Alan Dershowitz: Who won, who lost in Mueller report
How the American judicial system saved Trump — despite his behavior
The dots did not connect.
That appears to be at the heart of special counsel Robert Mueller's conclusion that, as quoted in a letter from Attorney General William P. Barr to congressional leaders, members of the Trump presidential campaign did not conspire or coordinate with "the Russian government in its election interference activities."
Separately, Mueller's investigation did not find that President Trump committed obstruction of justice, but it did not "exonerate" him either. Nonetheless, Barr wrote that he and Deputy Attorney General Rod Rosenstein had determined that the evidence did not establish that Trump committed obstruction of justice (more about that later).
Certainly, the Mueller investigation of conspiracy with Russia did not lack for suspicious dots:
- The president's son went to the Trump Tower meeting hoping for Russian help in the campaign.
- On the day that Trump publicly called for the Russians to find Hillary Clinton's missing emails, the Russians hacked email accounts of staffers in Clinton's personal office and email addresses of the Clinton campaign.
- A close Trump associate knew in advance of the coming release by WikiLeaks of emails from Democratic National Committee computers.
- Directly or through intermediaries, Trump and more than 17 people in his circle had over 100 contacts with Russians and WikiLeaks.
- Trump fired the FBI director when he refused to back off an investigation of Russian contacts by one of the president's associates.
- Several Trump associates pleaded guilty to lying about their Russian contacts.
So, many are asking, how could there not have been a conspiracy?
Largely overlooked during the Mueller investigation is the most exacting legal standard in all of American law, which is the beyond-a-reasonable-doubt burden that a prosecutor must meet to convict a defendant of a crime. It's a cornerstone of our criminal justice system that before an individual is deprived of his liberty the admissible evidence must convince all 12 jurors, as the Supreme Court has explained, with "near certitude of the guilt of the accused."
Mueller and his team evidently looked at the dots and decided that a jury would not with "near certitude" conclude that Trump or his campaign conspired with Russia. We don't have the Mueller report, yet, but it's a fair guess that the evidence the special counsel did not have was much more significant than the evidence he did have.
Apparently, missing was, at minimum, a credible witness with firsthand knowledge that Trump or someone in his circle had conspired with the Russians to commit a crime, such as illegally accessing the Clinton campaign emails or DNC computers.
While it's true that circumstantial evidence can establish guilt beyond a reasonable doubt, it's also true that in a criminal trial there is no such thing as, "where there's smoke, there must be fire." Conspiracy requires an agreement between two or more people to commit an unlawful act, not just that they had parallel objectives, which is all the dots may represent.
And even a witness may not have been enough. President Nixon would not have been forced to resign in the face of likely impeachment if the only evidence had been the word of White House Counsel John Dean. The Oval Office tapes sealed Nixon's fate. No comparable evidence evidently was found by Mueller.
That same beyond-a-reasonable doubt standard was cited by Barr in concluding that the evidence did not establish obstruction. But that conclusion is far more troubling because the Mueller report was not received by Barr until late Friday. In less than 48 hours over a weekend, he and Rosenstein decided that - unlike Mueller, who had been investigating Trump for over a year-and-a-half - they in fact, could "exonerate" Trump of obstruction. A weekend just does not seem like time to do a careful review of an issue that even Mueller found to be a close one and so the question, why the rush?
Before the controversy over Barr's obstruction decision begins, though, consider what happened in the investigation of the alleged Trump conspiracy with Russia. A presidential candidate who, directly and through his inner circle, seemingly invited the help of a foreign adversary of the United States in getting elected was thoroughly and impartially investigated. Professionals committed to the rule of law carefully weighed the evidence and, on the basis of a standard designed to assure no individual is unfairly convicted of a crime, concluded that the president did not break the law, no matter how reprehensible his conduct may have been otherwise.
The American judicial system, which Trump once compared to that of a "third world country," may have ultimately saved him.
Gregory J. Wallance was a federal prosecutor during the Carter and Reagan administrations. He is the author most recently of "The Woman Who Fought An Empire: Sarah Aaronsohn and Her Nili Spy Ring." Follow him on Twitter at @gregorywallance.