Editor’s Note: This article is available in audio format on the Lawfare Podcast Shorts:
Back in February, writing with Susan Hennessey and Mikhaila Fogel, we laid out “Four Principles for Reading the Mueller Report.” The report was then still vapor, a document whose preparation was widely hypothesized by most analysts and in some form required by regulation. Its expected arrival at the Justice Department had been reported by a number of news outlets, but about its content, no solid information was available. While we were still self-consciously behind the veil of ignorance about what Special Counsel Robert Mueller had concluded, it seemed like a good time to lay out some ground rules for how to read it fairly. Our proposals were simple:
- People should be prepared to accept Mueller’s prosecutorial judgments, we argued.
- They should accept the factual record described in the report.
- They should not assume the report covers more than it, in fact, conveys—there being a lot of legal questions about President Trump’s behavior that lie outside the scope of the Mueller investigation.
- Nonprosecution decisions do not necessarily resolve questions of morality, ethics or impeachability—in other words, the judgments of history, journalism and Congress are not determined by whether Mueller finds the president’s conduct indictably criminal.
When we made these suggestions, we were candidly not anticipating what turned out to be an important intervening event: the release of Attorney General William Barr’s letter describing the top-line prosecutorial judgments Mueller had reached without releasing any of the underlying factual or analytic work product. The lag between the Barr letter and the still-impending release of the report itself has been a period in which the press has no capacity to apply the principles we laid out—or any others—because it has no capacity to read the document at all. Yet it is nonetheless awash in an aggressive spin campaign by the president and his allies as to what Mueller supposedly found, and an aggressive push as well from congressional Democrats to focus on procedural demands for the report’s release. Lost in the shadow boxing of this period is, well, the report itself.
The press, to put it mildly, has not handled the confusion well. News reporting initially dramatically overstated what Barr had actually said about the report—to the point that Barr himself clarified in a second letter to Congress that he hadn’t been summarizing its content. The reporting also frequently confused prosecutorial judgments with normative judgments and presumed factual conclusions from declinations in a fashion that may well be incorrect.
The problem began immediately on the delivery of the Mueller report, when news outlets reported on Mueller’s declination of any additional prosecutions relating to conspiracy between the Trump campaign and the Russian government by declaring that Mueller had found “no evidence” of such an agreement. Some blasted out the president’s claims of “Complete and Total EXONERATION” without immediately noting that Barr’s letter specifically stated Mueller had not exonerated the president on obstruction. Others reported incorrectly that there had been no obstruction, pointing to Barr’s independent conclusion that Mueller’s evidence was not enough to bring an obstruction case. The New York Times and the Washington Post both described Barr’s letter as lifting a “cloud” over Trump’s presidency. In many cases, reporters and publications trumpeted Barr’s top-line descriptions without giving adequate attention to both the more complicated facts of what Barr had actually described—the difference between no evidence of conspiracy beyond a reasonable doubt and “no collusion,” for example—and the information that remained hidden from public view. The letter “provided [Trump] with a powerful boost for the final 22 months of his term,” the Times’s Peter Baker wrote, before noting that “no one outside the Justice Department has actually read the report.”
It is rare that life offers a true opportunity for a do-over, but this is one of those times for the press. Testifying before the Senate Committee on Appropriations on April 10, Barr said that the report will be out next week. So the press will imminently have another chance to cover this document—this time the real thing—in a thoughtful and serious manner. To avoid needless errors, both factual and analytic, here are nine suggestions for writing about the document—things to do, and things not to do.
First, focus on what the report actually says. It is far less important to give your pithy account of what Mueller did—that, in your words, he “cleared” the president or that “he gave a devastating account” of Trump’s or his campaign’s conduct—than it is to report what Mueller actually said. Report what facts Mueller found. Report what prosecutorial judgments he made. Report how he described his analysis of the facts against the law. Don’t impose onto the substantive reporting of the document some political meta-story that goes beyond the four corners of the report. Your first job here is to tell readers what Mueller did and concluded in 400 pages of text.
Second, the idea that the big story is the contents of the report has an important corollary: The big story, at least initially, is not how people are reacting to the report. Unless you’re a congressional reporter or analyst, it makes little sense to focus on how congressional Democrats are reacting to the document’s release or even whether Congress will take this as an invitation to begin impeachment proceedings. Likewise, it’s also premature to zero in first thing on how the report will affect the race for president in 2020. Do not rush to get reaction from commentators or members of Congress who plainly will not have read or digested the document yet. Do not let the story or stories Mueller tells get overtaken by the many spins that will vie to overtake it.
Third, accept that there could be more than one story to tell about the report’s contents. There may be several—and they may cut in very different directions. Barr’s initial letter flags at least two largely distinct inquiries, noting that Mueller examined possible conspiracy between the Trump campaign and the Russian government and also examined possible obstruction of justice by the president. But even within these areas, particularly the Russia prong, there are almost certainly important subsidiary threads, and the merits of these threads might be very different from one another. It’s perfectly possible that the report will “totally clear the President” on some points and describe deeply disturbing conclusions and new facts on others.
Fourth, this also means that the press should be careful not to confuse prosecutorial judgment with facts. This was a huge problem at the time of the original Barr letter. A decision not to prosecute someone provides important information about whether a prosecutor believes that a federal offense has been committed and the admissible evidence of that offense is “sufficient to obtain and sustain a conviction,” as our colleague Paul Rosenzweig has detailed. A 400-page report will contain plenty of other information beyond the top-line conclusion, however. That additional material does not erase the overarching prosecutorial judgment, but neither does the prosecutorial judgment erase whatever additional material the report sets out. The press, in other words, would do well to keep as separate as possible the task of explaining Mueller’s prosecutorial judgment from the task of analyzing and describing the factual record he found.
Fifth, an important corollary to the previous point is that the decision not to prosecute a person for some alleged conduct is not a historical judgment that the conduct didn’t happen. The absence of a conspiracy indictment may mean there was “no collusion,” but it may not mean that. It may mean, rather, that the specific form of “collusion” (whatever that means) doesn’t happen to violate the law or that the evidence of misconduct, while compelling, is insufficient for a criminal case. And even if it does mean “no collusion,” it doesn’t erase the factual record that we already know to exist. The Trump Tower meeting still happened, after all; and the Trump Tower Moscow effort still went on, and Michael Cohen still lied about it.
Sixth and relatedly, keep in mind that the decision not to prosecute someone based on the factual record does not end the analysis of that record. It just ends the prosecutorial analysis. Mueller’s job as a prosecutor was to investigate and reach decisions about whether or not to bring cases based on that evidence (which is exactly why his apparent decision to hold back on reaching a conclusion as to evidence of obstruction has caused many former prosecutors to scratch their heads). But indictability is not the only legitimate standard of evaluation. It may be perfectly appropriate for Mueller to decline a case and yet for observers to conclude that the conduct at issue merits the opprobrium of all decent people. Congress and the public have a different set of responsibilities. With the evidence Mueller has obtained on the table, it will now be for Congress to decide whether and how the report suggests new avenues for oversight or legislation or even if it merits the beginning of impeachment proceedings. It will also be for the public to determine whether the conduct described on the part of the president and those around him is befitting of the office of the president. These are not prosecutorial judgments, and the declination of prosecutions does not answer them.
This may well prove to be particularly important with regard to the obstruction inquiry, given the absence of a charging decision on Mueller’s part. As we wrote along with our colleagues after the initial release of the Barr letter, this may mean that “the Mueller report has teed up the question of presidential obstruction for evaluation by a different actor—to wit, by Congress—on a decidedly noncriminal basis.”
Seventh, in particular, keep in mind that the declination of criminal charges does not answer counterintelligence questions that the same fact patterns may raise. Repeated contacts between a foreign government and its cutouts and people associated with a political campaign may involve no violation of any law, while at the same time raising serious counterintelligence concerns. Those concerns may involve the activities of the foreign actors, the domestic actors, or both. The fact that an investigation yields no criminal charges does not mean the counterintelligence concerns were meritless or investigation unwarranted. The resolution of a criminal investigation without charges does not necessarily or even presumptively address the merits of those counterintelligence concerns.
Eighth, be thoughtful, not reflexive, about redactions. Don’t be quick to jump to the conclusion that redactions suggest that a coverup is happening. The better approach is to examine whether the redactions significantly impede understanding of Mueller’s conclusions or whether the report is still largely comprehensible. Redactions are far more concerning and suspicious if they are extensive and if they blot out conclusions than they are if they are sparse and merely remove evidentiary detail.
In his second letter to Congress, Barr laid out four different categories of likely redactions: grand jury material; sensitive material that may compromise intelligence community sources and methods if made public; material that could affect “other ongoing matters,” including investigations referred out from the special counsel’s office; and material that would “unduly infringe on the personal privacy and reputational interests of peripheral third parties.” Not all these categories are of comparable weight. Redaction of grand jury material is legally required, at least in the absence of a court order to the contrary—and Barr has said that he will not seek such an order as an initial matter. Redaction of material related to intelligence sources and methods is important and a legitimate concern for the intelligence community. Capacious redactions for the privacy of “peripheral third parties,” by contrast, should draw greater suspicion. Redactions to protect pending matters are exactly as defensible as they are proximately related to matters actually still pending.
Finally, ninth, don’t look for unified field theories. There may not be a single overarching theme here. There may not be a one-sentence characterization of the Mueller report that is accurate and useful. So embrace complexity. In the rush to the cameras, to the microphones and to publish the hot take after the report is released, this will be genuinely hard. But a 400-page report containing dense facts, legal analysis and redactions likely won’t lend itself well to any simple analysis.
So let the report be complicated. It will be even if you resist.