News and Commentary

ELLIS: The Mueller Report Is Legally Inconsequential, Politically Loaded

Special Counsel Robert Mueller’s 448-page report provides nothing more important than one fact: no one affiliated with the Trump campaign colluded with Russia; the central premise predicating the investigation was false.

Everything else in the report is legally inconsequential, including the truism that “while this report does not conclude that the President committed a crime, it also does not exonerate him.”

No prosecutor can “exonerate” someone who has not been charged with or convicted of a crime. Not charging someone is the closest Mueller could possibly come to exoneration.

Everything in the second volume of the report is an explanation, by both facts and legal analysis, of why the President was not charged with obstruction of justice — nothing more and nothing less. No amount of mental gymnastics can overcome that fact, not even the extraordinary display by the author of the second volume.

The author turns on its head the well-established Office of Legal Counsel determination that a sitting President cannot be indicted. Rather than act as a limit on prosecutorial power, the author uses it for exactly the opposite of that intended purpose, presenting it as a license to refuse to indict but yet still “not exonerate.”

In substance, the entire second volume merely fleshes out 10 separate matters that were already public knowledge and that have been the subject of extensive media coverage.

To be sure, we know about the turmoil, disorder, and poor decision-making within the White House in greater detail than we did before.

For instance, the President reportedly used the “F-word” and exclaimed that his presidency was “over” when he was told of Robert Mueller’s appointment.

The report also says that the President asked Attorney General Jeff Sessions to unrecuse himself and retake control of the investigation, and also that he tried to have Special Counsel Mueller removed.

According to the report, his concerns over the initial FBI probe into Russian election interference seemingly influenced President Trump’s decision to fire FBI Director James Comey, although the Mueller report admits that this was a “facially valid” exercise of the President’s authority.

What we don’t know from reading the report, however, is anything that the President’s detractors didn’t already assume, or anything his supporters were not already ready to forgive.

So what we’re left with is not a prosecutorial question — those have been asked and answered — but rather a political question.

In that sense, the report is more akin to one of the White House tell-all bestsellers such as Michael Wolff’s Fire and Fury than a criminal investigation — which normally would not release evidence against people who have not been charged with a crime. In fact, The Washington Post has already announced plans to sell copies of the report in a fashion very much reminiscent of those books.

Some have suggested that it is now time to “move on” after two years of investigation, $30 million taxpayer dollars wasted on what amounts to an exercise in opposition research, the personal and financial ruination of Mueller’s targets, and irreparable damage to the social fabric of our country.

That would be wrong. The time for “moving on” was the moment Special Counsel Mueller realized that no one had colluded with the Russian government’s efforts to interfere with the 2016 election.

Now, Democrats are pivoting to a character assassination of Attorney General Barr, ostensibly to set up an attack on the forthcoming adjudication of criminal referrals from the Inspector General’s report and possibly Congress. Time to move on—and investigate the investigators.

Jenna Ellis (@realJennaEllis) is a member of the Trump 2020 Advisory Board. She is a constitutional law attorney, radio host, and the author of The Legal Basis for a Moral Constitution.

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