Introduction to the Mueller Report
by Alan Dershowitz
Felix Frankfurter Professor of Law Emeritus
Harvard Law School
The long-awaited Mueller Report is finally public—or at least the redacted version is. The redactions are minimal and required by the law. They do not include any material redacted on the basis of any claim of executive privilege, because the president waived executive privilege with regard to the Mueller Report. There is, therefore, enough in the published report to produce several important headlines.
The first obvious headline, as summarized by Attorney General William Barr, is that the Mueller investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 US presidential election. The body of the report presents no evidence of any criminal behavior by President Trump or his campaign with regard to Russia. In a press conference prior to releasing the report to the public, the attorney general confirmed that Russian efforts to influence the election were not coordinated with “any Americans,” or anyone associated with the Trump campaign. Nor were members of the Trump campaign involved in the hacking of information by Russian authorities or any illegal use of such information by WikiLeaks and others. The “bottom line,” according to Barr, is that the Trump campaign did not collude with Russian officials.
The report is a complete exoneration and should put that allegation to rest, both as a legal and factual matter.
The second, more equivocal, headline is that President Trump will not be charged with obstruction of justice, though he was not exonerated. Here is what the attorney general wrote in his March 24 letter to Congress:
After making a “thorough factual investigation” into these matters, the Special Counsel considered whether to evaluate the conduct under Department standards governing prosecution and declination decisions but ultimately determined not to make a traditional prosecutorial judgment. The Special Counsel therefore did not draw a conclusion—one way or the other—as to whether the examined conduct constituted obstruction. Instead, for each of the relevant actions investigated, the report sets out evidence on both sides of the question and leaves unresolved what the Special Counsel views as “difficult issues” of law and fact concerning whether the President’s actions and intent could be viewed as obstruction. The Special Counsel states that “while this report does not conclude that the President committed a crime it also does not exonerate him.”
The attorney general did, however, say that:
. . . the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense. Our determination was made without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.
Because the attorney general is the ultimate decision maker when it comes to whether or not to prosecute, this statement also constitutes a complete legal exoneration, albeit with dissenting opinions.
Among the many questions raised by the report’s non-exoneration on obstruction charges is one in particular: Why couldn’t Special Counsel Robert Mueller, a former Marine, make up his mind about whether President Trump is or is not guilty of obstruction of justice?
The job of a prosecutor is to make decisions. To charge or not to charge. It is not to write law review essays that lay out “on one hand, on the other hand” arguments. Yet the report says that Mueller reached no decision as to whether Trump engaged in obstruction of justice.
In law, as in life, there are close cases, about which reasonable people can disagree. But the job of the prosecutor is to decide close cases.
Mueller seems to have conducted a generally fair prosecutorial investigation of the facts. But he failed to come to a clear decision about obstruction of justice. That was his job and he should have done it.
The third headline is that there are no sealed indictments and that there will be no more indictments directly emanating from the Mueller investigation. This does not mean that other prosecutors, most particularly those in the Southern District of New York, may not seek further indictments; the announcement of former White House counsel Greg Craig’s indictment came after the Mueller Report was completed and presented to the attorney general. The report says that Mueller has referred fourteen cases to other prosecutors for investigation. But the close of the Mueller investigation does mean that it produced no indictments of Americans directly related to its primary mandate—namely, to prosecute Americans who may have criminally conspired with Russia to influence the 2016 election.
The Mueller indictments, convictions, and guilty pleas fall primarily into three categories; the first is ordinary financial crimes committed by people in Trump’s political sphere before he became president. These charges were designed to pressure Trump associates to provide evidence or information against the real target in the Oval Office. As Judge Ellis, who presided over the first Manafort trial, correctly observed to prosecutors: “You don’t really care about Mr. Manafort’s bank fraud—what you really care about is what information Mr. Manafort could give you that would reflect on Mr. Trump or lead to his prosecution or impeachment.” Judge Ellis also pointed out the dangers of this tactic: “This vernacular to ‘sing’ is what prosecutors use. What you’ve got to be careful of is that they may not only sing, they may compose.” This tactic does not seem to have worked, either because the indicted parties didn’t sing or because they sang off key.
The second category of indictments may be describes as process crimes such as perjury or false statements. These are serious crimes warranting prosecution, but they occurred as the result of the investigatory process itself, not as the result of activities undertaken during the election to influence its outcome. Complex and lengthy investigations often produce indictments for process crimes, but the success of a special counsel is best measured by successful prosecution of substantive crimes that were central to its mandate—in this case, crimes involving unlawfully conspiring with Russian operatives to influence the outcome of the election.
The third set of indictments are those against Russian individuals and companies accused of trying to influence the election. No Trump associates or Americans were directly implicated in the alleged crimes committed by these Russians. Moreover, because these non-Americans will never be brought to trial, the allegations set out in the indictment will never be tested by an adversarial trial or guilty plea. Hence, they are “show indictments” only.
No sufficient evidence was found to indict President Trump for unlawful conspiracy with Russia, obstruction of justice, or any other impeachable “high crimes and misdemeanors.” Despite these conclusions, the public release of the report creates the same effect as what James Comey, then director of the FBI, improperly did in the Hillary Clinton case of 2016: announce the decision not to indict and then add a statement that she had been “extremely careless” in using a private email server. Both the release of Mueller’s report and Comey’s statement go beyond their duty to simply report that there would be no further indictment; instead, they lay out evidence that was insufficient to indict in a court of law but may have a substantial negative impact in the court of public opinion.
In reading this report, it is important to remember that the evidence has not been tested by the adversarial process of cross-examination, confrontation, and presentation of exculpatory evidence. That was equally true when Comey expressed his untested conclusion that Hillary Clinton was guilty of extreme carelessness, but not criminal conduct. There were partisan responses to that improper announcement. Many Republicans disputed Comey’s decision not to indict Clinton, accusing him of downplaying the seriousness of what she had done with her private server. Many Democrats were critical of Comey’s willingness to go beyond simply announcing that Clinton would not be indicted and instead expressing views regarding her noncriminal carelessness that could have had, and probably did have, serious political consequences. Almost nobody was happy with what Comey had done and said.
The same may be true of the Mueller Report. Many Democrats will be upset at Mueller for not indicting Trump and/or members of his family. Many Republicans will be upset at Mueller for going beyond announcing no further indictments and presenting a negative narrative that will have political implications. Democrats will focus on the negative information in the report, while Republicans will emphasize the absence of additional indictments. The report itself is a political Rorschach test, subject to multiple interpretations, depending on the preexisting biases of the reader.
Before we get into the controversial aspects of the report itself, it is important to provide some context.
B. Context:
Should There Have Been a Mueller Report?
This is a report that, according to long-standing Department of Justice traditions, should never have been written. There are two reasons why. First, a special counsel should not have been appointed. It is far better, and far more consistent with legal and constitutional norms, for criminal investigations to be conducted by ordinary prosecutors—in this case, US attorneys. Although former attorney general Jeff Sessions may have been recused, the US attorneys and their career line prosecutors were not. This is evident from the fact that several US attorney’s offices have been conducting, and will continue to conduct, investigations related to the Mueller probe.
Moreover, the government official who made the decision to appoint a special counsel and who was charged with overseeing his investigation, Deputy Attorney General Rod Rosenstein, was more deeply conflicted and subject to recusal than even the attorney general, and certainly more than US attorneys or line prosecutors may have been.
Among the most significant acts investigated by Robert Mueller, under the supervision of Rosenstein, was President Trump’s decision to fire James Comey. Did the firing of Comey constitute the felony of obstruction justice? Was it part of a larger pattern of obstruction? These are complex and nuanced questions with serious constitutional implications. They require delicately balancing countervailing considerations of law, policy, and precedent. They also require complete objectivity—both conscious and unconscious—without the thumb of personal or political considerations being placed on the scales of justice. Not only must the investigators have no personal stake in the outcome of the investigation, but the official responsible for overseeing the investigation, in this case Rod Rosenstein, must be conflict-free.
It is difficult, however to imagine a more glaring conflict than the one surrounding Rosenstein. He was not only the key witness in any investigation involving the firing of Comey, but he was a potential defendant if any obstruction-of-justice case was made against President Trump. Indeed, because, under Department of Justice rulings, a sitting president cannot be tried for crimes, Rosenstein might have been the only defendant brought to trial if the special counsel concluded that the firing of Comey was criminal. It was Rosenstein who wrote the memorandum justifying—even encouraging—the firing.
At the very least, Rosenstein was the most important witness to the decision to fire Comey. How could he possibly be objective? His own reputation, and possibly more, are at stake. It would be in his interest to have the responsibility for the firing shifted away from him and toward the president. Whether that influenced his actions may or may not be the case, but that is not the issue; the legal and ethical issue is whether the key witness and potential defendant who is overseeing the investigator is conflict-free and can be trusted to play the important role Rosenstein was assigned to play until he recently announced his decision to leave the position. Was there an appearance of bias? A reality of bias? Or was there the complete objectivity, and the appearance of objectivity, necessary to the important role Rosenstein was required to play?
The answer is clear: Rosenstein should have been recused from playing any role in the investigation of President Trump that involved the firing of Comey. He should not have made the decision to appoint a special counsel. Nor should he have played any role in overseeing any such investigation.
That is the first reason there should never have been a Mueller investigation or a Mueller Report. There should have been investigations of all the possible crimes growing out of the 2016 election by the appropriate US attorney’s office, and these full-time prosecutors should have made the decisions regarding who, if anyone, to indict and prosecute.
This brings me to the second reason there should never have been a Mueller Report: When ordinary prosecutors decide whether to indict or not to indict, they do not issue reports. If the decision is not to indict, they simply announce—if they say anything at all—that they have decided not to indict. They do not do what Comey did in the Clinton case. Comey was widely condemned for going beyond what prosecutors traditionally say when a decision has been made not to prosecute. Why, then, should Mueller’s report about President Trump’s alleged misconduct be released to the public if he is not going to recommend charging the president or those close to him with criminal conduct? How is this different from what Comey wrongly did?
The justification offered is that Mueller is not an ordinary prosecutor; he is a special counsel. And under Department of Justice rules, a special counsel must file a report with the attorney general. But the regulations do not require that the attorney general make the report public. When ordinary prosecutors decide not to indict a prominent and controversial person, they will sometimes write a confidential report to a supervisor explaining or justifying that decision. This is what Comey should have done. It would have been perfectly appropriate for Comey to include in such a confidential report a statement about Hillary Clinton’s carelessness. The criticism of Comey focused on what he said in public, because ordinary prosecutors are not authorized to express public opinions about the conduct of a person who was the subject of an investigation that resulted in a decision not to prosecute. The same should have been true for the Mueller investigation.
Another justification is that the Mueller Report involves the president, who, according to Department of Justice policy, cannot be prosecuted while in office. So the only permissible consequence of criminal conduct by the president is public disclosure in a report. There are several problems with this alleged justification. First, it would only be applicable if the investigation found criminal conduct that would be prosecuted if a sitting president could be indicted. But Attorney General Barr explicitly stated that his conclusion that there was “not sufficient” evidence of crimes was “not based on the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.”
Second, a president can be indicted and prosecuted—after he leaves office. Third, a sitting president can be impeached and removed for certain criminal conduct, but it is the role of Congress, not prosecutors, to investigate possible impeachable crimes. These arguments do not justify departing from the salutary tradition under which prosecutors do not present to the public negative conclusions or evidence that did not result in an indictment.
Among the reasons for this tradition is the realization that prosecutorial decisions are, by their nature, one-sided. The role of a prosecutor in deciding whether to indict, is to determine whether there is sufficient admissible evidence of guilt to warrant a trial. The standard is “probable cause.” Prosecutors are not required to factor into that decision possible exculpatory evidence or defenses (though good ones sometimes do). Because the decision to indict or not indict is one-sided—the defense is not necessarily given an opportunity to make its case—it is unfair for prosecutors who have decided not to indict to go beyond announcing that decision. If the decision is to indict, then the defendant will have his or her opportunity—at least in theory, since over 90 percent of indictments result in guilty pleas—to contest the charges and present his or her case to a jury. The indictment itself is not evidence; it is merely a charging instrument, much like a complaint in a civil case, but with the imprimatur of the government.
So the second reason why there should never have been a public Mueller Report is that prosecutors—and the special counsel is a prosecutor, with powers and limitations of an ordinary prosecutor—should not make public statements (or have their statements made public) about persons they have investigated and decided not to prosecute. Mueller’s assessment should have been kept within the Department of Justice.
But the public understandably demands accountability from special counsel. Citizens want to know how their money was spent in the Mueller investigation, and so the Mueller has been made public. It has been my view that in light of the inherently one-sided nature of prosecutorial investigations, the Mueller Report, if it was going to be released to the public, should have been released simultaneously with a counter report by the Trump legal team. But the attorney general has decided to release Mueller’s report first. There will be a written formal response by the Trump legal team; fair minded citizens should withhold final judgment until they have read both the report and the response.
C. Who Should Have Concluded
the Investigation
There are compelling reasons why an investigation should have been conducted and a report issued regarding efforts by Russia to influence the 2016 election. The American public should know the truth of what happened in order to prevent recurrences. The problem, and it is a serious one, is that the wrong institution conducted the investigation and compiled the report. Prosecutors do not conduct the kind of investigation that was required, and they should not be issuing reports designed to prevent recurrences. Prosecutors are supposed to investigate only to determine whether prosecutorial crimes occurred. If they did, there should be indictments. If they did not, there should be an announcement to that effect and then silence. The proper institution to conduct the kind of investigation and issue the kind of report that was warranted in this case was an expert, nonpartisan, independent commission, such as the one established following the terrorist attacks of 9/11. I called for the establishment of such a commission, instead of the appointment of a special counsel, from day one of the Russia investigation.
A commission to investigate Russian influence in the 2016 election could have had open hearings (with limited exceptions for highly classified material) and would have heard all sides of the issue.
Its goal would have been to inform, not prosecute. Of course, if the evidence it gathered showed criminal behavior, that evidence would be turned over to existing law enforcement agencies. If it showed impeachable conduct, such evidence could be given to Congress. The resulting report would not be one-sided, as prosecutorial reports inevitably are. Moreover, prosecutorial investigations, such as those conducted by Mueller, are behind closed doors and in secret grand juries. The public does not see or hear the witnesses and cannot judge their credibility, as they could if there were open hearings.
But in our age of hyper-partisan division, nobody seems to want the kind of objective, unbiased truth that an expert commission is tasked to find. Partisans want “Democratic truths” and “Republican truths,” “prosecutorial truths” and “defense truths.” That is why an expert commission was not established, and why an expert report based on all the evidence, was not issued. Instead, we have a prosecutorial report, based on one-sided evidence, not subject to adversarial testing or public scrutiny. Then we have a rebuttal report, presenting its side of the case. So read both with caution, skepticism, and an open mind.
D. The Report: Obstruction of Justice
The strangest part of the report—unprecedented to my knowledge—is the dual and dueling presentations regarding obstruction of justice. One group within the Mueller team apparently concluded that President Trump did not obstruct justice. A second group apparently concluded, based on essentially the same evidence, that the president did obstruct justice. Robert Mueller himself has apparently concluded that he won’t conclude or side with either group, leaving it up to the attorney general and ultimately the American people to decide which group gets the better of the argument. Only law professors will be happy with this non-resolution, because we can assign both analyses to our students and have them debate the issues. But the administration of justice is not a classroom or a moot courtroom. I am willing, however, to play law professor—a role I played for fifty years—and grade both sides of the arguments that form the basis of the report on obstruction of justice.
To understand my grades, it’s important to understand an important principle of criminal law that is being widely misunderstood by commentators: Every crime, including obstruction of justice, requires both an actus reus (a criminal act) and a mens rea (an unlawful—and in the case of obstruction, a corrupt—intent). Before a prosecutor gets to the intent, he or she must first establish an illegal act.
The ancient principle of nulla poena sine lege stands for the proposition that no one can be punished for doing an act that is not prohibited by law. This principle has been characterized as “one of the most widely held value judgements in the history of human thought.”1 Under that rule, prosecutors don’t get to charge people with crimes based only on their state of mind—thought crimes. There must first be proof of an illegal act.
Applying that principle to obstruction of justice in general, and to President Trump’s firing of James Comey in particular, leads to the question of whether a president exercising his constitutional authority to fire a member of the executive branch can ever constitute the actus reus of a crime, without regard to the mens rea. In other words, if the president was authorized to fire Comey—and he clearly was—does his motive or intention in doing so matter?
That question was presented to the special prosecutor in the investigation of President George H. W. Bush. President Bush exercised his constitutional authority to pardon former secretary of defense Casper Weinberger and others who were about to stand trial for their roles in the Iran-Contra scandal. Special Counsel Lawrence Walsh condemned their pardons as part of the “cover-up” and “deception and obstruction.” But he did not charge Bush with obstruction of justice, presumably because he believed that the act of pardoning cannot be a criminal act, regardless of the intent, because the act of pardoning is authorized by the Constitution.
The same is true of the act of firing Comey, which the president had the authority to do, as Comey himself has acknowledged. But here, Mueller’s report concludes that the firing of Comey presented a close question. That is because the report interpreted constitutional law incorrectly.
Mueller’s report begins its analysis of obstruction with a section entitled, “Legal Framework of Obstruction of Justice.” It states that the first element of obstruction is “an obstructive act.” That is wrong. The obstructive act cannot be an act by the president that is constitutionally authorized. Such an interpretation would create a conflict between the Constitution and any obstruction law that was interpreted to include constitutionally-protected conduct by the president.
The report cites a handful of lower-court cases, all wrongly decided in my view, for the proposition that “an improper motive can render an actor’s conduct criminal even when the conduct would otherwise be lawful and within the actor’s authority.” (Disclaimer: I litigated one of those cases.) This wrongheaded conclusion contradicts hundreds of years of precedents requiring that the act itself must be unlawful—the concept of actus rea discussed above—and that an improper motive cannot convert a lawful act into a crime. Even if that were not true for an ordinary citizen, it is certainly true for the president of the United States, who has constitutional authority under Article II.
It would damage our system of checks and balances and separation of powers if prosecutors or Congress could turn a president’s improper motives into a crime. Presidents are motived by a range of factors: reelection, financial gain after leaving office, potential book contracts, paid speaking engagements, a desire to do favors for friends, a wish to hurt enemies. The list goes on and on. More importantly, who should have the power to probe a president’s motives if the act itself is lawful? Going back to President George H.W. Bush, his pardoning of Casper Weinberger and others was clearly improperly motivated. The special prosecutor so concluded. And yet, nobody tried to turn the “improper motive” into a crime because the act of pardoning itself was constitutionally protected.
The Mueller Report correctly concludes that there are no Supreme Court decisions or even Department of Justice positions that directly resolve the issue of whether “the president’s exercises of his constitutional authority to terminate an FBI director and to close investigations” can constitutionally constitute an obstruction of justice. The report also acknowledges the principle that “general statutes must be read as not applying to the president if they do not expressly apply where application would arguably limit the president’s constitutional role.” And it correctly concludes that “the obstruction statutes do not disqualify the president from acting in a case simply because he has a personal interest in it or because his own conduct may be at issue.” As the Department of Justice has made clear, “a claim of conflict of interest standing alone cannot deprive the president of the ability to fulfill his constitutional function.”
Those three principles should end the matter. In the absence of a contrary precedent, the general obstruction of justice statute should not be deemed applicable to the commission of an act by a president authorized by the constitution, even if it was self-serving. This conclusion applies not only to the firing of Comey, but to all actions taken by President Trump pursuant to constitutional authority under Article II.
Does this mean that a president can never be charged with obstruction of justice? Of course not. President Nixon could properly have been charged with obstruction of justice because he went well beyond his constitutional authority by telling his subordinates to lie to the FBI, by destroying evidence, and by authorizing the payment of hush money to potential witnesses in a criminal case. The Mueller Report seems to agree, saying that “Congress can permissibly criminalize certain obstructive conduct by the president, such as suborning perjury, intimidating witnesses, or fabricating evidence. . . .” But that is not what President Trump has been accused of by the Mueller Report. What he is accused of—especially in firing Comey—is far more analogous to the pardoning decision made by President Bush. The Bush case demonstrates that if a president only engaged in conduct authorized by Article II—such as pardoning or firing—then he cannot be charged under the general obstruction of justice statute. That is the better view of the law. That is the view taken by Attorney General Barr and, in my opinion, the view that all civil libertarians should support. But that is not the view taken by the Mueller Report.
It is shocking that the Mueller Report never discusses the difference between the Nixon and Bush cases. That difference is central to a proper application of the obstruction of justice statute to presidential decisions. It draws a clear line between presidential acts that are within the authority of Article II, such as pardoning and firing, and presidential acts that fall outside Article II authority, such as bribing witnesses, suborning perjury, or destroying evidence.
* * *
So, my grade for the Mueller Report’s legal analysis of obstruction of justice is a C+ (with grade inflation). My grade for factual analysis is a B+. My overall grade is a B-.
Now it remains to be seen how this flawed report will be used and misused for partisan purposes. Already, some are calling it a “road map” for impeachment or further partisan congressional investigations. That is precisely why it is so dangerous to civil liberties and the rule of law to release reports by special counsel detailing noncriminal wrongdoing by subjects of a one-sided investigation who were not charged.
The response to the Mueller Report by the Trump legal team will soon be released and may lend some balance. So, read them side by side and decide for yourself.
A personal word before I end this introduction. I have been commenting on TV, in books, and in op-eds from day one of this investigation. As a liberal Democrat who voted for Hillary Clinton in 2016 and for Democrats in the 2018 midterms, and as a civil libertarian who cares deeply about the fair application of the rule of law to all, I have tried to apply neutral, nonpartisan principles to my analysis of the legal and civil liberties issues surrounding this investigation. My predictions—most importantly that Mueller would find no crimes but that his report would be extremely critical of the president and his associates—have proved true, whereas the predictions of many other commentators and pundits have proved false. This is not because I’m any smarter than others, but because I have refused to substitute partisan wishful thinking for neutral analysis of the law and facts. We are moving toward a dangerous world in which neutrality is condemned and hyper-partisanship is praised. I hope this introduction passes what I call “the shoe on the other foot test,” meaning that readers believe that I would have written essentially the same introduction if a special counsel had published a similar report about a President Hillary Clinton. I leave it to readers of the Mueller Report to decide whether it passes the shoe on the other foot test.
1 Justice Antonin Scalia, Rogers v. Tennessee, citing J. Hall, General Principles of Criminal Law 59 (2d ed. 1960.)