Watching the competing Mueller twits during the pair of House committee hearings was a bit surreal, as the sides waged the battle of interpretation, that his testimony either conclusively nailed the coffin on Trump’s presidency or exonerated Trump of all wrongdoing. As Ken White perceptively twitted, the hearings conclusively proved that everyone’s beliefs were proved.
If you care to review the testimony, there is no shortage of passionate pundits in the bigly papers to tell you what to think, what it means and what will or should happen from here. Some of these brilliant folks are lawyers who should know better, but refuse to be humbled by either knowledge or capacity to understand what the Mueller Report said and found. They have a cause that needs their support, and they will use every tool at their disposal to spin this sucker as hard as they can. If they can convince you, convince a nation, they can put this matter to rest.
It’s likely that there will be no more public appearances by Robert Mueller, no more public discussions of what his report, available to be read over and over if that’s how you enjoy spending your leisure time, says. And there should be no doubt that it says exactly what Mueller and his people intended it to say. What it does not say is that either side wants it to say.
It does not exonerate Trump.
It does not prove Trump’s guilt.
What did you expect? But more to the point, Mueller was special counsel to the Department of Justice, a prosecutor. Even if he had arrived at a conclusion of guilt, it would have most constituted an accusation. Prosecutors don’t get to convict people. Prosecutors get to charge people. They conduct investigations and reach their conclusions, but they’re their conclusions, not our conclusions or a jury’s conclusions or, in this case, the Senate’s conclusions.
On the flip side, the notion of exoneration is lost on most people, since there is rarely proof of the negative, that a crime wasn’t committed or that the accused didn’t commit the crime. Our system is structured such that the party with the burden of proof must prevail or the accused, guilty or innocent in some existential sense, walks free.
There was smoke going into the investigation, or there would have been no reason to begin this investigation in the first place. But this wasn’t an episode of Nancy Grace, her southern drawl informing us, “where there’s smoke, there’s fire.” That may be good enough for the homebound and terminally unemployed, but lawyers, and particularly Mueller, need to produce more than an aphorism to make the case.
There was substantial evidence of efforts made by Trump and his administration (and family, to the extent there’s a difference) to thwart and end this investigation into whether there was “collusion,” the silly word that became a mantra to the unduly passionate. But that was a teaser for the public and pundits. Did he do it? Was it a crime? Did the President of the United States, Donald J. Trump, commit the crime of obstruction of justice? Did he, Bob. DID HE?!?
Those who rely on Mueller’s Report, Mueller’s testimony, need to bolster the man, for if he’s lacking, whether in integrity or capacity, then his work product falls short of serving as the weapon of Trump destruction. Others condemn Mueller’s failure to give America the one thing we asked of him, demanded of him: the answer.
Trump proclaimed, naturally, that he was exonerated, but that’s obviously ridiculous. There was no conclusion that he affirmatively did not commit the crime of obstruction. It was theoretically possible that he could be exonerated, that Mueller would find evidence to prove that Trump knew nothing about anything, never sought to stymie the investigation or worse. That didn’t happen. Not by a long shot. Trump was not proven innocent.
But Trump was not proven guilty, either. First, the concept doesn’t apply to Mueller’s Report, which was never more than an investigation by an independent prosecutor. It was never to prove anything, but to ascertain whether there was a factual basis to accuse Trump of a crime, after which it would be up to an appropriate authority to make the determination.
But beyond the limitation of the word “proven,” it would have been a very different report had Mueller found a video of Trump handing Putin a paper bag filled with cash, saying “now fix the election for me, Vlad.” Or an Oval Office tape of Trump telling Don McGahn, “just make sure everybody tells the same lies, Don.”
But that didn’t happen. Instead, there is evidence suggesting rampant impropriety, but not certain enough to call “proof” of the commission of a crime. Surely enough that, had this not been the president, it would be worthy of very serious consideration of an indictment, but this wasn’t some random guy against whom one would throw one’s evidence and see what sticks. It was the president.
Had there been confidence that Trump was a Machiavellian mastermind who knew exactly what he was doing, that might add weight to the evidence of his intentions. But the doubt caused by the belief that he’s an ignoramus, or suffering from senile dementia, or just a reality TV host barely capable of putting together a cogent sentence, undermines the value of the evidence. Mueller was left with the facts he believed could be proven, but with a broad swathe of ambiguity between the conduct emitted a horrible stench and a crime.
Lawyers are used to this. Most of the time, we have no clue whether a crime was committed and who committed it. We have an enormous tolerance for ambiguity because we fight in this gray area of uncertainty. Hard as we argue, we’re well aware that we don’t actually know what really happened. As the burden of proof is on the accuser, as it must be, the question is ultimately resolved by whether the proof of guilt is sufficient to sustain the burden. It may mean a guilty guy walks, but we can live with that as the way our system works.
The public does not possess this tolerance for ambiguity. They see TV shows which tell them who’s guilty. They read newspaper articles which tell them who’s guilty. They expect a conclusive answer, and that’s what they demanded of Mueller. Mueller gave us an answer, that the evidence does not exonerate Trump by a long shot, does not prove innocence, but also does not prove guilt to the extent that it is sufficiently conclusive to take down a president. Lawyers should be able to understand this answer, even if the public cannot.
As the burden of proof is on the accuser, it has fallen short. It doesn’t prove Trump’s innocence, but it doesn’t prove his guilt either. This is the space within which lawyers live, and Mueller gave us a lawyer’s report. As for the political question about impeachment, that has nothing to do with law.