Mueller Time? Not for Now

Drawing by Nathaniel St. Clair

The Mueller report does not exonerate Trump; it simply finds insufficient evidence of criminal conduct involved in Russian collusion.

Mueller says he failed to find admissible or sufficient evidence proving criminal conduct beyond a reasonable doubt, that is, the standard of evidence involved in “making a traditional prosecutorial judgement”.

At the same time, while using this standard, he concluded that “a statement that the investigation did not establish particular facts does not mean there was no evidence of those facts”.

As such, his report still contains evidence that satisfies other criteria which might (in principle) meet the standard for, e.g., impeachment, such as “beyond a reasonable balance of probabilities”. Mueller himself urges Congress to explore this possibility.

Moreover, collusion per se is not a federal crime (except in the unique case of antitrust law), and has to be combined with other elements of criminality (e.g. conspiracy) for it to be indictable. Hence while the evidence in this case could establish that collusion occurred, unless there was complementary evidence meeting “traditional prosecutorial standards” for conspiracy, no legal case could be made here against Trump and his associates.

Mueller made it clear that “conspiracy” could only be proved if the sides involved proceeded with their plans on the basis of an “agreement” or “coordination” between them, and he found the evidence for such an “agreement” or “coordination” to be insufficient for a criminal prosecution.  In Mueller’s words: ““The investigation did not always yield admissible information or testimony, or a complete picture of the activities undertaken by subjects of the investigation”.

In addition, Mueller was unable to draw a definitive conclusion on whether Trump or anyone in the White House obstructed justice during his investigation.

This is what we know so far, from Mueller’s Report and other sources dealing with this investigation:

+ that Mueller’s office deliberated at length with the DOJ about issuing a subpoena to have Trump interviewed by Mueller, but once Trump refused to be interviewed, the decision was made not seek this interview on the grounds that this could sidetrack the president to the possible detriment of his official responsibilities and duties.

+ While Mueller determined that the evidence his team of 19 attorneys gathered was not sufficient for them to establish (according to existing legal standards) that the crime of obstruction was committed, the evidence at the same time did not provide a basis for exonerating Trump. Mueller passed the buck to Congress to investigate whether Trump could be found guilty according to other standards, such as not fulfilling his Constitutional duties and the oath he took to defend the US Constitution. In Mueller’s words:

“The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgement. At the same time, if we had confidence after a thorough investigation of the facts that the president clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards however we are unable to reach that judgment. Accordingly while this report does not conclude that the president committed a crime, it also does not exonerate him”.

+ Mueller also hints that his own investigation was perhaps less than thorough! Gwen Clayton Diakos drew attention on her Facebook page to this section on page 288 of the Report:  “…the evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns”.

+ Mueller then says that it is clear that Trump sought to undermine his investigation, but Trump’s “efforts to influence the investigation were mostly unsuccessful, largely because the persons who surrounded the President declined to carry out orders or accede to his requests”. (Time perhaps for Trump supporters to drink moonshine or Miller Lite toasts to the disobliging and insubordinate Jeff Sessions, Corey Lewandowski, and Don McGahn!)

+ Mueller says he had “substantial evidence” of a Trump attempt to obstruct justice, but decided in the end not to prosecute. Here is another interesting Mueller quote: “Substantial evidence indicates that in repeatedly urging McGahn [the former White House counsel] to dispute that he was ordered to have the special counsel [Mueller] terminated, the president acted for the purpose of influencing McGahn’s account in order to deflect or prevent further scrutiny of the president’s conduct toward the investigation”. As stated earlier, Mueller clearly decided to kick the can into the halls of Congress.

+ that federal criminal investigations and congressional investigations are still underway into Trump’s conduct relating to a range of matters from campaign finance laws (such as hush money paid to Stormy Daniels and Playboy model Karen McDougal—Michael Cohen has already pleaded guilty to paying them off on Trump’s behalf, as well as the National Enquirer buying-up their stories to suppress them), to his taxes.

+ that Federal authorities are also investigating Trump’s inaugural committee for acts such as fraud, conspiracy, money laundering and a host of other crimes, while it spent an unprecedented $107 million dollars, including exorbitant amounts on expenses such as makeup and rooms in the Trump International Hotel. One donor has been singled by name: venture capitalist Imaad Zuberi, who donated $900,000 to the committee via a private equity company.

+ that a New York state attorney-general investigation is looking into Trump’s dealings with Deutsche Bank, which lent him money when no US bank would touch him. DB continued to lend Trump huge sums of money even after he had stiffed them on a loan repayment of $45m.

In fact, according to the New York Times, Mueller has farmed out federal indictments to:

1) the SDNY, in Manhattan,
2) the EDNY, in Brooklyn,
3) the EDVA in Virginia,
4) the U.S. Attorney’s office in LA,
5) the U.S. Attorney’s office in DC,
6) the DOJ National Security Division,
7) the DOJ Criminal Division.

Mueller is clearly a lawyer of the old school. Not for him the wiles and tricks of the lawyerly trade espoused by the two Michaels—Cohen and Avenatti—and the lackey William Barr and the whorish Giuliani.

Hence Mueller’s cautious balancing act:  insufficient evidence to convict Trump, but at the same time insufficient evidence to exonerate him.  And therefore farm-out any future action to other prosecutorial authorities and Congress.

Trump and his handlers of course spin Mueller’s decision not to proceed with a criminal conviction as a “win”, whilst of course overlooking the massive caveats integral to Mueller’s accompanying abstention from an exoneration.

Jerry Nadler, chair of the House Judiciary committee, has said that Barr will be testifying before the committee “in the near future”.  Mueller can expect a similar summons from Congressional committees.


Kenneth Surin teaches at Duke University, North Carolina.  He lives in Blacksburg, Virginia.