We’re about to see the full Mueller report, but will it change anyone’s mind?

Attorney General William Barr is only days away from releasing the unredacted sections of special counsel Robert Mueller’s almost 400-page report on collusion and obstruction, raising the question — will it change anyone’s mind?

For more than a year, long before the investigation was complete and the report transmitted to the attorney general, the work of Mueller and his team has been scrutinized and prejudged by cable news lawyers and elected officials from both parties. Now that we may finally see the report itself, there may be few Americans left who have not already formed an opinion.

If true, we will have lost more than the chance to judge the final report with an open mind on its own merits — we will have surrendered our confidence in the fairness of the process, and our belief that our institutions can rise above partisan politics to work in the nation’s best interest.  

{mosads}Faced with the task of conducting a challenging investigation under the glare of unprecedented media scrutiny, constant legal punditry, and relentless criticism, I believe we can still expect Mueller’s full report to be professional and fair. The special counsel’s office is said to have employed 19 lawyers assisted by over 40 FBI agents, intelligence analysts and forensic accountants. Reportedly, about 500 witnesses were interviewed and more than 2,800 subpoenas issued. From all appearances, Mueller and his prosecutors did their job under trying conditions.

Unfortunately, even that may not be enough to satisfy many Americans.

The withering attacks from the president and his supporters have already delegitimized Mueller’s work in the eyes of some Americans. Unable to respond to these attacks — since prosecutors cannot comment on ongoing investigations and must largely do their talking in the courtroom and through the filings of their indictments and other documents — Mueller and his team have absorbed months of criticism. In response, cable news channels have devoted thousands of hours to pundit speculation, dissecting each filing and shred of information, often stretching the limited available facts to build a foregone case for President Trump’s criminal conduct and impeachment.

We need to see the full report to understand why Mueller reached the conclusions that he did, and those he did not. While Mueller’s findings on the question of collusion between the Trump campaign and the Russian government seem conclusive, the issue of potential obstruction of justice is far more murky. Mueller took the unusual — and as yet unexplained — step of declining to reach a legal conclusion on obstruction.

In my view, this analysis will be the most critical revelation.

We know that proving obstruction beyond a reasonable doubt is always difficult because it requires prosecutors to delve into the defendant’s state of mind. And, while motive is rarely an element of a criminal offense, in this case prosecutors have to at least show that actions taken by a defendant were done with the corrupt intent of influencing a criminal investigation or some other proceeding. Rather than making the case for an obstruction charge, Mueller apparently presented evidence both for and against it.

We need to understand why.

Although Attorney General Barr already 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,” this will certainly not be the final word on this issue. Remember, Mueller stated that “while this report does not conclude that the president committed a crime, it also does not exonerate him.” In layman’s terms, Mueller found the case for obstruction of justice to be too close a call, leaving it to others to decide. Left unanswered is who will ultimately make that call — the Department of Justice, Congress or the public.

{mossecondads}Finally, there is still the question of how much of Mueller’s report will make its way to Congress and to the public. During his confirmation hearings, Attorney General Barr testified that he believed in transparency and intended to release as much information as he can, consistent with his obligations under the law and regulations. We know that redactions are now underway, though we do not know is how extensive they will be.

In the end, the true test of the Mueller report will be how it is judged by the American people. In any federal investigation, the goal is to impartially and thoroughly gather the facts to provide answers to critical questions. But equally important is the need to maintain the public’s confidence in the fairness of the process to dispel any notion that somehow “the fix is in.”

We will soon see the report, but Mueller appears to have delivered on his mandate of conducting a thorough and impartial investigation, adhering to the rule of law, unmoved by public pressures. Mueller’s report deserves a fair hearing, but if the public’s view of this process has already been tainted, then the bedrock principle of fair and equal justice under the law may be beyond Mueller’s grasp.

If that proves to be the case, everyone will have lost.

Robert A. Mintz is a former federal prosecutor and former deputy chief of the Organized Crime Strike Force Division in the U.S. Attorney’s Office in the District of New Jersey. He is currently the managing partner of the Newark, New Jersey office of McCarter and English, LLP. Find him @Robert_Mintz.