Jurisprudence

Mueller Did His Investigation for a World We Don’t Inhabit

His report was predicated on caring about facts. Our world is about who can claim victory the quickest.

William Barr, Donald Trump, Robert Mueller
Photo illustration by Derreck Johnson. Photos by Chip Somodevilla/Getty Images; Michael Reynolds - Pool/Getty Images; Saul Loeb/AFP/Getty Images.

Someday, when we’re sitting around the electronic campfires we’ve lit to pretend-warm the huts in our Mars colonies, we will tell our grandchildren about whatever vestigial memories we have of facts. Perhaps we will be able to date their demise to the 46-ish hours between the announcement on Friday, March 22, 2019, that Robert Mueller had submitted his final report to Attorney General William Barr, and the letter Barr released on Sunday, March 24, 2019, which purported to summarize its contents and legal conclusions entirely.

In those 46 hours, there were exactly two facts known: that nobody else had been indicted by Mueller, and that Barr did not find any proposed action by Mueller to be “inappropriate or unwarranted.” That was, quite literally, all we knew. And into that void—that absence of facts—swept the spin. On Fox News, the declamation came forth that there had been an actual finding, of, what else, “no collusion.” Indeed, as Justin Peters noted, the television news station that exists exclusively to protect and defend the president’s preferred narrative declared, without basis in any publicly known or knowable fact, that it was “No Collusion Day!” While every other network was trying to parse out scenarios and future outcomes, and carefully explaining that nothing definitive had been shared with the public, conservative media and congressional Republicans were already claiming that the facts had been amassed, and assessed and released, and supported their cause. Were they clairvoyant? Did they have some insider information? No, they just had the special feeling they get at Fox: The facts are not material to the claim. In the absence of any knowable facts, Republicans declare victory and invent their own. In the absence of any knowable facts, Democrats declare defeat.

By the time Barr’s summary of the Mueller report—reportedly hundreds of pages condensed into just four—was released on Sunday afternoon, the fact-free claims had already congealed into hardened conclusions. There had been no crimes, no conspiracies, no bad acts committed. Sarah Huckabee Sanders announced that the Justice Department had produced “a total and complete exoneration” of the president. (This was false). So did the president. By continuing to use the word collusion, which is legally meaningless, the GOP continues to distract from what the probe was really about and to elide any discussion of what an equivocal finding on obstruction really means. In the absence of facts, Republicans invent the words they need to claim victory. In the absence of facts, Democrats roll over.

The Barr letter doesn’t completely exonerate President Donald Trump of anything, as Will Saletan argues here, not of collusion nor of obstruction. It simply “shows that collusion and obstruction were defined to exclude what [Trump] did.” The summary defined criminality explicitly in order to exclude the president’s bad conduct, including broadly known conduct never mentioned in the summary. And Barr, who was never invited to do so, issued a legal conclusion of his own on the question of obstruction in order to settle the matter. His summary letter is ostensibly predicated upon almost two years of amassed evidence, but it is not facts—instead, it raises vastly more questions than it answers and appears to be profoundly wrong on some questions of law. Still, it’s a win for the GOP, while progressives, who had convinced themselves that constitutional democracy would be saved only when Robert Mueller led Donald Trump away across the White House lawn in handcuffs, declare defeat. Some of the most loyal Mueller-will-save-us dreamers never really understood what Mueller intended to do with the facts he was gathering, anyway. Indicting a sitting president wasn’t ever really on the menu.

Mueller himself has been vilified and excoriated by the president and his boosters for months—but even in the face of “victory,” he was somehow not vindicated, either. In their view, he’s still a “deep state” pretender: On Monday’s Fox & Friends, Steve Doocy asked Rudy Giuliani, the president’s lawyer, “Do you give Robert Mueller credit and do you feel bad about the discrediting of Robert Mueller from you and the president?”

“No,” laughed Giuliani. “No, I don’t at all. He deserved every bit of criticism he got.” Giuliani also took the opportunity to grimly warn—on the same show—that someone had tricked the FBI into opening the original investigation. “Yes, yes, yes—and you’re going to find out, believe me, who it was,” he said. Sen. Lindsey Graham announced that he’s opening hearings into the FBI’s handling of Hilary Clinton’s emails. In their telling, Mueller completely and thoroughly exonerated Donald Trump for everything bad, establishing him as the most lawful president ever, and the time has come to destroy the Justice Department as punishment. Win-win.

The question that is left to answer is whether the failure to indict a sitting president means that Mueller failed at his job. Mueller has spent his past 22 months as special counsel practically spitting out facts—in the indictments that carefully detailed a Russian hack of DNC servers and an effort by Russians to tilt the 2016 election, and in the indictments that hit senior members of the Trump campaign both for improper foreign connections and for lying about them. In the 46 hours between the Mueller report and the Barr summary, those were dismissed by Trump defenders as mere “process crimes.” (That’s their lawyerly term for lying, which they then proceeded to do as they asserted what Mueller has and has not concluded.)

The real tragedy of the Barr report is that he has facts at his fingertips—not just facts about the ways in which members of the Trump campaign acted inappropriately and then lied about it, which we all know, but also facts about obstruction that we do not yet know. But like Fox News had done a day before, Barr gave us spin in lieu of facts while asking us to believe that they are the same thing.

The House voted 420–0 to let us see the report. Donald Trump last week said that he wanted the report to be made public. If in fact Donald Trump is completely exonerated, we would be well served by knowing that as a country. And yet, Senate Majority Leader Mitch McConnell says he will block public access to the full report because mumble something mumble national security.

In a world in which facts really mattered, the notion that Republicans “won” and Democrats “lost” the Mueller report, based on an incomplete summary that drew hasty conclusions without showing any work, would be laughable. Especially if the author of that summary auditioned for his job by claiming that presidential obstruction of justice couldn’t ever be a real thing, anyway. William Barr could write his letter in 46 hours because he had always known what it was going to say.

We do not live in a black-and-white world. The answer is not that Trump either did nothing wrong or committed massive crimes for which he can be removed from office. Mueller’s report—were we ever to inspect it—appears to have split the difference, and delivered its findings in nuanced shades of gray. But at this point, it almost doesn’t matter whether we can inspect it. The lines are drawn and the legal questions have been answered, not with findings but with political sides retreating to partisanship—one side says the president is cleared (and is now doubling down on attacking the press and the Justice Department) and the other side looks at the brick wall it is facing and concedes that maybe it’s not worth it, anyway. This has been the state of play for years now. The biggest question just might be why we expected anything else.