Mueller Report: No Collusion

Russian Connections

The Mueller Report indicates that despite multiple contacts between the Trump campaign and various Russians, the investigation did not find enough evidence that either Trump or officials in his campaign “colluded”* with Russia to interfere in the 2016 presidential elections.

Mueller’s charge in the investigation was to find “any links and/or coordination” between the Russian government and individuals associated with Trump’s campaign.  The forty-plus instances of documented contacts between the campaign and Russia indicate that the Russian government wanted Trump to win and worked actively to support him, breaking a number of US laws in the process.  It also shows that the Trump campaign was more than happy to receive data and other help from the Russians.  But, as Mueller correctly reports, these contacts are not the same as “links” or “coordination.”  From that point of view, President Trump had nothing to fear from Mueller’s investigation into Russian interference in the election.  It appears that if Trump had simply left Mueller’s investigation to proceed unobstructed, there would be no issue now.

Obstruction of justice, however, is another matter completely. 

Obstruction of Justice

From the very announcement of the special investigation, Trump seems to have been terrified.  Mueller’s report quotes the President:

Oh my God, this is terrible. This is the end of my presidency. I’m fucked, … Everyone tells me if you get one of these independent counsels it ruins your presidency. … It takes years and years and I won’t be able to do anything. This is the worst thing that ever happened to me.

It is then that the obstruction of justice apparently began.

Against his own interests, President Trump was unwilling to leave the investigation alone.  There is abundant evidence in Mueller’s report that the President began almost immediately to try to obstruct the investigation, for instance, asking James Comey to suspend the investigation of Michael Flynn “because of the Russian thing.”  A few days later Trump, himself, fired Comey.

According to the report, Trump obstructed justice and therefore broke the law.  Why didn’t Mueller just say so?

All those who have read the report agree that it offers a point-by-point portrayal of the President’s efforts to obstruct justice by interfering with Mueller’s investigation.  But despite the overwhelming evidence, the report refuses to give an opinion as to whether or not Trump broke the law.  This is not — as Attorney General William Barr initially implied — because Mueller is unable to make up his mind.  Rather, as Mueller writes in several places in the report, it is not his role to determine whether the President broke the law.  That is Congress’s responsibility.

Mueller is quite clear, however, that the report does not exonerate Trump from the obstruction-of-justice charge:

• Mueller's team unearthed "multiple acts by the President that were capable of exerting undue influence over law enforcement investigations, [of both] the Russian-interference and obstruction investigations."
• Mueller reports he would have exonerated Trump if the facts had supported that conclusion, but it adds that "based on the facts and the applicable legal standards, we are unable to reach that judgment."  This is a long way from “exoneration.”

For all practical purposes, Mueller does indict Trump.

Checks and Balances

The accepted understanding of “checks and balances” gives only to Congress power to prosecute the president.  Appointed by the Department of Justice, Mueller is a representative of the executive branch (and, therefore, formally under Trump!) and correctly concludes that he should not make that judgment.  Nevertheless, the report provides a clear roadmap for a congressional investigation.

This nuanced approach, of course, leaves President Trump the opening to declare that the report exonerates him of any wrong-doing. 

So how does Mueller justify not making a clear statement about what would seem to be an obvious judgment?  He cites two issues:

1. “A federal criminal accusation against a sitting President would place burdens on the President’s capacity to govern.”  This follows the Justice Department’s Office of Legal Counsel’s 1970 memo that

restated the Justice Department’s view that the text of the Constitution does not give the president express immunity from prosecution but that the powers of the presidency are so vast and important as to bar the indictment of a sitting chief executive. (An indictment or jury verdict would have a “dramatically destabilizing effect…)

A sitting president cannot be criminally prosecuted, but presidents can face criminal prosecution after leaving office.  While there is debate about this judgment that a sitting president can be indicted, it is clear that Mueller agrees with it.  He lays out the evidence and leaves it to a later prosecutor to use the evidence for a criminal case.

2. If sitting presidents cannot be legally prosecuted, Congress has to fulfill its constitutional obligation to investigate and, ultimately, to impeach them and remove them from office.  From the report:

The conclusion that Congress may apply the obstruction laws to the president’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.

Mueller does not want to “preempt constitutional processes for addressing presidential misconduct.”  Again, he will present the evidence, but it’s up to Congress to act.


The President’s trumpeting that he has been exonerated,  then, is simply untrue.  What Mueller does not do is exonerate the President.  Anyone reading the report will understand that the President is guilty of obstruction of justice; we do not need Robert Mueller to draw that conclusion.

*Although the President's favorite characterization of the investigation, “collusion” is not a legal term, the dictionary definition of which is “a secret or illegal cooperation or conspiracy, especially in order to cheat or deceive others.”  This would require a much greater burden of proof than the charge given to the investigation.