The Mueller Report Will be Gutted Before It Reaches You | Opinion

attorney general barr letter full text
Attorney General William Barr leaves after a meeting at the West Wing of the White House on March 21 in Washington, D.C. Barr on Friday released a letter stating special counsel Robert Mueller finished his investigation. Alex Wong/Getty Images

After several days of uncritically promoting Trump and his allies' misleading party line on the Barr Letter, media has settled down and begun reporting only what we know for certain: that Mueller did not find proof beyond a reasonable doubt of the narrow band of collusive activity known as "conspiracy," though he may yet have found substantial proof of conspiracy and referred to other prosecutors evidence of non-conspiracy collusion; and that there's no documentation for the claim Mueller asked the Attorney General to make a final judgment on obstruction, with the Special Counsel instead appearing to refer a substantial body of obstruction evidence to Congress for its own judgment on the matter of impeachment.

Yet media's gradual about-face from its initial reporting on the Barr Letter merely opens up a new trap for corporate and independent journalists alike: that the upcoming release of the Mueller Report will be seen as the dispositive moment in the Mueller investigation. For a host of reasons, this cannot be and must not be; nearly all those reasons relate to machinations by Trump's allies to render the Mueller Report as close to meaningless as backroom political wrangling can get it.

First, Americans must understand that Attorney General Barr has every authority to ask a federal judge to permit the publication of grand jury transcripts from the Mueller investigation on the grounds that Mueller's work is critical to our rule of law, democratic processes, and national security. It is hard to imagine a federal case in which the public's right-to-know is greater than in the case of the Trump-Russia investigation; this is especially so given that most of the grand jury transcripts the public might wish to see involve testimony by high-profile politicians and politicos who chose to place themselves in the public square by working for a presidential campaign and/or (thereafter) a president. These are not shy, retiring private citizens who never thought their words or actions could reach a national audience.

And yet Trump's Attorney General—who espoused, in a pre-nomination memo that amounted to a job application, a view of presidential power rendering the office all but above the law, with presidential obstruction of justice becoming a legal impossibility—is refusing to request even a single page of grand jury testimony for Americans to see.

Second, Barr is removing from Mueller's unreleased report a good deal of its counterintelligence information, even though the investigation was in substantial part a counterintelligence probe. Mueller's findings on the key question in a counterintelligence review of this sort—whether an individual is compromised by a foreign government, and therefore a national security threat—could well be dispositive on whether the Trump presidency can or should continue. This remains the case even if the separate issue of criminal liability for the narrow crime of conspiracy has been resolved in the negative.

While proof beyond a reasonable doubt (roughly analogized to 90 percent or greater certainty that someone committed a criminal act with the requisite criminal intent) may be required in criminal prosecutions, because national security is both more dire and encompassing than criminal liability, we do not require 90% certainty to consider an intelligence finding actionable. If Mueller found with either "moderate" or "high" confidence that Trump has been wittingly or unwittingly compromised by Russia—due to blackmail, past business transactions, anticipated future earnings from Russian investments or associations, or some other conclusive toppling of his capacity to exhibit loyalty to the U.S. in dealings with Russia—the president cannot remain president. It's that simple.

Nevertheless, Barr appears poised to keep from Americans a Mueller finding far more significant to the future of the nation than whether Trump is chargeable with the crime of conspiracy. Indeed, given that there never was any possibility Mueller would recommend Trump be indicted for conspiracy—conventional wisdom and DOJ advisory opinions have it that a sitting president can't be indicted—it was in fact Mueller's still-unknown counterintelligence findings America has really been waiting for. Even if Mueller referred his counterintelligence inquiry elsewhere due to his inability to complete it on the same timeline as his criminal probe, and even if for some reason it cannot be fully disclosed to Americans yet, that's something the nation has a right to know.

Third, Barr is removing all evidence from the Mueller Report regarding ongoing investigations into Trump, his family, and his aides and advisers, a decision facially consistent with DOJ regulations but which makes no sense in this instance. Mueller is known to have farmed out many of his investigative threads—including some, like a Saudi-Emirati-Russian bribery investigation now in the Eastern District of New York, that could lead to a finding of non-conspiracy criminal collusion—so issuing a "final" Mueller report without indicating such inquiries are active is sure to mislead the public as to the present course of Mueller's investigative leads. Just so, Mueller's investigation at so many points intersected with one or more of the twenty ongoing federal and state investigations into the Trumps and their associates that to present Mueller's Trump-Russia findings without that content is to riddle with unnecessary holes what is at present a presumptively coherent block of evidence.

Fourth, Barr is forbidding Mueller's final report from including information that could embarrass any person or harm their reputation—a heavy-handed redaction strategy for a case in which every word uttered under oath could fundamentally alter the relationship of a country with its government. Many Americans don't realize that most court records are public, and nearly all live criminal proceedings are, so the idea that regular Americans' testimony as to significant crimes (or frankly any crimes at all) needs to be hidden from public view is extraordinary.

Most troublingly, Barr has issued a now-infamous letter that spoke to the issue of obstruction though it wasn't Barr's place to do so—as Mueller's obstruction findings were clearly intended for Congress to dispose of in one way or another. There's no reason for Mueller to spend two years investigating obstruction as a neutral arbiter, merely to give over final judgment on the question to a political appointee who previously denigrated the Special Counsel's entire investigative enterprise as a travesty. Those wondering why there ever was a "Barr Letter" summarizing Mueller's "principal conclusions"—when DOJ regulations don't require anything of the sort, merely a few perfunctory administrative representations to Congress—should look no further than Barr's addition to Mueller's "principal conclusions": the Attorney General's own unasked-for opining on a matter properly in Congress's purview.

American media may be evolving into a more legally, factually, and terminologically accurate brand of reporting on Mueller's investigation—and the twenty Trump-related investigations still ongoing—but Americans mustn't misinterpret that return to form as something other than what it is: a course of journalism that still wrongly weights Mueller's summary of his work over his underlying investigative case file. It's in the latter unredacted documents—and similar documents sheathed in federal and state investigative case files around the country—that the important truths about our president and his inner circle reside. Voters should demand nothing less than the same level of access to this information that they (in some cases directly, in some cases through their representatives) had during the Starr investigation of former President Clinton. Our rule of law and our democracy demands nothing less.

Seth Abramson is Assistant Professor of Communication Arts & Sciences at the University of New Hampshire and author of Proof Of Collusion (Simon & Schuster, 2018.) On Twitter @SethAbramson​

The views expressed in this article are the author's own.​​​​​​