Welcome to DU!
The truly grassroots left-of-center political community where regular people, not algorithms, drive the discussions and set the standards.
Join the community:
Create a free account
Support DU (and get rid of ads!):
Become a Star Member
Latest Breaking News
General Discussion
The DU Lounge
All Forums
Issue Forums
Culture Forums
Alliance Forums
Region Forums
Support Forums
Help & Search
Benjamin Wittes, Lawfare: Very Quick Thoughts on the End of the Mueller Investigation
https://www.lawfareblog.com/very-quick-thoughts-end-mueller-investigationThe president should wait before popping the champagne corks over this and tweeting in triumph. Yes, in the best-case scenario for the president, Mueller is not proceeding further because he lacks the evidence to do so. But even this possibility contains multitudes: everything from what the president calls “NO COLLUSION!” to evidence that falls just short of adequate to prove criminal conduct to a reasonable jury beyond a reasonable doubt—evidence that could still prove devastating if the conduct at issue becomes public.
There are other possibilities as well. It’s possible, for example, that Mueller is not proceeding against certain defendants other than the president because he has referred them to other prosecutorial offices; some of these referrals are already public, and it’s reasonable to expect there may be other referrals too. In this iteration, what is ending here is not the investigation, merely the portion of the investigation Mueller chose to retain for himself. It’s possible also that Mueller is finished because he has determined that while the evidence would support a prosecution of the president, he is bound by the Justice Department’s long-standing position that the president is not amenable to criminal process. On the obstruction front, he may well have concluded that, while the president acted to obstruct the investigation, he cannot prove beyond a reasonable doubt that the president’s obstructive acts were not exercises of Trump’s Article II powers. It’s also possible that Mueller has strong prudential reasons for not proceeding with otherwise viable cases.
My gut instinct is that it is some combination of these factors that explains the end of the probe. Without knowing the reasons the investigation is finished, it is impossible to know how to assess its end—and nobody should try.
Finally, we also know other one big thing: There is a report—some kind of, as Barr describes it, quoting the relevant regulation, “‘confidential report explaining the prosecution or declination decisions’ he has reached.” About this document we admittedly know little. Barr said in his letter that he is reviewing the document and “may be in a position to advise [Congress] of the Special Counsel’s principal conclusions as soon as this weekend.” How capacious this initial accounting will be is known only to Barr himself. But Barr has also promised to make as much of Mueller’s findings public as he can consistent with the law—a promise he reiterated in his letter Friday evening. So it’s reasonable to expect, though not to be complacent in the expectation, that over time, the underlying factual findings and legal analysis will emerge.
All of which, as I say, shifts the conversation from what Mueller will do to what he has written in explaining what he has done—and what he has not done. Vindication for the president will take place only when we learn that the facts contained in the report exculpate him. The end of the Mueller probe could well prove tomorrow to be merely the creation of a factual record for the next act of this drama.
There are other possibilities as well. It’s possible, for example, that Mueller is not proceeding against certain defendants other than the president because he has referred them to other prosecutorial offices; some of these referrals are already public, and it’s reasonable to expect there may be other referrals too. In this iteration, what is ending here is not the investigation, merely the portion of the investigation Mueller chose to retain for himself. It’s possible also that Mueller is finished because he has determined that while the evidence would support a prosecution of the president, he is bound by the Justice Department’s long-standing position that the president is not amenable to criminal process. On the obstruction front, he may well have concluded that, while the president acted to obstruct the investigation, he cannot prove beyond a reasonable doubt that the president’s obstructive acts were not exercises of Trump’s Article II powers. It’s also possible that Mueller has strong prudential reasons for not proceeding with otherwise viable cases.
My gut instinct is that it is some combination of these factors that explains the end of the probe. Without knowing the reasons the investigation is finished, it is impossible to know how to assess its end—and nobody should try.
Finally, we also know other one big thing: There is a report—some kind of, as Barr describes it, quoting the relevant regulation, “‘confidential report explaining the prosecution or declination decisions’ he has reached.” About this document we admittedly know little. Barr said in his letter that he is reviewing the document and “may be in a position to advise [Congress] of the Special Counsel’s principal conclusions as soon as this weekend.” How capacious this initial accounting will be is known only to Barr himself. But Barr has also promised to make as much of Mueller’s findings public as he can consistent with the law—a promise he reiterated in his letter Friday evening. So it’s reasonable to expect, though not to be complacent in the expectation, that over time, the underlying factual findings and legal analysis will emerge.
All of which, as I say, shifts the conversation from what Mueller will do to what he has written in explaining what he has done—and what he has not done. Vindication for the president will take place only when we learn that the facts contained in the report exculpate him. The end of the Mueller probe could well prove tomorrow to be merely the creation of a factual record for the next act of this drama.
5 replies
= new reply since forum marked as read
= new reply since forum marked as read
