The agony and the ecstasy of the Mueller report

Over 450 long-awaited pages, the Special Counsel says he can neither indict nor exonerate the president.

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The Mueller report is finally in the public eye – or at least, most of it is – and it has turned Twitter into a parody of Talmudic scholarship. Journalists, academics, trolls and everyone else spent the day trading references to it, chapter and verse. At just under 450 pages, the report is biblical in scale and ambiguity; it allows for broad interpretation.

Trump – via the helpful narrative-shaping “prebuttal” of his attorney-general, Bill Barr – found plenty in it to justify crowing “Game Over.” Barr, playing flack, gave a press conference an-hour-and-a-half before he made the report public, restating his view that the report exonerated the president. Adding to his four-page written summary from last week, he said the report had found “no evidence of collusion” between Trump and Russia during the campaign.

Barr reiterated that while Mueller declined to make a prosecutorial recommendation either way on the question of obstruction of justice, he had no such compunction: his Department of Justice didn’t believe the evidence presented reached a prosecutable level. Rod Rosenstein, the deputy attorney-general who initiated the report two years ago, stood behind Barr as he spoke, wide-eyed, looking frozen in terror.

Barr had a 90-minute advantage in the battle for control of the narrative, but when the report finally dropped it was soon clear there was plenty of material for theologians looking for other interpretations. Sure, there’s 2:7: “Unlike cases in which the subject engages in obstruction of justice to cover up a crime, the evidence we obtained did not establish that the President was involved in an underlying crime related to Russian election interference.”

But, the Maimonides’ of Twitter cried, what about 2:157: “But proof of such a crime is not an element of an obstruction offense … obstruction of a criminal investigation is punishable even if ... the investigation ultimately reveals no underlying crime”. This kind of thing went on all day.

At times, especially reading the report’s difficult second volume – the part dealing with possible obstruction of justice – it felt like Mueller had decided, rather than make a decision, just to share his whole internal debate. The contrast between Mueller’s dense prose and Trump’s bombastic vacuity caused cognitive dissonance. The planets were colliding: Mueller’s black-and-white world of laws and truth plummeted toward Trump’s grey, murky world of lies. The two could not coexist.

Could Mueller really have not realised how this gargantuan document would be summarised, warped beyond recognition, by Trumpworld? The hopeful, at least, found comfort in the hints at other, as yet unknown investigations. Was that the plan? Or is Mueller, like everyone else, only human; fallible, and prone to missing the obvious?

“The president’s efforts to influence the investigation were mostly unsuccessful,” Mueller notes, “but that is largely because the persons who surrounded the president declined to carry out orders or accede to his requests.” That’s wild!

Repeatedly, Mueller describes how Trump’s attempts to obstruct justice were frustrated by his staff declining to enact his orders. Chris Christie, for example, declined to pass on a message to then-FBI director James Comey from Trump pressuring him to stop investigating national security adviser Mike Flynn. Later, Trump asked Christie if he should fire Mueller, and Christie advised against it.

Trump didn’t take Christie’s advice; in June 2017, he called White House counsel Don McGahn and ordered him to order Rosenstein to fire the special counsel. McGahn, Mueller reports, was “perturbed by the call” and “did not carry out the instruction.” He prepared to resign, telling then-chief of staff Reince Priebus that the president was asking him to do “crazy shit”.

If that sounds like obstruction of justice to you, it does to me too. But according to Mueller’s interpretation, he doesn’t have the legal standing to make a call one way or another, whatever the evidence, against a sitting president. Having determined not to make a “traditional prosecutorial judgment,” the question of guilt becomes moot. But he hints at the conclusion he might have reached in different circumstances: “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,” he writes. In short: Trump didn’t not do it.

He also concludes “that Congress can validly make obstruction-of-justice statutes applicable to corruptly motivated official acts of the president without impermissibly undermining his Article II functions.” Some inferred from this and similar references that the report is, effectively, a call to action from the legislature, even for impeachment – but if it is, it is never spelled out.

Mueller wrestles with the obstruction of justice question. “Three features of this case render it atypical compared to … heartland obstruction-of-justice prosecutions,” he writes. “First, the conduct involved action by the president.” That meant that, while some of Trump’s conduct “raises garden-variety obstruction-of-justice issues,” others have graver constitutional ramifications. “A factual analysis of that conduct would have to take into account that the president’s acts were facially lawful,” he writes. In short: in some cases, if the president does it, it’s legal.

The report is full of juicy details. When Mueller was first appointed, he notes, Trump – informed by then-attorney general Jeff Sessions – “slumped back in his chair and said, ‘Oh my god. This is terrible. This is the end of my presidency. I’m fucked.’” Then, Trump “lambasted” Sessions, saying “How could you let this happen, Jeff?” and informing Sessions this was “the worst thing that ever happened to me.”

In another detail that would be jaw-dropping in any more normal era, Mueller writes that press secretary Sarah Huckabee Sanders “told the press after Comey’s termination that the White House had heard from ‘countless’ FBI agents who had lost confidence in Comey.” But, Mueller continues, “the evidence does not support those claims … and Sanders acknowledged to investigators that her comments were not founded on anything.” The press secretary admitting under oath that she made things up at the White House podium barely registers a blip on the outrage scale now.

At times, the report reads as if written in abject disbelief. “Many of the president’s acts directed at witnesses, including discouragement of cooperation with the government and suggestions of possible future pardons, took place in public view. That circumstance is unusual, but no principle of law excludes public acts from the reach of the obstruction laws,” Mueller writes. But then, in declining to prosecute, he appears to have found a principle of law that does exactly that.

Mueller’s decision to not make a decision still seems far from the “total exoneration,” Trump is claiming. In fact, the totality of the document is incredibly damning. In the 200 or so pages about obstruction of justice, there is barely a pamphlet of exculpatory evidence. And what there is isn’t great: Mueller muses, for example, that there might be a chance “the president believed … he had never told McGahn to have Rosenstein remove the Special Counsel.”

Innocence by way of amnesia. It reads almost like a parable: the man who never forgets and only tells the truth, and the man who never remembers and deals in lies. No wonder the whole thing felt biblical.

Nicky Woolf is the editor of New Statesman America. He has formerly written for the Guardian and the New Statesman. He tweets @NickyWoolf.