From the Senate floor on May 7, Majority Leader Mitch McConnell (R-KY) told his colleagues to pack up their Trump-Russia investigation bags and go home: “The special counsel’s finding is clear: case closed.”
Robert Mueller disagrees. For starters, he didn’t exonerate Trump. But he concluded that, under Justice Department policy, indicting Trump wasn’t an option either. Rather, Mueller deferred to Congress in dealing with the misconduct of a sitting president — and examples of such misconduct pervade the report.
Mueller also identified five obstacles that keep the case against Trump open because they hindered the investigation. Those obstacles may have prevented the development of criminal cases beyond the 37 Trump-Russia players he charged. In Mueller’s own words, here they are:
#1: Some witnesses, including Trump, refused to talk
“Some individuals invoked their Fifth Amendment right against compelled self-incrimination….” (Vol. I, p. 10)
“We also sought a voluntary interview with the President. After more than a year of discussion, the President declined to be interviewed.” (Vol. II, p. 13)
“[Donald] Trump Jr.…declined to be voluntarily interviewed by the Office….” (Vol. I, p. 117)
#2: Some evidence was beyond Mueller’s reach:
“[T]he Office [of Special Counsel] faced practical limits on its ability to access relevant evidence as well — numerous witnesses and subjects lived abroad, and documents were held outside the United States.” (Vol. I, p. 10)
#3: Some witnesses lied to investigators:
“[T]he investigation established that several individuals affiliated with the Trump Campaign lied to the Office, and to Congress, about their interactions with Russian-affiliated individuals and related matters. Those lies materially impaired the investigation of Russian election interference. The Office charged some of those lies as violations of the federal false-statements statute.” (Vol. I, p. 9; emphasis supplied)
“Even when individuals testified or agreed to be interviewed, they sometimes provided information that was false or incomplete….” (Vol. I. p. 10; emphasis supplied)
#4: Some witnesses destroyed evidence:
“Further, the Office learned that some of the individuals we interviewed or whose conduct we investigated — including some associated with the Trump Campaign — deleted relevant communicationsor communicatedduring the relevant period using applications that feature encryption or that do not provide for long-term retention of data or communications records. In such cases, the Office was not able to corroborate witness statements through comparison to contemporaneous communications or fully question witnesses about statements that appeared inconsistent with other known facts.” (Vol. I, p. 10; emphasis supplied)
#5: Some witnesses obstructed justice and got away with it:
Mueller applied a criminal standard —“proof beyond a reasonable doubt” — in deciding not to charge members of the Trump campaign with conspiracy or obstruction. But along the way, many of them frustrated his search for the truth:
“[A]lthough the evidence of contacts between Campaign officials and Russia-affiliated individuals may not have been sufficient to establish or sustain criminal charges, several US persons connected to the Campaign made false statements about those contacts and took other steps to obstruct the Office’s investigation and those of Congress.” [Vol. I, p. 180; emphasis supplied]
Why Lie and Obstruct? Mueller Suggested Answers
“As described in Volume I, the evidence uncovered in the investigation did notestablishthat the President or those close to him were involved in the charged Russian computer-hacking or active-measure conspiracies, or that the President otherwise had an unlawful relationship with any Russian official. But 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.” (Vol. II, p. 76; emphasis supplied)
The Counterintelligence Probe
The released report does not include the results of Mueller’s counterintelligence probe, which involves the nation’s security. This could include details of Trump’s financial dealings, as well as information about Putin’s potential leverage over Trump and his associates. As Mueller developed that evidence, it went to the FBI.
But that’s not all: “[T]he FBI also embedded personnel at the Office who did not work on the Special Counsel’s investigation, but whose purpose was to review the results of the investigation and to send — in writing — summaries of foreign intelligence and counterintelligence information to FBIHQ and FBI Field Offices. Those communications and other correspondence between the Office and the FBI contain information derived from the investigation, not all of which is contained in this Volume.” (Vol. I, p. 13)
One More Thing
Mueller’s report also lists 12 redacted criminal matters that he referred to other federal prosecutors. Congress and the public don’t know anything about their subject matter or status.
The special counsel’s role in the investigation may be concluding, but the Trump-Russia case isn’t closed. Congress and the FBI have the task of completing the job that Mueller began. As Yogi Berra said: “It ain’t over till it’s over.”
This is the fifth in a series of posts by Steven J. Harper, creator and curator of the Trump-Russia Timeline, on the Mueller Report. The first four installments are available here, here, here, and here.
Steven J. Harper is the creator and curator of the Trump-Russia Timeline appearing at Dan Rather’s News & Guts and at Just Security. He is an attorney, adjunct professor at Northwestern University Law School, and author of four books, including Crossing Hoffa — A Teamster’s Story (Chicago Tribune “Best Book of the Year”) and The Lawyer Bubble — A Profession in Crisis. He blogs at The Belly of the Beast. Follow him on Twitter (@StevenJHarper1).