MULLING OVER MUELLER – VOLUME ONE - “COLLUSION”

[NOTE:  This post is limited to “collusion.” I’ll leave obstruction of justice for a possible future post.  All quoted (or indented) material in this post is derived from Special Counsel Robert Mueller III’s Report On The Investigation Into Russian Interference In The 2016 Presidential Election.  Here is a link to the Report: https://www.nytimes.com/interactive/2019/04/18/us/politics/mueller-report-document.html#g-page-182.] 

This is the sentence everyone is talking about in terms of whether there was “collusion.”  Mueller’s redacted Report concludes that, “the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”  

But what does that actually mean?  There are two terms in that sentence-- “establish” and “conspired or coordinated”-- that require definition in order to fully understand Mueller’s conclusion.  

“Establish” means to prove a crime beyond a reasonable doubt with admissible evidence sufficient to obtain and sustain a conviction.  Mueller cites the Principles of Federal Prosecution set out in the Justice Manual to describe the standard of proof under which he operated (emphasis added):

9-27.300 - Selecting Charges—Charging Most Serious Offenses.  Comment:

At the outset, the attorney for the government should bear in mind that he/she will have to introduce at trial admissible evidence sufficient to obtain and sustain a conviction, or else the government will suffer a dismissal, or a reversal on appeal. For this reason, he/she should not … recommend in an indictment, charges that he/she cannot reasonably expect to prove beyond a reasonable doubt by legally sufficient and admissible evidence at trial.

Applying this standard of proof to the evidence he reviewed, Mueller says (emphasis added): 

The report describes actions and events that the Special Counsel’s Office found to be supported by the evidence collected in our investigation. In some instances, the report points out the absence of evidence or conflicts in the evidence about a particular fact or event.   In other instances, when substantial, credible evidence enabled the Office to reach a conclusion with confidence, the report states that the investigation established that certain actions or events occurred.  A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.

So, unless Mueller reasonably determined that he could prove “actions or events” or “facts” beyond a reasonable doubt with legally admissible evidence, they were not established.  However, that doesn’t mean there was no proof, just that it wasn’t sufficient for a criminal conviction.  

But what actions, events, or facts was Mueller trying to establish?  That takes us to the second needed definition:  “conspired or coordinated.”  Mueller determined that coordination and conspiracy are legally equivalent, and that each requires a tacit or express agreement to commit a crime (emphasis added):  

In evaluating whether evidence about collective action of multiple individuals constituted a crime, we applied the framework of conspiracy law, not the concept of “collusion.” ... In connection with that analysis, we addressed the factual question whether members of the Trump Campaign “coordinat[ed]” — a term that appears in the appointment order — with Russian election interference activities. Like collusion, “coordination” does not have a settled definition in federal criminal law. We understood coordination to require an agreement — tacit or express — between the Trump Campaign and the Russian government on election interference. That requires more than the two parties taking actions that were informed by or responsive to the other’s actions or interests. We applied the term coordination in that sense when stating in the report that the investigation did not establish that the Trump Campaign coordinated with the Russian government in its election interference activities.

So, Mueller concluded that he could not prove beyond a reasonable doubt the existence of an agreement between the Trump Campaign and the Russian government to hack computer data or conduct a social media campaign to interfere with the 2016 election.  But that doesn’t mean that Russia didn’t act in response to an action by the Trump Campaign, or vice versa.  For example, “Hey, Russia, if you’re listening, please find her emails!” or words to that effect.  Mueller in fact, suggests as much (emphasis added):

 

The investigation also identified numerous links between the Russian government and the Trump Campaign. Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.

So, in plain English, Mueller proved beyond a reasonable doubt that the Trump Campaign accepted the fruits of a poisoned tree, but he could not prove beyond a reasonable doubt that the Trump Campaign asked Russia to pick the fruit.  No agreement means no conspiracy.

Mueller goes on to give us some insight into why he could not reach the “beyond a reasonable doubt” standard of proof (emphasis added):

The investigation did not always yield admissible information or testimony, or a complete picture of the activities undertaken by subjects of the investigation. Some individuals invoked their Fifth Amendment right against compelled self-incrimination … Some of the information … was presumptively covered by legal privilege …. Even when individuals testified or agreed to be interviewed, they sometimes provided information that was false or incomplete, leading to some of the false-statements charges described above. And the Office faced practical limits on its ability to access relevant evidence as well — numerous witnesses and subjects lived abroad, and documents were held outside the United States.

Further, the Office learned that some of the individuals we interviewed or whose conduct we investigated — including some associated with the Trump Campaign-deleted relevant communications or communicated during the relevant period using applications that feature encryption or that do not provide for long-term retention of data or communications records. In such cases, the Office was not able to corroborate witness statements through comparison to contemporaneous communications or fully question witnesses about statements that appeared inconsistent with other known facts.

Accordingly, while this report embodies factual and legal determinations that the Office believes to be accurate and complete to the greatest extent possible, given these identified gaps, the Office cannot rule out the possibility that the unavailable information would shed additional light on (or cast in a new light) the events described in the report.

BOOM!  Volume Two of the Report on obstruction might shed some light on whether obstruction made it impossible to satisfy the burden of proof in certain instances.

Part V of the report details prosecution decisions and declinations and is as interesting as the introduction and executive summary.  Just to give you a flavor of how complicated an investigation this was,

• Re the June 9, 2016 Trump Tower meeting:  Mueller couldn’t prove a campaign finance violation because the evidence didn’t establish beyond a reasonable doubt that Don Jr. knowingly and willfully violated the law; it was unclear whether the materials offered had a value of more than $25,000; and there were First Amendment issues. 

• Re the WikiLeaks dumps:  Mueller couldn’t prove that sharing and disseminating hacked emails constituted trafficking in or receipt of stolen property under federal law, because the statutes comprising that law cover “goods, wares, or merchandise”—in other words, tangibles, and Congress has failed to update the statutes to include digital information. 

So, yes, “No collusion!”  But only because it couldn't be proven beyond a reasonable doubt.

Keep it real!

Marilyn