Mueller did not decide whether to file charges against Trump for obstruction of justice. Given his mandate, he send just the facts to the Justice Department.
Mueller didn’t “exonerate” Trump. Instead, a member of Trump’s cabinet, who got his job in part because he said a sitting president can’t be indicted, decided that the president won’t be indicted:
There is no escaping that the decision not to prosecute the president was made by one of his own cabinet members who has already privately described Mueller’s investigation of obstruction of justice as “fatally misconceived.”
That position hinges in part of Barr’s argument that because there was no underlying crime, Trump can’t be accused of obstruction:
Critically, Barr makes the point that at least part of the reason Trump is not being charged is due to the lack of an underlying crime. That while there may be sound arguments for Trump obstructing justice, it was not itself a criminal act because there had been no crime in the first place.
That, a lot of Constitutional lawyers and experts on the issue have agreed, is just wrong.
“You can obstruct justice even if a prosecutor ultimately finds you were not guilty of committing the crime that was the focus of the underlying investigation,” said Miriam Baer, a professor at Brooklyn Law School. “Even if a prosecutor ultimately concluded that you weren’t guilty of crime X, that says nothing as to whether you thought that you might be indicted for crime X, or, for that matter, if you thought one of your friends of family members would be indicted for crime X.”
Eric Posner, a professor at the University of Chicago Law School, agreed that an obstruction prosecution could have been argued in this case.
“Suppose Trump knew that no crime had been committed but believed that the investigation would uncover politically or personally embarrassing information, or if he believed that the investigation would embarrass or implicate an ally, aide, or family member,” Posner said. “Then interfering with the investigation is a crime. The reason is that the purpose of the investigation is to find the truth, and if people obstruct an investigation, then the investigation becomes more difficult, wasting government resources.”
So while a lot of pundits are saying the Democrats are now in trouble, the truth is that the full report is going to leak out, bit by bit, over the next few months. And the evidence in that report may well suggest that Trump obstructed justice and that Barr simply declined to pursue the case.
Since we don’t know what the Mueller report says, it’s too early to be disappointed by it. Again, from the Guardian:
That case would sink any other leader in any other western country. Any previous president of the United States would need to start lawyering up for impeachment.
Sure, it’s time for Democratic candidates to talk about issues, not just about Trump’s corruption. But it’s also time for the major news media to take a deep breath and read the documents before they start pardoning the president.
