What to Make of the Mueller Report: A Primer on Facts, Evidence and Proof
Testimony of Attorney General Barr before the House Judiciary Committee has revived assertions about the “Russia hoax” and statements that “there was no evidence of collusion.” If Lindsay Graham follows through on his threat to have Robert Mueller before the Senate Judiciary Committee, we can expect a lot more of the same. Unfortunately, people who should know better have been using precise legal terms loosely. This article is designed to clarify the thinking of those who want to better understand what claims are being made, and what merit they have.
The OJ Simpson Example
To provide a framework for analysis, let’s consider the OJ Simpson case. We might ask: Did OJ Simpson kill Nicole Simpson? This question is about facts, about reality, about what actually did or did not happen. The answer to that question is: We don’t know. Only one person knows whether OJ Simpson killed his wife, and that would be OJ Simpson himself.
Because facts are often difficult to know for certain, we usually have to settle for something less than the facts. Instead, we rely upon what can be proven based on the evidence. So, we might ask, did OJ Simpson murder Nicole Simpson, or more precisely is OJ Simpson guilty of the murder of Nicole Simpson. The answer to that question is clearly no. OJ is not guilty of the murder of his wife because a jury determined that he was not guilty.
Can we conclude from this that there was “no evidence” that OJ murdered his wife? The answer to this question is again, clearly, no. There was a trial that lasted for nine months, during which the prosecution offered a considerable amount of evidence that OJ had murdered his wife. But that evidence then had to be applied against the relevant standard, which in a criminal case is proof beyond a reasonable doubt, and the jury determined that there was insufficient evidence to establish beyond a reasonable doubt that OJ murdered his wife.
It is worth noting that, despite our loose way of speaking about it, the jury in the OJ Simpson criminal trial did not find that OJ was innocent. Innocence is a question of fact. The jury only found that OJ was not guilty, that is, that there was insufficient evidence of guilt beyond a reasonable doubt. Given our presumption of innocence, OJ could continue to claim that he was innocent.
Consider a third question: Was OJ Simpson liable for the wrongful death of Nicole Simpson? The answer to this question is yes. Nicole’s family was permitted to bring a wrongful death action after the murder trial because the criminal standard of proof for murder and the civil standard of proof for wrongful death differ. Wrongful death only requires proof by a preponderance of the evidence, so the determination of the jury in the criminal trial did not prove that OJ was not liable for wrongful death in killing his wife. In fact, the jury in the civil case found OJ liable, and awarded $33.5 Million Dollars to the estates of Nicole Simpson and Ronald Goldman.
The evidence in the murder trial and the wrongful death trial were largely the same, though clearly less was presented in the one-month civil trial than in the nine-month criminal trial. The difference in result is due, at least in part, to the different standard of proof that applies in criminal cases and civil cases.
But it is important to understand that neither a criminal trial for murder, nor a civil trial for wrongful death establish the fact of what happened. They only deal with what has been proven by the evidence offered in a particular case after applying a particular standard of proof. We need to keep in mind that juries and judges and lawyers can make mistakes. The determination reached at trial may not match what actually happened, but we have concluded as a society that this sort of approximation of reality is the best we can do, and we live with it.
What Happened in the 2016 Election
Applying these principles to the issues raised by the Mueller report we get the following answers to some of the questions that have been bandied about.
Did Donald Trump engage in a criminal conspiracy with agents of Russia to influence the 2016 presidential election? This question asks about a fact, about what actually happened. As in the OJ situation, the correct answer to that question is: We don’t know. The only people who know the answer to that question are the people who were directly involved.
Did Donald Trump or the Trump campaign collude with Russia during the 2016 campaign? This is the looser version of the first question, but the answer is the same: We don’t know. The question is looser because collusion is not a legal term, at least in criminal cases. Because there is no clear legal standard for what collusion is, it is hard to say when there has been, or has not been, collusion.
Is there any evidence of a criminal conspiracy to influence the 2016 election? Just as in the OJ situation, where nine months’ worth of evidence presented at trial resulted in a not guilty verdict, Mueller’s decision not to charge Donald Trump or members of his campaign does not show that there was no evidence to support such charges. Part I of the Mueller report lists item after item of evidence that could be offered at trial to prove conspiracy. To take one example, the fact that someone lied about a crime they are charged with can be evidence of “consciousness of guilt” which can be evidence of guilt (though not sufficient by itself to convict). The Mueller report is full of instances where Donald Trump and members of his campaign lied about contacts with Russians. All of that is evidence. The failure to charge does not establish a complete lack of evidence, or that the investigation was a “hoax” or a “witch hunt.” It just means that the Mueller team felt that it did not have enough evidence to prove each element of the crime beyond a reasonable doubt. So, the answer to this question is: Yes, there is evidence of a criminal conspiracy.
However, the charging decision in Part I of the Mueller Report does mean that the evidence that was gathered will not be actually be tested by the standard of reasonable doubt in a trial. Is it possible that if Mueller went forward and charged Trump, a jury would find beyond a reasonable doubt that he was guilty of a criminal conspiracy? The answer to that question is yes. Mueller’s prediction about what a jury would do could be wrong. So, Mueller’s decision not to charge does not establish what the facts are, nor is it proof of the facts.
What the Mueller Report Says
While questions about what happened during the 2016 election involve things that cannot be known as a matter of fact except by those who participated, what the Mueller Report says is a matter of fact. It is there for anyone to read, at least in its redacted form. So we don’t have the complication of applying evidence to the appropriate legal standard. But still a lot of what is being said about the Mueller Report is mistaken.
Did Mueller find that there was no collusion with Russia?
NO. Mueller specifically said that he was not dealing with anything as vague as “collusion”. His focus was on provable criminal charges of conspiracy.
Did Mueller find that there was no evidence of collusion with Russia?
NO. Once we decide on a definition of collusion, there is abundant evidence of collusion. Most of Part I of the Mueller report, which details the evidence of criminal conspiracy, could also be considered evidence of collusion.
Did Mueller conclude that there was no criminal conspiracy with Russia?
NO. Mueller concluded that the evidence listed in the 209 pages of Part I of the report was not sufficient to prove beyond a reasonable doubt that criminal charges were warranted.
Did Mueller find that there was no obstruction of justice?
NO. Mueller expressly declined to decide whether to bring charges on obstruction of justice. That decision appears to have been motivated in part by a Department of Justice policy of not indicting a sitting president, no matter how strong the evidence of guilt is. So Donald Trump could, in fact, shoot someone on Fifth Avenue in broad daylight, and he would not be charged, at least while he was in office.
Did Mueller find that there was no evidence of obstruction of justice?
NO. In fact, Mueller took pains to preserve evidence of obstruction of justice so that Trump could be charged once he was no longer protected by the DOJ policy.
Does the Mueller Report exonerate Donald Trump?
NO. Attorney General William Barr’s four-page summary expressly says it does not. More importantly, the focus of Mueller’s investigation was quite narrow. It did not get into financial improprieties, money laundering, and other allegations that have been made about the Trump Organization. While Trump may claim to be innocent of any misconduct, the Mueller Report does not establish that.
Is the Mueller Report “case closed” for investigations of Trump, his family, his organization and his campaign, or for impeachment?
YES and NO. While Mitch McConnell’s assertion of “case closed” is true for charges of criminal conspiracy during the 2016 campaign, the report left open other avenues of investigation.
These include areas where the standard of proof is something other than “proof beyond a reasonable doubt.” Just as the families of Nicole Simpson and Ronald Goldman were able to pursue a civil action against OJ after he won the criminal case, claims against Trump that use a different standard of proof were not foreclosed. Impeachment, for example, uses a standard of “high crimes and misdemeanors.” The Senate declined to hold a trial on the impeachment of President Trump, and voted that the evidence presented in the House of Representatives was insufficient to justify impeachment. Here, too, we found senators and pundits confusing “insufficient evidence” and “no evidence” and wrongly arguing that the Mueller report established that there were no grounds for impeachment.
Attorney General Barr closed off some of those issues, at least for now, by making his own determination that evidence of obstruction was insufficient. But all questions are far from answered, and the Mueller Report itself did not suggest that anything other than a criminal conspiracy involving Donald Trump in Russian hacking in 2016 was “case closed.” Whether obstruction of justice could be charged once Donald Trump is no longer president and William Barr is no longer Attorney General remains to be seen. There are areas that were outside the purview of the investigation, e.g., financial crimes, which were tangential to, but outside the scope of, the Mueller investigation that could result in charges in the future.
We can, however, safely predict that if charges are brought, we will hear that they were resolved by the Mueller investigation, and are a “hoax” and a “witch hunt”. You will be in a better position to assess those assertions if you keep in mind the distinctions between facts,evidence and proof, and focus on the appropriate standard of proof.
