Politics

Does AG Barr’s summary of the Mueller report “exonerate” Trump? I asked 15 legal experts.


Not quite — but it’s mostly good news for the president.

Special counsel Robert Mueller has finally completed his Trump-Russia report.

Attorney General Bill Barr made the announcement in a letter to congressional committee leaders on Friday. We’ve yet to see the full report, but on Sunday Barr released a summary of the report’s principal conclusions to Congress.

At first glance, it appears to be mostly good news for President Donald Trump. Barr’s summary explicitly states that “the Special Counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 presidential election.”

On the question of obstruction of justice, the initial report is more ambiguous. The special counsel’s office, according to Barr, “did not draw a conclusion — one way or the other — as to whether the examined conduct constituted obstruction.” But Barr wrote that he and Deputy Attorney General Rod Rosenstein concluded that there wasn’t sufficient evidence for obstruction charges.

That doesn’t necessarily exonerate Trump or anyone in his campaign, but it leaves a lot of room for speculation.

So, given what we now know, where does all this leave us? What is the legal significance of this report for Trump? Does it actually exonerate the president?

To get some answers, I reached out to 15 legal experts and asked them to react to Barr’s initial summary of Mueller’s findings. Their full responses, edited for clarity and length, are below.


Victoria Nourse, law professor, Georgetown University

This report indicates that the president did not conspire with the Russians and did not obstruct justice — or at least that obstruction would be difficult legally and factually to prove. The criminal law is a poor measure — a very low bar — for a president.

The Constitution, which is our highest law, provides that the president must faithfully execute the law and the Constitution. One did not need a criminal investigation to determine that Russians hacked our election. Legally, that is the most important part of the report, since it goes to the heart of our democracy.

This report is likely to make efforts by those who seek to impeach the president more difficult. Some people wrongly believe that impeachment requires an actual crime. The Constitution does not so provide. Political offenses are sufficient. The founders, in my opinion, created impeachment as a means to oust an incompetent or disloyal president, but hoped that it would be used rarely.

This report does nothing to other investigations, in the Southern District of New York and elsewhere, that may provide more light on election hacking and may implicate the president in other potential crimes (money laundering, fraud, tax crimes etc.).

Jessica Levinson, law professor, Loyola Law School

Bottom line — this is a huge victory for Trump and his supporters. The report takes the wind out of the sails of the congressional Democrats who wish to continue investigating Trump, his businesses, his charity, and his inauguration. I think the American public could soon have “investigation fatigue.”

Mueller’s conclusion on collusion charges is an enormous vindication for Trump, who has been chanting “no collusion” for years. It’s slightly less helpful for Trump that his attorney general, Bill Barr, instead of the special counsel, concluded that Trump should not be charged with obstruction of justice, but the headline for Trump is the same — vindication on both major questions Mueller was investigating.

It’s important to remember that it’s a high bar to charge obstruction of justice, and in particular it’s difficult to prove corrupt intent, but this likely isn’t what the public will remember. The public will remember that Trump will not be charged with either collusion or obstruction of justice.

Diane Marie-Amann, law professor, University of Georgia

With his four-page letter on Mueller’s report, Attorney General William Barr drives the obstruction-of-justice ball firmly into Congress’s court.

Although the “‘report does not conclude that the President committed a crime,’” as Barr writes, quoting Mueller, “‘it also does not exonerate him.’” Barr continues that he and Rosenstein weighed the evidence presented in the report, and found it “insufficient to establish that the President committed an obstruction-of-justice offense.”

This may not end the matter, however. That’s because the conclusion turns on whether Barr and Rosenstein believed prosecutors could prove beyond a reasonable doubt that President Trump’s actions, in their words, “had a nexus to a pending or contemplated proceeding, and were done with corrupt intent.”

“Beyond a reasonable doubt” is indeed the standard of proof for conviction in a federal criminal court. But the same is not true for other forums. Most notably, conviction in an impeachment proceeding depends on the judgment of senators following a trial in the Senate — a trial that cannot take place unless the House of Representatives votes to send to the Senate articles of impeachment. Thus the ball now lies in Congress’s court.

But given another Barr quotation of the Mueller report — that the special counsel’s “‘investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities’”— the obstruction-of-justice ball well may languish there.

Ciara Torres-Spelliscy, law professor, Stetson University

Russians were eager to offer help to the Trump 2016 campaign (from the Russian lawyer who showed up at Trump Tower in 2016 to meet Donald Trump Jr., Jared Kushner, and Paul Manafort, to Alexander Torshin, who met Don Jr. at dinner at an NRA convention in Kentucky).

Barr’s characterization of the Mueller report is that no one in the Trump campaign came to an agreement with the Russian government to conspire with the Russian interference in the 2016 election.

This is reassuring to a point.

The fact that the Trump campaign did not report the Russian offers of help in real time in 2016 remains troubling at best. And this could be fertile ground for investigations by the Democratically controlled House. Moreover, to the extent that individuals lied to Congress during the course of House and Senate investigations into the 2016 election, this could still expose more people to liability on that perjury front.

The Barr letter also refers to ongoing matters including those that have been referred from the special counsel to other offices. This would clearly include the prosecution of Rick Gates, Roger Stone, and Michael Cohen. Another open question is whether the special counsel referred any other matter that is not yet public to another office for federal prosecution.

The Southern District of New York has already referred to President Trump as “Individual 1” and implicated him in Michael Cohen’s campaign finance crimes. One of the few times that Barr quotes the Mueller report is to state “while this report does not conclude that the President committed a crime, it also does not exonerate him.” Presumably that “no exoneration” would apply to the Southern District of New York’s own investigations of criminality.

In other words, while Barr has exonerated the president on the question of obstruction of justice, the question of whether the president violated campaign finance laws could remain a live issue for SDNY.

Christopher Slobogin, law professor, Vanderbilt University

If the summary is correct that the special counsel found no evidence that the Trump campaign conspired or coordinated with the Russian attempt to influence our electoral process, then the claim that Trump obstructed the investigation into that attempt is significantly undercut. It is difficult to show a corrupt motive to obstruct an investigation into a crime that did not occur.

At the same time, if there is weak to no evidence of collusion or obstruction, then concerns about tainting the grand jury are minimal and the full report should be released.

Miriam Baer, law professor, Brooklyn Law School

To show obstruction, a prosecutor must demonstrate a nexus between the particular conduct and the “proceeding” it is corruptly intended to obstruct. On page three of his letter to Congress, Barr advises that Mueller declined to say, one way or the other, whether President Trump obstructed justice.

The attorney general then goes on to advise that he and Rosenstein have reached their own joint conclusion that the facts laid out in the report fail to establish a “nexus” between Trump’s behavior and any specific “proceeding.”

Moreover, Barr states as well that report fails to establish evidence of “corrupt intent.” The determination that corrupt intent is lacking rests, at least in part, on Mueller’s other conclusion — that the evidence fails to establish that Trump himself conspired with the Russians to interfere in the 2016 presidential election.

Many observers will question Barr and Rosenstein’s conclusions that none of Trump’s actions (not all of which occurred in public) were “obstructive,” or lacked “corrupt intent.” The nexus element may be more complicated, however, since it is contingent on the specific factual conclusions contained in the special counsel’s report.

For all these reasons, it will be crucial for the attorney general to provide Congress as full a recitation of the facts contained in the special counsel’s report as possible. Moreover, because the underlying facts potentially indicate behavior warranting impeachment, many members of Congress are sure to demand a recitation of the Mueller report’s facts and its underlying documents.

Trump may say he feels vindicated by this report, but the summary itself falls far short of exonerating him.

Keith Whittington, politics professor, Princeton University

The letter is notable in several aspects. It is significant in stating clearly that all indictments from the special counsel’s office have already been publicly disclosed and that no new indictments are recommended.

That does not preclude the possibility of further indictments arising from related investigations by either federal or state prosecutors, but those will presumably not focus on either Russian activities relating to the 2016 election or possible obstruction of justice.

The letter is clear that the special counsel found no coordination between the Trump campaign and Russian actors to interfere with the 2016 election. It appears that we already know the extent of the relationship between the two, and moreover we already know the extent of the Russian meddling in the election. There are no new revelations here on actions that Russia took to affect the election or of actions that campaign officials took to shape Russian interference.

The letter is particularly interesting on the obstruction of justice question. The special counsel did not rely specifically on the view that a sitting president cannot be indicted and did not factor in the issue of whether the president’s use of his Article II powers could provide the basis for an obstruction of justice charge.

Instead, the special counsel refrained from reaching any legal conclusions about whether or not the president engaged in obstruction of justice and the attorney general is now determining that no obstruction charge would be appropriate.

It would seem that both the attorney general and the special counsel are leaning heavily on the notion that the president could not have been acting with corrupt intent if there was no underlying crime for the president to attempt to cover up.

Given ongoing state and federal investigations, the president and his associates are not entirely out of the legal woods, but the Russian collusion angle is at least done. If the special counsel’s report is consistent with the attorney general’s letter, this will presumably take the steam out of the sails of an impeachment effort based on Russian collusion or obstruction of justice.

Robert Weisberg, law professor, Stanford University

A comment on obstruction: Barr’s reference to what Mueller says, and his own conclusion that he would not (if he constitutionally could) charge Trump with obstruction — these are careful and a bit slippery. He leverages the no-conspiracy finding to say that this bears on the question of whether Trump obstructed — i.e., if Trump didn’t conspire, he’d lack the motive to obstruct.

I suppose that is a legitimate evidentiary factor, but Barr may be imputing more thoughtfulness or awareness to Trump than is warranted. Further, Barr’s ultimate conclusion treats obstructive conduct and corrupt intent as if they are separate elements. Anyone who tries to make sense of the clotted and obtuse language of the obstruction statutes and the utterly unhelpful court interpretations — especially the Aguilar case—would realize that it is a little disingenuous to label these as separate elements.

In any event, it would (will) help if Barr explained what he thinks the notoriously vague term “corruptly” means. Obviously we look to appellate opinions, not prosecutorial decimations, to help us understand criminal statutes — but Barr owes us some explanation of how he understands these laws.

Jimmy Gurulé, law professor, Notre Dame

The order appointing Mueller to investigate whether Trump or members of his presidential campaign colluded with the Russians to interfere with the 2016 presidential election also authorized Mueller to investigate any crimes arising from the Russia investigation, which includes whether Trump engaged in obstruction of justice.

By failing to reach a conclusion on that matter, Mueller failed to fulfill his mandate. Furthermore, referring the obstruction of justice issue to Barr, who had decided that Trump had not obstructed justice prior to being appointed to serve as attorney general was a serious mistake and undermines the public’s confidence in the outcome.

Stephen Legomsky, law professor, Washington University

However informative the Mueller report may be, my sense is that the vast bulk of the salient revelations will end up coming from other sources.

Much information is or soon will be available from earlier news reports, the unredacted allegations in the various Mueller indictments, even the redacted allegations that hopefully will be provided to Congress, the indictments and evidence in the actions brought by both the Southern District of New York and the New York state attorney general, the previous closed-door and public testimony of the witnesses before the various congressional committees, future information from cooperating witnesses, and future leaks from administration sources.

Hopefully, too, the evidence on which the Mueller report was based will be shared with the congressional committees and will prove even more valuable than the text of the report. And all of this will generate leads from which the congressional committees can ferret out still more facts. So the Mueller report, while critical, will prove to be just one piece in the larger investigation.

Frances Hill, law professor, University of Miami

Barr’s brief letter is likely to become the centerpiece of the Trump political message for the 2020 campaign. While the Democrats will, as they should, continue to press for the prompt release of the Mueller report and all of the underlying documents, this is likely to be overshadowed by the action taken today by Barr.

The controversy will center on the obstruction charge and why the special counsel did not conclude that he found obstruction but followed the guidelines of the DOJ and thus did not indict a sitting president. Why did the special counsel leave the operative legal conclusion based on his work to the attorney general? We may never know.

We are also left to wonder whether the constraints on the investigation relating to the conspiracy issue, especially the constraints in the investigation of Trump’s business dealings with confidants of Russian President Vladimir Putin, did or did not provide evidence that Trump was sufficiently compromised that it might (or might not) have been possible to conclude that he was engaged in a conspiracy to prevent disclosure of his prior business dealings.

While these questions will linger and while they should continue to be investigated by both Congress and federal prosecutors, such efforts are now likely to be seen as either not constructive or excessive, even if they are ultimately proved to be true.

It is possible to conclude that Mueller in fact wrote a report that left the issues in this matter in the hands of the American people in the 2020 election. Whether that was the special counsel’s intent, that is where the issues now will be decided.

It becomes now particularly important to do all that is possible to counter ongoing efforts of the Russians and others to wage cyberwar against the voters. It is also important to counteract efforts by domestic political actors to selectively suppress the right of all Americans to vote.

Ilya Somin, law professor, George Mason University

Barr’s summary states that the special counsel did not find that Trump or members of his campaign colluded with Russian government efforts to influence the 2016 presidential campaign. This crucial finding appears to exonerate Trump on the crucial issue of “collusion” with Russia.

On the question of obstruction of justice, Barr’s summary quotes the special counsel’s report as stating that “while this report does not conclude that the President committed a crime, it also does not exonerate him.” Barr goes on to state that he and Rosenstein have concluded that the evidence “is not sufficient” to conclude that Trump committed obstruction of justice.

The equivocal nature of the obstruction finding emphasizes the importance of publicly revealing as much of the report as possible, so that Congress and the public can make an informed judgment. While Justice Department policy forbids prosecution of a sitting president, Congress can still pursue impeachment proceedings against him.

Unlike a criminal trial, impeachment does not necessarily require proof of guilt beyond a reasonable doubt. In the view of most legal scholars across the political spectrum, impeachment is also possible in cases of illegal conduct or abuse of power that are not crimes.

Today’s revelations were beneficial to Trump’s cause. But he is not out of the woods yet. Multiple state and federal investigations into possible lawbreaking on his part are still ongoing. Congress would also do well to further investigate such technically non-criminal abuses of power as the president’s cruel “family separation” policy, which has been ruled unconstitutional by a federal court, in a June 2018 decision.

The administration continues to drag its feet on reuniting many of the separated migrant children with their families, and new separations still occur, even long after the court’s ruling.

The Barr letter is an important development. But it is far from the end of this particular road.

Jens David Ohlin, law professor, Cornell University

What strikes me as most important is the fact that Barr (not Mueller) made the determination not to indict the president for obstruction of justice. Based on just the evidence from the public record, even if the Mueller report added no new information, there was enough evidence to warrant a prosecution of the president for obstruction.

Incredibly, Barr states in his letter to Congress that his decision not to pursue an obstruction charge was based, in part, on the absence of evidence that Trump committed a crime related to Russian election interference.

It seems to me that this represents a major legal error on Barr’s part. Trump could still have a “corrupt intent” even if he didn’t personally conspire with the Russians, but nonetheless wanted to shut down an investigation that was threatening his close aides and associates — like former National Security Adviser Michael Flynn.

We’ll have to see if Congress is willing to rectify Barr’s legal error.

Ric Simmons, law professor, Ohio State University

The only possible conclusion to draw based on this summary is that the Mueller report is a complete exoneration of President Trump from any criminal activity regarding collusion with Russia or obstruction of justice. Robert Mueller has an unassailable reputation as a non-partisan professional law enforcement officer of the highest caliber, and he conducted an exhaustive, comprehensive investigation, leading a team of nearly sixty lawyers and investigators for almost two years, ultimately concluding that there was no coordination or collaboration between the Trump campaign and Russia.

It is true that Mueller did not explicitly exonerate the president on the obstruction of justice charges, but as the summary notes, the fact that there is no evidence of collusion on the part of the president makes it very unlikely that the president did in fact obstruct justice in this matter. More to the point, it would be nearly impossible to legally prove that Trump obstructed justice, since proving such a charge would require the prosecutor to establish intent, and it would be paradoxical to argue that the president intentionally obstructed justice when he was factually innocent of the underlying charge.

Peter Margulies, law professor, Roger Williams University School of Law

In declining to find that President Trump obstructed justice, Attorney General Barr ranked his view of the presidency as an institution over the unprecedented conduct of the White House’s current occupant. The matters that Special Counsel Robert Mueller described as “difficult” included whether Trump’s firing of FBI Director Jim Comey constituted obstruction. In deciding against obstruction charges, Barr had to weigh the disruption to the Russia probe caused by Comey’s dismissal against the president’s power to fire political appointees.

Barr and Deputy Attorney General Rod Rosenstein apparently were concerned that criminalizing the Comey firing and other Trump actions that “took place in public view” would displace presidential accountability from the electoral and political realm to the courtroom. In the memo Barr wrote about the Mueller probe before becoming Attorney General, Barr worried that this shift in accountability might chill future presidents’ ability to make difficult decisions about policy and personnel.

But whether or not criminal prosecution proceeds now, Mueller’s statement that his report does not “exonerate” the President should give pause to Congress and to all citizens. Surely, the United States deserves a chief executive who is definitively free of the taint of obstruction. Mueller’s refusal to give the President that clean bill of health should spur further inquiry by Congress about the contents of Mueller’s report and the conduct of this particular president.
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