Mueller Report, II: What sort of investigation, anyway?

I feel compelled to start this post with my usual disclaimer: I am not currently licensed to practice law, and have never practiced criminal law. The analysis of the report is just that, my analysis.

Before I start, I need to say two things:

  • This is my reading of the Report. I have not even read the Washington Post materials that they included in their edition.
  • It’s been a long time since law school, and I was never a criminal lawyer. Take my analysis with, in the words of the emcee at Woodstock, “as many grains of salt as you want.”

Today’s post centers on the first volume of the Mueller Report, the investigations of the Russian impacts on the 2016 election and possible coordination between the Russians and the Trump Campaign.

One of the questions that first arises for me is: what sort of investigation was this, anyway?

There has been some confusion in the media (looking at you, Fox News) and with both President and his conservative supporters. “No collusion!” became their rallying cry, except when for a while it was “Collusion is not a crime.”

They’re right about that: collusion is not a term with any criminal legal meaning; it’s not in the federal criminal statute and it’s not a legal term of art.  (Mueller Report, “Introduction to Volume 1,” p.2 (Report)) However, the President and his supporters did not pull the word out of the thin air. Although not used in the appointment document, in one of the subsequent memos by Rosenstein he did use the word “colluding.” (Report, p. 11 (Not to mention that “collusion” as a concept is generally understood by the public, as a result of antitrust actions in the sports world and in business.)

This may seem to be a minor point, but the whole issue has been thoroughly politicized on both sides.

The Acting Atty General’s appointment charged Mueller and team to investigate “links” and “coordination” between the Trump Campaign and Russian interests. “Like collusion, ‘coordination’ does not have a settled definition in federal criminal law.” According to the Special Counsel, coordination required tacit or express agreement between the  Russian government and the Trump campaign.  (Report, “Introduction to Volume I,” p.2. Mueller and his team were looking to see if any joint criminal activity would constitue conspiracy under federal law. And as the Report points out, simply because two entities are working towards the same end, and have conversations about it does not in and of itself mean they are engaged in a conspiracy.

This is imporant to remember: this was a criminal investigation. The rules of any criminal investigation apply. This does not mean that there was not coordination. It means that the Office of the Special Counsel did not find enough admissible evidence to warrant charging the Trump campaign with conspiracy.

In reaching the charging decisions about the interactions, the Office determined whether  someone had committed a crime that should be prosecuted under the Principles of Federal Prosecution, found in DOJ’s Justice Manual. (Report, p. 8-9, Executive Summary.) The standards found in the Justice Manual are: does the conduct constitute a federal crime; is there admissible evidence that would allow a prosecutor to obtain and sustain a conviction; and would the prosecution would serve substantial federal interest not served by other means. Justice Manual, 9-27.000 et seq.

[W]hile the investigation identified numerous links between individuals with ties to the Russian government and individuals associated with the Trump Campaign, the evidence was not sufficient to support criminal charges. 

Report, Executive Summary, p.9

This is not to say that no criminal activities occurred. The investigation did not always yield admissible evidence, or a complete picture of activities undertaken by subjects of investigation. Report, “Executive Summary,” p.10. Some individuals took the Fifth, and the team did not feel they were appropriate candidates for  immunity. ibid. Some evidence was subject to legal privilege or were held by members of the media. Some materials were deleted from electronic devices. The Office couldn’t corroborate witness statements with contemporaneous  communications. ibid.

The Office of the Special Counsel recognized the limits of their investigation:

Accordingly, while this report embodies factual and legal determinations that the Office believes to be accurate and complete to the greatest extent possible, given these identified gaps, the Office cannot rule out the possibility that the unavailable information would shed additionallight on (or cast in a new light) the events described in the report.

Report, Executive Summary, p. 10

It should also be noted that Mueller was charged with investigating matters arising from the investigation, hence the prosecutions of Michael Cohen, Paul Manafort, et al. As I go along, I will be touching on these issues more, but I thought it useful to have a framework for understanding.

I would encourage everyone interested in this pivotal issue to read the Mueller Report’s Introduction and Executive Summaries. They are only about ten pages in length, and do a good of outlining the results of the inquiry.

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