Mueller’s ‘Insufficient Evidence’ Doesn’t Mean What Trump Says It Does

(Bloomberg) -- On the subject of Robert Mueller, Democrats and Republicans could probably agree on at least one thing: He’s not a sound-bite guy.

The special counsel’s report on Russian interference weighed in at 448 pages. Befitting the former U.S. Marine, it’s thorough, exhaustive in detail, even exasperating in its attention to fine legal arguments and Justice Department policy guidelines. Speaking about it publicly for the first time on Wednesday, Mueller made a point to say that the pages contained his words, carefully chosen.

It follows, then, that the report as reiterated by Mueller isn’t easily reduced to catch phrases.

Yet one particular turn of phrase from it has begun to ricochet in unintended ways: “insufficient evidence.”

A few days after the report landed in March at the Justice Department, with the public clamoring for access, Attorney General William Barr used a different formulation, saying that Mueller had found insufficient evidence of “coordination” between Russia and the Trump campaign to bring charges. As for the inquiry into obstruction by the president, Barr said he found that the evidence was not sufficient to bring charges there either.

From that moment on, those looking for a glib characterization had a talking point, whether they had read the Mueller report or not. Barr’s shorthand caught on, chiefly with the White House and the Republican Party: “insufficient evidence” for charges of either collusion or obstruction.

“Barr distorted the actual factual and legal narrative by saying no collusion and no obstruction,” said Kimberly Wehle, a former federal prosecutor who’s now a professor at the University of Baltimore School of Law. “It’s not all or nothing, black or white.”

The “insufficient evidence” line has emerged as Trump’s principal defense. In a tweet sent out minutes after Mueller finished his first and only public comments on the report, Trump wrote: “Nothing changes from the Mueller Report. There was insufficient evidence and therefore, in our Country, a person is innocent. The case is closed! Thank you.”

But that’s not what Mueller said Wednesday as he reiterated what was in the report, emphasizing points that made him sound like a disappointed teacher reminding his students to do their homework.

Mueller noted that his office had insufficient evidence to bring criminal conspiracy charges against the Trump campaign for its response to Russian efforts in the election-tampering aspect of his investigation.

But he didn’t invoke the same phrase for the second part of his report, which cited 10 episodes in which Trump’s actions could be construed as obstructive. Intended or not, that was a reminder that Barr was the one who said he and other senior officials at the Justice Department “concluded that the evidence developed by the Special Counsel is not sufficient to establish that the President committed an obstruction-of-justice offense.”

Evidence “not sufficient” sounds like language that could have come from Mueller. But it didn’t -- at least on the obstruction question. Just the opposite: Mueller said Wednesday that “if we had confidence that the president clearly did not commit a crime, we would have said that.” He then reiterated the view that “under longstanding Department policy, a president cannot be charged with a federal crime while he is in office.”

Referring to constitutional powers, Mueller suggested it was up to Congress to deal with possible misconduct by the chief executive. He cited a Justice Department opinion that “requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.”

Representative Justin Amash, a Republican from Michigan, has split with Trump, Barr and the rest of his party on the matter. In a series of tweets this week, he has laid out Mueller’s evidence of obstruction and called for Trump’s impeachment. Many Democrats running for higher office have joined him in that call.

“The actual Mueller report makes clear that the obstruction case might possibly be made, but that Mueller leaves the decision to Congress,” Seth Taube, a former federal prosecutor now at Baker Botts, said by email. He said that that subtlety has been lost in much of the news coverage. “While Barr has a basis to argue no obstruction occurred (a sitting president can arguably fire an FBI director for any reason under the Constitution, for example), it is not Barr’s decision. It is Congress’s to decide,” he wrote.

Concluding what he hoped would be his only public address, Mueller reminded the country that Russians had made “multiple and systematic efforts to interfere in our election. That allegation deserves the attention of every American.”

It was a not-so-subtle defense of his investigators for properly executing their mission. The man who had just spent two years investigating and prosecuting criminal interference in a U.S. election once again was urging U.S. citizens essentially to do their homework and skip the CliffsNotes.

To contact the reporter on this story: Greg Farrell in New York at gregfarrell@bloomberg.net

To contact the editors responsible for this story: Jeffrey D Grocott at jgrocott2@bloomberg.net, Winnie O'Kelley, David S. Joachim

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