Getting Excited About the Word “Precedent,” and Other Mueller-ish Things
On a scale from 1 to 10, how confident are you in your ability to explain the Mueller Investigation to a friend?
We’ve been reading the headlines. For two years now, we’ve been keeping tabs on (and frankly, trying not to confuse) figures like Michael Flynn, Michael Cohen, James Comey, Bill Barr, and the man of the hour, Bob Mueller.
And now that it’s over (kind of), what actually happened? And more importantly, why does it matter? Here’s a hint that will perk up the ears of all of my budding legal minds out there: precedent. To the rest of us that aren’t nerds—sorry, but also, if you’re getting excited about the word “precedent,” you’re probably nerdier than most—I’ll walk us through why special counsel Robert Mueller, an apolitical entity, handing off the decision of obstruction of justice to Attorney General Willam Barr, a very political figure, matters for future investigations.
Did Donald Trump conspire with Putin?
Only four months following Donald Trump’s swearing into office as our 45th President of these United States, Deputy Attorney General Rod Rosenstein appointed Robert Mueller as special counsel of the Russia probe. In May of 2017, Mueller’s only job was to investigate ties between the Russian government and presidential candidate Donald Trump’s campaign. In June of 2017, Mueller’s role expanded into trying to identify a possible “obstruction of justice” by the president.
Not only was he looking into the nature of Donald Trump’s relationship with Russia over the course of his campaign and early presidency, but he was also looking into whether or not Trump was trying to illegally hinder the operations of the special counsel. Talk about a tense work environment! Well, well, well, how the turntables.
What do we know?
We know that Russian actors made contact with representatives of the Trump campaign multiple times over the course of the 2016 presidential election, Donald Trump was pursuing a real-estate deal in Moscow at the time of his candidacy, and Russia sought to illegally disrupt the American political process in 2016.
Here’s the Mueller Probe scoresheet:
In the end, the investigation resulted in a total 199 criminal charges, 37 indictments or guilty pleas, and 5 prison sentences. In the period between May 2017 and March 2019, six members of Trump’s inner circle plead guilty to a multiplicity of charges (see: George Papadopoulos), former Trump campaign adviser; Michael Flynn former national security advisor; Richard Pinedo, California businessman and computer science major; Richard Gates, former political consultant; Michael Cohen, former attorney for Donald Trump; Paul Manafort, former Trump campaign chairman).
On Friday, March 22, 2019, the investigation ended when Attorney General William Barr received Mueller’s report.
On Sunday, March 24, 2019, William Barr sent a summary of Mueller’s report to Congress saying that the investigation “did not establish” that Donald Trump or members of his campaign “conspired or coordinated with the Russian government in its election interference activities,” and yet Mueller’s findings do not “conclude that the President committed a crime, it also does not exonerate him.”
Wait. Why is Attorney General William Barr making a statement to Congress when Robert Mueller could have filed his report on the counsel’s findings directly?
Following legal precedent, it is the nature of the special counsel to give full reports to the acting attorney general, who then sends over a summary of the broader report to Congress.
So what did it say?
Mueller gave the nation a little bit of a curve ball when he failed to take a stance on the question of whether or not an obstruction of justice case can be brought against our president. Mueller put the burden on Barr to make a decision on the question of obstruction. Barr’s summary revealed that there is just not enough evidence to prove that Donald Trump committed a crime beyond a fraction of a doubt. But he also states that the Mueller findings do not exonerate our president.
Obstruction of justice? Eh.
In the wake of this all, why does it matter?
It is expected that a special counsel make a decision on the questions central to their investigation proceedings, and then pass their findings along to the DOJ to deliver a summary of said decisions. The procedure is designed in such a way that an apolitical body hands down the decision to the interpretation of an American political actor.
What is unique about Mueller’s report is that he left the legal decision of whether or not our Republican President is guilty to a conservative legal mind and political appointee of the Trump administration’s choosing.
Now the interesting part of the whole thing is that prior to being appointed to attorney general in 2019, William Barr—who also served as the attorney general under President George H. W. Bush—submitted a memo to the Trump administration which outlined a legal interpretation of obstruction of justice that limited a true obstruction charge to only those cases in which the underlying crime is proven to have been committed.
Translation: One can only be guilty of obstruction of justice if it is proved that they actually did the illegal thing in the first place.
In other words, if an investigation is launched into whether or not I stole a candy bar (let’s say, a Twix) from the gas station on the corner, and I—for whatever reason—try to impede that process, but I never stole the candy bar in the first place, I cannot be found guilty of illegally hindering the investigation.
In summary, Donald Trump, while he was courting William Barr for Attorney General of the United States, was made aware that Barr was of the mind that should an investigation take place, obstruction charges shall not be brought against an individual whose original crime cannot be evidenced. Barr’s interpretation of the law was clear long before Mueller authored his report and passed the legal decision along to our attorney general. Spoiler alert! Trump knew the final rose before the season even started.
This investigation is setting the precedent that the special counsel need not come to a decision on a matter if the evidence is too convoluted. However, the purpose of a special counsel is to remove the decision-making from the political realm and place the burden of decision making on an apolitical body. Mueller’s legacy may amount to be a historical change in the nature of special counsel investigations.
What are people saying?
Time, reports that “soft” partisan—indicating low levels of party loyalty—focus groups including one six-person panel made up of college-educated Republicans, one of college-educated independents, and one of Democrats without college degrees generally agreed that the investigation was merited. Despite some disagreements, all three focus groups expressed that they were not expecting the investigation to result in an indictment of the president, and a majority of panelists expressed distrust in politics and political figures in general. Time reports that “participants expressed dismay at the atmosphere of political division and the negative tone of politics.” On the short list of things that Americans agree on, add “dismay about political division” right after “love for Netflix Original Queer Eye.”
In the coming days, Barr will decide how much of Mueller’s report to release to the White House, Congress, and the American people. Some are speculating that Barr will consult with Trump’s lawyers to decide whether or not the president will invoke Executive Privilege—or, the president’s power to with information from the public in their own interest. House Democrats are demanding the full report. Whereas, Republicans laying low, standing by for word from Barr. Senate Majority Leader Mitch McConnell, R-Ky. recently blocked a resolution that called for a full release of the report to the public.
Okay, so how about now?
On a scale from 1 to 10, how confident are you in your ability to explain the Mueller Investigation to a friend? My hope is that your net score jumped a few points since you began reading. We’re now able to sort out Flynn from Cohen and Bob from Bill. We have a better understanding as to how special counsel reports really work and that there’s a hand-off between the apolitical investigation leaders and the attorney general who’s a political appointee of the president. We know that this unprecedented lack of decision by Mueller might color the future of investigations into the Executive.
It’s been a wild ride so far folks, and if any of you were getting House of Cards or Scandal vibes while reading, you’re among friends. Keep your fingers on the pulse of this story as it moves forward; I predict that Mueller’s legacy will leave a lasting impact on not only this administration but many more to come.
Jenna is a coffee-loving, overalls-wearing CA-to-DC transplant who also happens to be the Creative Director of Hey Mira. She does the social media thing for her day job (follow @dcfray *shameless plug*), and she's currently trying to navigate the wild waters of being a young, idealistic professional. One day, she'll change the world. For now, she's just trying to ace the (vegetarian) meal-prep game first.