By Noah Feldman
The summary of special counsel Robert Mueller’s report submitted to Congress on Sunday by Attorney General William Barr can only be described as a significant win for President Donald Trump. Mueller did not find that the Trump campaign coordinated with or colluded with Russian efforts to subvert the 2016 election. And Mueller did not reach a conclusion on whether Trump himself committed obstruction of justice.
On top of that, Barr and Deputy Attorney General Rod Rosenstein determined separately that there isn’t enough evidence to charge Trump with obstruction.
House Democrats will no doubt keep investigating Trump. And we must not forget that former Trump lawyer Michael Cohen has already implicated Trump in campaign-finance felonies. Those potential crimes, which were not part of Mueller’s report, could theoretically be grounds for impeachment and criminal charges — or at least enough for the Democrats to keep investigations going until the November 2020 election.
But when Trump claims total vindication by Mueller on the Russia issue, he isn’t lying. He’s offering a defensible interpretation of Mueller report as summarized by Barr. The summary suggests a report that doesn’t sustain most of the most serious Russia related charges that have been imagined to lie against the president.
The first section of the report as summarized tells us that Russia indeed tried to influence the 2016 elections in favor of Trump. We knew this already from the indictments and investigations Mueller made public.
We don’t know, and maybe will never be able to judge with certainty, how much Russia’s efforts affected the outcome. Democrats will still be able to say that Trump’s election is tainted by Russian help. And Republicans will say the effect was small and uncoordinated.
Regardless, it’s worth noting that an official U.S. government report now says Russia tried covertly and illegally to influence the U.S. presidential election. If that isn’t an act of war, it’s the nonviolent equivalent. There must be consequences, and those consequences, overt or covert, should extend beyond mild sanctions on a few figures close to Russian President Vladimir Putin.
The report as summarized does not find that the Trump administration or other U.S. persons “conspired or knowingly coordinated” with the Russian efforts. This is probably the most important finding, or rather nonfinding, in the report.
Because we know that Trump affiliate Roger Stone was in touch with WikiLeaks founder Julian Assange, learned of the WikiLeaks dump of Russian-stolen Democratic National Committee emails in advance and told Trump about them, this nonfinding by Mueller means his team couldn’t prove that Stone was coordinating with the Russians in a single criminal conspiracy. The feedback loop wasn’t complete, or Mueller couldn’t prove it was.
The upshot is that at least part of the Trump campaign seems to have known what the Russians were trying to do to help Trump, but didn’t take the further step of trying to work with the Russians. That was the smart thing to do — or rather any attempt to coordinate would have been dumb and criminal.
As Barr noted in the summary, the Russians tried to coordinate with the Trump campaign through multiple angles of approach. Mueller’s report did not find that any of these were taken up. That means the infamous Trump Tower meeting with a Russian emissary, attended by Donald Trump Jr. and Trump’s son-in-law Jared Kushner, did not yield any coordination that could be proved by Mueller.
Again, the takeaway is that the Trump campaign let the Russians continue to try to help Trump, but didn’t actively collude or conspire.
Turning to obstruction of justice, Mueller’s report as summarized ducked the all-important question of whether Trump could be shown beyond a reasonable doubt to have tried to interfere with Department of Justice investigations on Russia-related matters.
This caution by Mueller seems reasonable in the light of the evidence that has been publicly disclosed. The firing of FBI Director James Comey in May 2017 could be read as obstruction, or could be read as Trump acting vindictively against an official who was following a course of conduct he didn’t like. It could be seen as an action within the legitimate executive power, or an action motivated by criminal, corrupt intent.
Mueller couldn’t prove either interpretation, so he punted the issue to Barr. Barr in turn wisely got Rosenstein on board — because Rosenstein, unlike Barr, is trusted by Democrats for having protected the Mueller investigation.
Together with Rosenstein, Barr determined there wasn’t enough evidence for a criminal charge against Trump.
That’s a judgment call, likely to be extensively second-guessed. Barr said it mattered to him that there wasn’t strong evidence of an underlying Russia-related crime to cover up. But of course there was another set of issues to cover up, those connected to the payoffs during the campaign to Stormy Daniels, who claimed to have a sexual affair with Trump.
Nevertheless, Barr’s determination is defensible. A criminal charge requires enough evidence to convict beyond a reasonable doubt, plus a dollop of moral certainty of guilt on the part of the prosecutor. Barr can fairly say those were lacking here.
Impeachment is another matter, legally speaking. But it seems safe to say that Trump will not be impeached for anything Russia related, no matter whether Democrats’ further investigations continue.
Trump’s troubles aren’t over. But his nightmare scenario is.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.