Special Counsel Robert Mueller’s report is expected to be made public early this week. The big special counsel news already occurred last month when Attorney General William Barr announced Mueller ended his investigation without a single American — much less a single American tied to President Donald Trump — being indicted for collusion with Russia to steal the 2016 election.
The news followed years of media coverage claiming Trump was an agent of Russian President Vladimir Putin and had colluded with Russia to steal the 2016 election from Hillary Clinton. That conspiracy theory led first to widespread spying on the Trump campaign using overseas intelligence assets and a variety of electronic surveillance.
Following Trump’s election, weaponized leaks from intelligence officials ramped up. Eventually it led to a no-holds-barred and no-expense-spared special counsel investigation of Trump and his campaign affiliates. The lack of indictments for the ostensible reason for the investigation was profoundly deflating — and embarrassing — for the Resistance and its media leaders.
Relatively few people will read the nearly 400-page special counsel report. Many will cherry-pick information to support their current opposition to the president. Here’s what is reasonable to expect from it.
Part 1: No Indictments For Russia Collusion
The report is divided into two parts. The first part is about Russia’s efforts to meddle in the 2016 elections. Mueller already indicted a bunch of mostly Russians as part of his investigation, although it is unlikely they’ll ever be tried or convicted of their alleged crimes. But Mueller did not find that anyone in the Trump campaign colluded with Russia to steal the election. As Barr put it in his summary of Mueller’s conclusions, “The Special Counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election.”
Whether you’re a diehard Mueller fan or a skeptic, few would suggest Mueller would have declined to indict anyone for Russia collusion if he had the goods on them. He already announced there were no more indictments coming out of his investigation. He did his best to squeeze anyone who might even possibly have information on collusion with Russia — including a sea of somewhat sketchy Americans who were in the Trump orbit — and came up empty.
Given how much attention has been paid to and blame has been given to Russian meddling, Americans may reasonably wonder why there weren’t many more Russians indicted for election antics, or even simply more meddling ascribed to Russians. Not that Facebook memes, Twitter trolls, and email hacks are nothing, but Americans may have expected much more expense and effort expended by Russians given how much the media blamed them for Clinton’s loss.
Either way: the collusion theory that was used to undermine the administration of the duly elected president and justify breaking every norm against him resulted in not a single indictment against an American for colluding with Russia.
Part 2: No Indictments for Obstruction
The second part of the report is about “obstruction of justice.” While the Mueller probe was sold to the American public using the Trump-Russia Collusion Conspiracy Theory, it was always actually about obstruction. That was partly because FBI investigators knew at the time of the special counsel’s launch that — in the words of disgraced chief investigator Peter Strzok — “there’s no big there there.”
When Comey leaked his memos to spur the launch of a special counsel, there was nothing meaningful about Russia collusion in them but he had written them — and later testified about them — so as to suggest that Trump’s frustration with FBI game-playing was really an attempt to obstruct law enforcement.
Recently, some of the involved actors at the Department of Justice and FBI leaked to friendly media that unelected bureaucrats started the probe out of revenge for Comey’s firing, to oppose Trump’s foreign policy, and because Trump had signaled to the American public that the FBI was playing games about whether he was under investigation. It perhaps needs to be said that it is the president, not unelected bureaucrats, who sets foreign policy, makes hiring and firing decisions, and oversees the Department of Justice.
It didn’t take recent leaks to know this was an obstruction investigation. That news leaked — even though we’re always told that the special counsel’s team never leaked — by June 14, 2017. Four friendly reporters at the Washington Post, including Devlin Barrett, Adam Entous, and Ellen Nakashima, received that leak and wrote it up in typical “bombshell” fashion:
The special counsel overseeing the investigation into Russia’s role in the 2016 election is interviewing senior intelligence officials as part of a widening probe that now includes an examination of whether President Trump attempted to obstruct justice, officials said.
The move by special counsel Robert S. Mueller III to investigate Trump’s conduct marks a major turning point in the nearly year-old FBI investigation, which until recently focused on Russian meddling during the presidential campaign and on whether there was any coordination between the Trump campaign and the Kremlin. Investigators have also been looking for any evidence of possible financial crimes among Trump associates, officials said.
Trump had received private assurances from then-FBI Director James B. Comey starting in January that he was not personally under investigation. Officials say that changed shortly after Comey’s firing.
Even though the leaks were frequently about obstruction, the focus remained on Russia for a few reasons — and not just because intelligence officials kept selectively leaking information about Russia to make it appear that there was a grand Trump-Russia conspiracy. Supporters of the president found the “obstruction” theories ridiculous. Opponents of the president kind of did, too.
They were promised by a sea of elites that Trump was a traitor who had colluded with Russia to steal the 2016 election. They weren’t going to settle for the idea that Donald Trump, of all people, could be brought down by highlighting his angry tweets or other complaints about being accused of being a Russian agent.
Deputy Attorney General Rod Rosenstein’s May 17, 2017, memo appointing Mueller special counsel said nothing of obstruction. It charged Mueller with investigating “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump” and “any matters that arose or may arise directly from the investigation.”
A highly redacted subsequent memo changed the mandate. If obstruction is part of that August 2, 2017, mandate, it was hidden from the American people. Even congressional committees seeking to perform oversight of the Department of Justice were kept in the dark about the mandate and whether it was appropriate or inappropriate.
Spinning and Hyping Obstruction
Barr is a highly respected attorney who served as President George H. W. Bush’s attorney general in the early 1990s. Now in his sixties, he’s back for another tour. His summary of conclusions from the special counsel report suggested a bit of frustration with the approach Mueller took.
While a private citizen, Barr wrote a memo about Mueller’s alleged obstruction theory and sent it to the Department of Justice. He wrote his memo based on public reporting that Mueller was attempting to go after Trump for constitutional and lawful firing decisions. Barr rightly thought that was a horrible idea that would damage both the Department of Justice and the presidency. (Read my article on the memo from December for more information.)
Barr also reportedly believes it’s improper for law enforcement officials to smear someone when announcing he is not being indicted for a crime. The inspector general’s report on the FBI’s investigation of Hillary Clinton supported Rosenstein’s criticism of Comey for smearing Clinton when Comey announced he was letting her go.
Barr spoke volumes in his summary when he noted that “The Special Counsel states that ‘while this report does not conclude that the President committed a crime, it also does not exonerate him.'” This line was Comey-like. Indeed, Mueller and Comey’s “long friendship” was described by the Washington Post in May 2017 as “brothers in arms.”
Nearly everyone in the media ignored this rather dramatic conflict of interest. Comey and Mueller frequently worked together when Comey was deputy attorney general and Mueller was FBI director. Carl Cannon wrote about some of their shared failures and misjudgments, including the notoriously botched anthrax case and their conniving during the Bush administration.
Americans are innocent until proven guilty. While it is the task of the special counsel to decide whether a crime occurred or whether to indict someone for a crime, it is not his job to “exonerate” someone. The language was a bit cute.
Barr, who seems to be one of the few adults in the District of Columbia, followed up Mueller’s little quote about exoneration by writing, “The Special Counsel’s decision to describe the facts of his obstruction investigation without reaching any legal conclusions leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime.”
He and Rosenstein went through the report, consulted with department officials, applied the principles of federal prosecution that guide decisions about whether to charge someone with a crime, and “concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.”
They went out of their way to say this wasn’t because he was a president, and it wasn’t even just because there was no actual collusion with Russia to steal the 2016 election, but because Mueller had failed to show the things that would be necessarily proven beyond a reasonable doubt to establish a crime had been conducted. Those things they’d have to prove are that Trump tweeted and engaged in other actions with “corrupt intent,” and that the obstruction had a sufficient connection to a “pending or contemplating proceeding.”
Critics of the president hope to move past those problems and focus on the nearly 400 pages cataloging the worst-case construction on President Trump’s angry tweets and other attempts to win the day against the now-debunked Russia conspiracy theory that was undermining his administration daily.
The never-leaky special counsel team leaked to both the New York Times and Washington Post that they were incensed that Barr had gotten to “set the narrative” by summarizing the report’s conclusions instead of letting them set the impeachment-for-obstruction narrative. “Limited information Barr has shared about Russia investigation frustrated some on Mueller’s team,” was the Post’s headline. The New York Times went with, “Some on Mueller’s Team Say Report Was More Damaging Than Barr revealed.”
While Mueller refused to indict Trump and Barr already noted that most of the alleged obstruction actions have been the subject of public reporting — including everything from tweets to failed attempts to get White House Counsel Don McGahn to order Mueller’s firing — seeing them all listed one after another is something, again, one might expect of Mueller’s close friend and ally Comey.
The special counsel was imagined as an “insurance policy” to help undermine the administration of the Department of Justice and possibly impeachment. This report will seek to accomplish that goal, even with no indictments. Expect the media to spin and hype whatever they can out of the report, as per usual.