The sadly incomplete Mueller report

Attorney General William Barr released his summary of the Mueller report even though nothing in the governing regulations that created special counsels mandates such release. Barr cogitated with his deputy, Rod Rosenstein, on the topic of who should get a copy of Mueller’s report or its summary, and he deserves credit for getting the answer right: Everybody should, subject to a careful review to screen out grand jury materials that are unlawful to disclose and protecting any open prosecutions and national security.

The regulations specify only that the attorney general receive a confidential report indicating or explaining so-called declinations to prosecute. This provision originated out of the bipartisan dislike of how the independent counsel statute had been abused as a political weapon, especially when criticism was disguised as wrongdoing but not accompanied by a decision to charge. Part of the reasoning for not requiring a public explanation for non-prosecution decisions is to protect the reputation of a subject who was investigated and found innocent, or at least not capable of being convicted.

{mosads}This general policy, prudent in most cases, fits uneasily with a 675-day inquiry into the propriety of presidential actions, however. Did Donald Trump “preserve, protect and defend the Constitution of the United States,” or did he safeguard, secure and advance the commercial interests of the Trump brand?

According to Barr, Mueller found abundant evidence of Russian offers to help candidate Trump during the 2016 election but could find no evidence that any American, with or without ties to Trump, “conspired or coordinated” with these Russian gestures. Thus, in the president’s words, Mueller confirmed Trump’s view that the whole sordid mess was little more than a hunt for witches.

But, hold on  — surely Trump’s use of stolen Democratic National Committee emails, traceable to Russian hackers, still begs explanation. Trump may not have “conspired or coordinated” Russia’s attacks on Hillary Clinton ahead of time, but he sure benefited from them after the fact. Before or after as an accessory is the same conspiracy. Foreign hackers stole 58,000 Democratic emails, and it is not difficult to see how their theft and WikiLeaks’s publication may have affected the outcome of the election.  

We know, for example, from these emails that leaders of the Democratic Party favored Clinton over Sen. Bernie Sanders (I-Vt.) as their nominee. This led to the resignation of the party chairwoman, Rep. Debbie Wasserman Schultz (D-Fla.), at a most inopportune time. In the final critical weeks of the campaign, Trump used the emails to powerful, perhaps outcome-determinative, effect.   

No evidence of U.S. or Trump campaign participation? Didn’t Trump associate Roger Stone gleefully brag about his conversations with WikiLeaks’s Julian Assange? And was it just coincidence that Trump could predict future email dumps? Candidate Trump made 164 references to the emails in the last weeks of the campaign, proclaiming “I love WikiLeaks.” Investigative reporter Robert Manne concludes: “Clearly, Trump believed in the political value of the Democratic Party emails WikiLeaks had provided.”

{mossecondads}There’s far more. The former British ambassador to Russia, Sir Andrew Wood, discovered the existence of a “dossier,” prepared by a former MI6 British intelligence officer, said to contain lurid accounts of Trump’s sexual activity caught on tape that could be used to blackmail him. The Barr summary leaves us in the dark about the authenticity of the dossier, the content of which the president vigorously denies.

Is the dossier reliable? On the surface, the entries in the dossier contain 15 to 20 well-placed sources inside Russia. Nevertheless, some of the information may well have been gossip or speculation or simply erroneous.

Barr’s summary fails to reveal how Mueller dismissed these alleged Russian-Trump interactions. One would think Mueller would find it difficult to not understand Trump’s repeated expression of approval for WikiLeaks publication of stolen goods as not representing a “tacit agreement” to promote “election interference” — Mueller’s awkward restatement of his charge to determine Trump-Russia collusion.

These and other Mueller loose ends need attention because they appear to be in defiance of fact, not law. Mueller was explicit when he had legal doubt; he concluded his report by confessing that he was departing from traditional prosecutorial standards in determining the sufficiency of evidence for obstruction of justice on the part of the president. But no corrupt intent or focus upon particular government proceeding — that’s fair enough. Too many special counsel proceedings have resulted in low-level process convictions such as obstruction or misleading investigators.

Like many Americans, whether pro- or anti-Trump, I am anxious to have the government return to genuine, positive legislative business. Frankly, the U.S. government is not a very effective gumshoe. Even an old “Columbo” episode would have “followed the money.” Trump’s insistence that his family financials are off-limits is yet another reason not to complacently accept Mueller’s work product as complete. It fails to perceive why our Framers opposed emoluments of all types — including gratuitous election assistance. Accepting even unrequested gifts from foreign sources inevitably puts personal and national interests on opposite sides.

Having overlapped with Barr in the Office of Legal Counsel at DOJ, I respect his professional judgment. I am confident that we both dearly wish that persons who have been treated well by America will not sell her short. Regrettably, Mueller’s effort fails to fully reaffirm this, and Barr’s meticulously fair-minded handling of difficult questions of access will be much needed in the near term — but fairness in access cannot hide an unsatisfying underlying review.

The special counsel notes, but does not rely upon, the long established DOJ view that a sitting president may not be indicted, but instead must first be impeached and convicted of a high crime or misdemeanor and removed from office before facing a criminal indictment. Sometimes this historically verified conclusion is misrepresented as putting the president above the law and Mueller may have skirted it for that reason.

In truth, it would have made the report stronger since it reflects the hardheaded common sense of the Framers who knew that a president who faced criminal charges would have to spend far too much time on his own defense, would not have credibility with foreign counterparts, and could not be counted on “to take care that the laws are faithfully executed,” a happy circumstance that unfortunately still eludes us.

Douglas Kmiec served as the U.S. ambassador to Malta from 2009 to 2011 and headed the Office of Legal Counsel (OLC) under Presidents Ronald Reagan and George H.W. Bush. He is the Caruso Family Chair in Human Rights and professor of constitutional law at Pepperdine University School of Law. Follow him on Twitter @dougkmiec.