In his first letter after receiving the Mueller report, Attorney General William Barr accurately quoted it as saying that "the investigation did not establish" that the Trump campaign "conspired or coordinated with the Russian government in its election interference activities."
But the opposite is also true: The Mueller report does establish that, in fact, members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.
How is this possible? It's the difference between the report's criminal prosecution standard of proof "beyond a reasonable doubt" and a lower standard — the preponderance standard of "more likely than not" — relevant for counterintelligence and general parlance about facts, and closer to the proper standard for impeachment.
There is confusion about the Mueller report's fact-finding because he used the wrong coordination standard, obstruction probably obscured the evidence of crimes, and the summary was unclear about evidentiary standards. The report's very high standard for legal conclusions for criminal charges was explicitly proof "beyond a reasonable doubt." So the report did not establish crimes beyond a reasonable doubt. But it did show a preponderance of conspiracy and coordination.
The Mueller report is best understood as two reports, and not just in its organization of one volume on Russia and one on obstruction. Each volume is one report on facts, and another on applying criminal law to those facts. When the report explains its prosecution decisions and interprets the legal questions of conspiracy and coordination, it repeatedly clarifies that its standard is "whether admissible evidence would probably be sufficient to obtain and sustain a conviction."
The "prosecution and declination decisions" part of the report uses proof "beyond a reasonable doubt" 10 times, particularly with respect to declining indictments for Russian contacts crimes for Paul Manafort and Donald Trump Jr.
The report is also a fact-finding investigation. In its introductory statement on evidence, it explains, "when substantial, credible evidence enabled the Office to reach a conclusion with confidence, the report states that the investigation established that certain actions or events occurred." This evidentiary standard seems similar to the "preponderance of the evidence," the more-likely-than-not standard in civil cases and arguably for an impeachment.
By the preponderance of evidence standard, the report contains ample evidence to establish conspiracy and coordination with the Russian government, sometimes through intermediaries, other times through a Russian spy.
Contrast the Mueller report with the Starr report on President Clinton, which framed itself as an impeachment referral, not a prosecution decision, and thus avoided having to reach the more daunting standard of proof beyond a reasonable doubt. It applied a lower standard of "substantial and credible information" and titled each of its 11 grounds of impeachment in these terms, even when they invoked (or evoked) the criminal conduct of "lying under oath" and "obstruction of justice."
The Mueller report, holding itself to the higher standard, concluded that it did not find proof beyond a reasonable doubt of criminal conspiracy with Russia. It also offered an explanation: Lies by individuals associated with the Trump campaign "materially impaired the investigation of Russian election interference." Witnesses deleted emails and used applications with encryption or deletion functions, which also thwarted fact-finding. Part II of the report on obstruction explains why Part I may have fallen short of such a high burden.
Mr. Barr had the analysis backward in his summary letter. The failure to prove an underlying crime does not mean there was no obstruction. The obstruction meant that it became impossible to know whether there was a conspiracy beyond a reasonable doubt — and it impeded the Russian investigation. Mr. Barr then used that doubt to question whether there was the corrupt intent required by obstruction statutes. To the contrary, the preponderance of conspiracy evidence confirms the corrupt intent.
The report's core question of whether the Trump campaign "conspired" or "coordinated" with the Russian government is a difficult legal question for any prosecutor. Criminal campaign finance charges — as opposed to civil — require proof that "a violation must have been committed knowingly and willfully," that the defendant knew he was breaking the law, which is notoriously hard to prove. The "reasonable doubt" problem rightly prevents indictments here, but a preponderance standard is sufficient for an interpretation for public debate based on more-likely-than-not facts.
Even without knowing what is redacted, the report offers "substantial and credible information" of the Trump campaign conspiring or coordinating with the Russian government. Under federal criminal law, "conspiracy" does not require direct proof or explicit words of agreement. It can be proven by action and circumstantial evidence from which the agreement may be inferred. And on campaign "coordination," the Mueller report made a significant omission or oversight on this question when it stated that "'coordination' does not have a settled definition in federal criminal law. We understood coordination to require an agreement — tacit or express."
As the election law expert Paul Seamus Ryan noted, Congress in its 2002 campaign finance law rejected that view: Federal law "shall not require agreement or formal collaboration to establish coordination." The federal regulations followed this command: "Coordinated means made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate," with no need to show any kind of agreement. Expenditures for coordinated communications are considered in-kind contributions, and foreign contributions — public or private — are illegal. In fact, the Federal Election Commission is reviewing a complaint along these lines.
The report states that Rick Gates, a campaign deputy, suspected that Mr. Manafort's Russian associate, Konstantin Kilimnik, was a "spy," a view that he shared with Mr. Manafort (and others). For months, Mr. Manafort informed Mr. Kilimnik about the campaign through internal polling data, even pointing out that Wisconsin, Pennsylvania, Michigan and Minnesota were target states. The Mueller report did not conclude their motives were criminal beyond a reasonable doubt, but by a preponderance in context, the motives were clearly campaign related and likely a coordination with Russia.
Despite being heavily redacted, the report seems to add context to Roger Stone's indictment, implicitly suggesting that Mr. Trump may have directed officials to contact Roger Stone about WikiLeaks, and may have been in contact with Mr. Stone about WikiLeaks. It may not be proven beyond a reasonable doubt that they knew WikiLeaks was an extension of Russian hacking and a Russian campaign, but it is more likely than not a kind of indirect coordination with a foreign government prohibited by law. And Donald Trump Jr.'s continuing contacts with WikiLeaks in September and October 2016, long after the Trump Tower meeting and the July events made its connection to a Russian campaign clear, also were likely a coordination, even if not knowingly proven beyond a reasonable doubt.
This conduct by President Trump, his son and his campaign manager and deputy campaign manager are probably civil violations of coordination for enforcement by the F.E.C. Presidents should not be impeached for civil election violations, but one should still be able to conclude that Mr. Mueller established coordination with the Russian government as a factual matter. And it may have been so egregious that it was a "high misdemeanor," and the obstruction was not faithful execution of the law, especially in light of new historical evidence of its meaning.
High crimes and misdemeanors are not limited to felonies. One does not have to conclude that Mr. Trump committed a felony to vote for impeachment. The key points are that the report should not be interpreted as disproving the core Russian allegations. The opposite appears true, even with the redactions: It shows illegal coordination and conspiracy by a preponderance of the evidence. And this evidence is relevant for further subpoenas, for an impeachment inquiry based on the Russian campaign and for proving obstruction with corrupt intent beyond a reasonable doubt.
New York Times, April 25, 2019. By Jed Handelsman Shugerman. Mr. Shugerman is a law professor at Fordham.
April 26, 2019
Voices4America Post Script. If you have read the redacted Mueller Report, with its 140+ instaces of contacts between the Trump Campaign and Russians, you already know Professor Shugerman has a point. Let the hearings in Congress begin. It is time to #impeachTrump.