A Quick Thought on ‘No Collusion’: Not!

Everyone paying attention to the Mueller report and the complex and extremely disturbing conditions surrounding its handling by Attorney General Barr, acting as a clear ally of Trump, is still processing the just-released report and the press conference that preceded it. It is clear that Barr was extremely misleading in his comments; that his purpose was political more than legal, and he was happy to parrot rhetoric of “no collusion” verbatim; and that he abruptly left the room the moment reporters began asking him serious questions about his role.

We have known for over three weeks that Volume II of the Report, dealing with the legal crime of “obstruction of justice,” explicitly refused to “exonerate” Trump, and that this volume would clearly contain extensive revelations of Trump conduct that would be damning, conduct that would at least constitute “obstruction” by any stretch of common sense, even if there were questions about whether they would constitute sufficient evidence of the federal crime of “obstruction of justice.” Media commentary seems to bear this out, and I am certain that further attention to this part of the Report will raise a host of deeply troubling questions that will have to be investigated by the House. For in this matter as in so many others, Trump acts with complete disdain for the law and for justice.

In the minutes since the Report’s release, I have been paying attention to Volume I, which deals with the question of “coordination” with Russia to interfere with the 2016 election. Ever since Barr first declared weeks ago, on the basis of nothing, that the Report failed to find “collusion” — a claim he repeated, in Trumpist fashion, at least seven times in today’s press conference — it has been clear that, at the very least, Mueller decided not to bring charges against anyone associated with the campaign for the extensive communications between the campaign and Russian government or government-linked entities.

And the Report makes clear that the Mueller team did decline to file any additional criminal charges in connection with these links.

But the Report also makes clear that the standard of judgment it employed was a very high legal standard of strict criminality:

this Office’s focus in resolving the question of joint criminal liability was on conspiracy as defined in federal law, not the commonly discussed term ‘collusion.’ The Office considered in particular whether contacts between Trump Campaign officials and Russia-linked individuals could trigger liability for the crime of conspiracy — either under statutes that have their own conspiracy language . . . or under the general conspiracy statute. The investigation did not establish that the contacts described in Volume I, Section IV, supra, amounted to an agreement to commit any substantive violation of federal criminal law — including foreign-influence and campaign-finance laws, both of which are discussed further below. The Office therefore did not charge any individual associated with the Trump Campaign with conspiracy to commit a federal offense arising from Russia contacts, either under a specific statute or under Section 371’s offense clause (p. 181).

A preliminary effort to read Volume I of the Report makes a few things equally clear:

1. At crucial places in the Report, entire sections, up to seven pages long, are completely redacted, making it impossible to understand elements of the Counsel’s reasoning.
2. This is important, because the entire Volume I, almost 200 pages long, documents and painstakingly discusses a wide range of contacts between the Trump campaign and Russian government-connected entities in which information was shared about mutual interests in seeing Trump win the election and even about actions undertaken, or potentially undertaken, by both sides, to further this shared mutual interest.

Communication that was, in vernacular language, collusion.

The Report explains, at least partially in the unredacted parts, that in its judgment these contacts did not rise to the level of a criminal offense because at least on the part of the Trump people involved, there is insufficient evidence to prove beyond a reasonable doubt that there was a knowing and deliberate intention to violate the law.

But it also makes crystal clear that this boils down to a few very narrow questions:

1. Did the many instances of communication about possible collaboration or assistance violate federal criminal law through an intentional violation of campaign finance law?
2. Did many public statements and private communications articulating a hope that hacked Clinton and DNC e-mails would be made public — and perhaps even encouraging such activity — constitute a conspiracy to violate the law?

In both cases, the Report’s answer is “no.” There was no legally-defined “criminal conspiracy.”

But the Report also makes clear that in both cases there was very clear communication about mutual assistance, the offering of such assistance, and the enactment of it.

The most egregious instance of this is noted on p. 140 of the Report:

“Manafort briefed Kilimnick on the state of the Trump Campaign and Manafort’s plan to win the election. That briefing encompassed the Campaign’s messaging and its internal polling data. According to Gates, it also included discussion of ‘battleground states,’ which Manafort identified as Michigan, Wisconsin, Pennsylvania and Minnesota.”

This is a clear indication of collusive interaction.

On the one hand, it involves the chief of the Trump campaign sharing sensitive and strategic campaign information with a Russian government-linked individual with the clear understanding that this campaign information will be useful to that individual. On the other hand, it involves the receipt of such information by the Russian individual, which could be useful to him only insofar as he was interested in using it to support the election of Trump — as Manafort knew he would.

Collusion? Obviously. But “conspiracy?” Here, the Mueller team apparently decided not, for a simple reason: while Kilimnick’s receipt and use of the information might clearly have violated U.S. criminal law, Manafort’s sharing of the information did not involve any explicit conspiracy to break the law — he was simply sharing — and no communications between the Trump campaign and Kilimnick represented a material involvement in the actual crime of the hacking itself.

Barr’s words during his so-called “press conference” here are important:

The Special Counsel also investigated whether any member or affiliate of the Trump campaign encouraged or otherwise played a role in these dissemination efforts. Under applicable law, publication of these types of materials would not be criminal unless the publisher also participated in the underlying hacking conspiracy. Here too, the Special Counsel’s report did not find that any person associated with the Trump campaign illegally participated in the dissemination of the materials.

In other words, while Manafort, or Roger Stone, or someone else, might well have played roles in the dissemination of hacked information, such participation would not be illegal because it did not involve involvement in the “underlying hacking conspiracy.” Note that Barr does not state that “the Special Counsel’s report did not find that any person associated with the Trump campaign participated in the dissemination of the materials.” It only found that no one illegally participated. The clear implication: there was participation. It just didn’t technically violate the law.

This is one example of how damning even the more “exculpatory” parts of the Report are.

I believe that it will not take long for serious legal scholars to comb through both volumes of the Mueller Report and identify and critique extensive evidence of both collusion, whether or not it was legally judged to be “conspiracy,” and obstruction.

Trump and his enablers will continue to lie.

And a public sphere that has not yet been destroyed or cowed by Trump will expose the lies.

And hopefully the Democrats in Congress will take decisive action to act on the lies.

This needs to be done with care.

It is surely not the only thing that needs to be done.

And it surely does not constitute a “campaign strategy” for 2020.

But it needs to be done, if this President is to be held accountable for his many assaults on the rule of law.

Jeffrey C. Isaac is James H. Rudy Professor of Political Science at Indiana University, Bloomington. He is a Senior Editor at Public Seminar, and his book, #AgainstTrump: Notes from Year One, was recently published by Public Seminar/OR Books.