How selective editing works. The Mueller summary on Obstruction of Justice.

I just wanted to make it super easy for everyone to understand the nature of the conclusions with respect to Obstruction of Justice (Volume II) from the Mueller report, since Twitter-length soundbites aren’t sufficiently nuanced and can be misrepresented (ahem….Barr).

The full introduction to Volume II is extracted below without footnotes.

Here is the soundbite that has been the focal point of ‘No Obstruction’.

this report does not conclude that the President committed a crime

Of course simply looking at the full quote, you get a different, albeit still somewhat murky picture.

Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

But the meat of ALL of this is in the beginning of the introduction. It states the following:

  • If the evidence clearly indicated no wrong-doing, that would be stated explicitly. (That was not stated). See ‘Fourth’ in the summary below.
  • (This is the critical bit to understand) – REGARDLESS of the evidence to the contrary, in NO SCENARIO would Mueller actually make the determination that a crime was committed, file such charges, or make such a statement. The ‘does not conclude that the President committed a crime’ is not a result of the evidence, but a result of the stated approach.

The second piece is worth unpacking, and the reasoning is made clear in the first few bits of the Introduction. This is not ‘the evidence was inconclusive’. This was ‘we will only reach 1 of 2 stated / public conclusions no matter what’. We will either conclude there was no Obstruction of Justice (that wasn’t the conclusion), or we will serve as a document source for future prosecution after the President leaves office or in support of Congressional action.

Why?

  • See ‘First’ below. Because the Office of Legal Counsel policy precludes it. Again, this isn’t ‘don’t make a prosecutorial judgement unless the evidence is rock solid’. It is a statement that no matter what the evidence produced, the Special Counsel would never declare it a crime.
  • See ‘First’ below. The Special Counsel concludes that, outside of its ability to prosecute said crime (prohibited), the simple act of accusing the President of a crime would place burden on the President and on Congressional oversight which it was unwilling to do.
  • So in the ‘First’ section we have the essence. We learn there is no scenario where the Special Counsel would bring charges or explicitly say that a crime was committed. So the soundbite ‘does not conclude that the President committed a crime’ is simply a statement of the report’s intent. The report would NEVER reach that conclusion. Not ‘we don’t know’ or ‘there isn’t sufficient evidence’. But ‘we will never say it or imply it regardless’.
  • See ‘Second’ below. This section basically says – because of the First section, with respect to the President our job was SOLELY information collection and documentation for future action (if appropriate). Full stop.
  • See ‘Third’ below. Further to the details in the First section, the entire approach was designed to avoid a conclusion whether the President did / did not commit a crime. Because a trial is an accused individual’s opportunity to defend themselves, and because no charges could be brought and therefore no defense mounted, ‘fairness’ concerns required that no conclusion ever be reached.

Translation ‘it is predetermined that this report will not conclude that the President committed a crime.’ Let this sink it. It is not a conclusion of the investigation, it is a conclusion of the approach to the investigation. This is the critical light in which you need to read that soundbite.

So – the only two scenario the report states they will reach are either ‘He didn’t do it’ or ‘Here is the evidence and we could not exonerate him, so our work stops here.’ It was the latter. Now it’s up to Congress (or a prosecutor after he leaves office) to take the information and arrive at next steps.

 

Introduction to Volume II

This report is submitted to the Attorney General pursuant to 28 C.F.R. § 600.8(c), which states that, “[a]t the conclusion of the Special Counsel’s work, he … shall provide the Attorney General a confidential report explaining the prosecution or declination decisions [the Special Counsel] reached.”

Beginning in 2017, the President of the United States took a variety of actions towards the ongoing FBI investigation into Russia’s interference in the 2016 presidential election and related matters that raised questions about whether he had obstructed justice. The Order appointing the Special Counsel gave this Office jurisdiction to investigate matters that arose directly from the FBI’s Russia investigation, including whether the President had obstructed justice in connection with Russia-related investigations. The Special Counsel’s jurisdiction also covered potentially obstructive acts related to the Special Counsel’s investigation itself. This Volume of our report summarizes our obstruction-of-justice investigation of the President.

We first describe the considerations that guided our obstruction-of-justice investigation, and then provide an overview of this Volume:

First, a traditional prosecution or declination decision entails a binary determination to initiate or decline a prosecution, but we determined not to make a traditional prosecutorial judgment. The Office of Legal Counsel (OLC) has issued an opinion finding that “the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions” in violation of the constitutional separation of powers.”1Given the role of the Special Counsel as an attorney in the Department of Justice and the framework of the Special Counsel regulations, see 28 U.S.C. § 51528 C.F.R. § 600.7(a), this Office accepted OLC’s legal conclusion for the purpose of exercising prosecutorial jurisdiction. And apart from OLC’s constitutional view, we recognized that a federal criminal accusation against a sitting President would place burdens on the President’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct.2

Second, while the OLC opinion concludes that a sitting President may not be prosecuted, it recognizes that a criminal investigation during the President’s term is permissible.3 The OLC opinion also recognizes that a President does not have immunity after he leaves office.4 And if individuals other than the President committed an obstruction offense, they may be prosecuted at this time. Given those considerations, the facts known to us, and the strong public interest in safeguarding the integrity of the criminal justice system, we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.

 

Third, we considered whether to evaluate the conduct we investigated under the Justice Manual standards governing prosecution and declination decisions, but we determined not to apply an approach that could potentially result in a judgment that the President committed crimes. The threshold step under the Justice Manual standards is to assess whether a person’s conduct “constitutes a federal offense.” U.S. Dep’t of Justice, Justice Manual § 9-27.220(2018) (Justice Manual). Fairness concerns counseled against potentially reaching that judgment when no charges can be brought. The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor’s judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.5

The concerns about the fairness of such a determination would be heightened in the case of a sitting President, where a federal prosecutor’s accusation of a crime, even in an internal report, could carry consequences that extend beyond the realm of criminal justice. OLC noted similar concerns about sealed indictments. Even if an indictment were sealed during the President’s term, OLC reasoned, “it would be very difficult to preserve [an indictment’s] secrecy,” and if an indictment became public, “[t]he stigma and opprobrium” could imperil the President’s ability to govern.” 6 Although a prosecutor’s internal report would not represent a formal public accusation akin to an indictment, the possibility of the report’s public disclosure and the absence of a neutral adjudicatory forum to review its findings counseled against potentially determining that the person’s conduct constitutes a federal offense.” Justice Manual § 9-27.220.

Fourth, 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. The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

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