The New York Times has reported that the full version of Special Counsel Robert Mueller’s final report on his investigation into links between the Trump campaign and Russian government—and whether the President obstructed justice—will be released tomorrow. The takes will descend like a swarm of flying, know-it-all monkeys. But as we learned (or should have) from the rushed, incomplete, and often inaccurate media analysis of Attorney General William Barr’s initial four-page letter summarizing the report, the monkeys—unless they’re U.S. attorneys—don’t know jack.
The report, said to be about 400 pages not including evidentiary exhibits, will be dense and complicated, and written in the precise language of the law that Mueller has used in all of his indictments. Any analysis worth your time will take time. Because even the NYT headline cited in the first sentence of this very article isn’t entirely accurate: It doesn’t mention this won’t be the full report. “Full” is journalistic shorthand for “all the pages, but not all the information”—after all, there will be many, many redactions—and journalistic shorthand is one of the key things we need to watch out for when reading any reports. (The Washington Post also didn’t mention this in its headline.)
Though journalistic shorthand might be accurate in a general sense, it’s not necessarily fully accurate—not the capital-T truth, which will necessarily be too complex to fit in a headline, a tweet or thread, or even first-take reports. Luckily, outlets have already issued internal guidance checking themselves, but we know sadly these days that the hot take is all too often louder, faster, and more important than the truth.
With that in mind, here are nine things to remember when the monkeys descend.
If the people you’re reading or listening to aren’t lawyers—and perhaps even if they’re not specifically a federal prosecutor or former federal prosecutor—they almost certainly don’t know what they’re talking about. A lot of people have tracked this story carefully for years, and a lot of them will speak with authority, some degree of expertise and reliability, and often a great deal of knowledge. But that doesn’t mean they will or can grasp the report in a matter of minutes or hours. They probably won’t. For what it’s worth, you probably won’t, either.
Don’t listen to anyone who draws any conclusions about the report without reading the whole thing. And don’t draw conclusions yourself. Don’t even put full stock in early reports. Again, they’ll likely contain shorthand that obscures legal terms or gets them outright wrong.
This is a big problem. Major press outlets rightfully have our trust, but we need to realize they’re human institutions subject to human failings.
For instance, lawyers are quick to point out the major difference between the common shorthand of “collusion” versus the legalese “coordination/conspiracy.” Trump loves to say Mueller found no collusion, but Mueller wasn’t investigating collusion—that’s not a crime. Acts of collusion would be evidence of the crime he investigated: Criminal conspiracy. In fact, Mueller probably won’t use that word in the report—either in Trump’s favor or against it—unless he wants to clarify the confusion for the public.
So this will be something of a nightmare. The Trump side has brilliantly deployed the “no collusion” argument, because they knew Mueller had to prove conspiracy, not collusion. They also knew Mueller likely wouldn’t even use that word.
Still, those two words got conflated again and again, not just by Trump partisans, but by reliable media outlets and pundits as well. In fact, all major U.S. print outlets blared headlines reading variations on “no collusion” or “Mueller finds no conspiracy.” (We don’t know yet what he “found”; we know he couldn’t “establish” criminal conspiracy beyond reasonable doubt.) The result: A lot of Americans think collusion is the crime. But again, it’s not.
Mueller apparently didn’t think he had enough evidence to prove a case of criminal conspiracy involving two specific subjects beyond a reasonable doubt. But that doesn’t mean he doesn’t have any evidence at all. And again, if such evidence exists, that evidence would likely be collusion. Not evidence of collusion, but evidence of a crime that apparently didn’t meet the standard of criminal conspiracy.
But you don’t write a 400-page report if you don’t have any evidence at all. In fact, one of the biggest bombs to come out of this report might be that Mueller shows some hard evidence that will destroy the “no collusion” narrative. (Hint: There’s a ton of evidence of collusion out there already.)
The report will not exonerate the President. Period. We know this because Mueller himself said he couldn’t exonerate the President. (Another media misfire: Barr placed this sentence in the “obstruction” section of his letter, so the media assumed that’s where it was in the report—but we don’t know that for a fact and it shouldn’t have been reported like that.)
In reference to conspiracy (“collusion”) itself, we only know that Barr quoted a partial sentence from the report: ”[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.” There was something at the beginning of that sentence, but we don’t know what it is. It might complicate that apparently decisive conclusion. Speaking of…
If you’re reading the report yourself—which anyone should do before stating any conclusion—you should cross-check the report with the incomplete sentences Barr quoted in his initial letter. There were a lot of them, and you can find them all here.
Why? Two reasons. First, we’ll have a more complete picture of a clearly complicated series of conclusions. Second, we can see what Barr chose to cherry-pick and why. That’s important because Barr’s summary raised skepticism about his motives. And that itself is important because though we’ll have a more complete picture on Thursday, as mentioned above we won’t have a “full” picture. Barr will have redacted a lot of information. Which brings us to:
Barr will redact information. The question is what he redacts and why. Don’t give full credit to any analysis or hot take that doesn’t account for this. It might be critical to understanding what our President really did.
For instance, Barr will redact a wide range of information for different reasons: it might be pertinent to national security; it might compromise sources and methods; it might be grand jury information; it might be related to other ongoing investigations; and, importantly, it might be because of executive privilege. The trick, of course, is that the report almost certainly won’t explain the reason for each redaction. This means Trump could have censored parts of the report himself by claiming executive privilege.
The obstruction section, of course, likely wouldn’t need any redactions at all except for executive privilege. If there’s a lot of information missing in critical places, it’s likely Trump blocked it. We know from Barr’s letter, for instance, that Mueller cited some evidence of obstruction that’s been previously reported. That means there are things we don’t know about. And a recent Axios exclusive suggests that some of that new evidence might be from what former White House Counsel Don McGahn told Mueller about his conversations with Trump. Those conversations might be redacted because Trump claimed executive privilege.
The questions about what Barr chooses to redact are also important because he’s squandered public trust.
This isn’t just a biased journalist saying this. This is a federal judge.
U.S. District Court Judge Reggie Walton said this during a hearing this week about a Freedom of Information Act lawsuit requesting full and unfettered access to the Mueller report: “The attorney general has created an environment that has caused a significant part of the public … to be concerned about whether or not there is full transparency.” And reports that people on Mueller’s team themselves felt betrayed by Barr’s initial letter seem to have more and more merit.
Again, Barr has final say over what we read on Thursday. And in 1989, he omitted sections of a DOJ report that misled Congress.
One big question: What did Mueller intend with this report? We don’t know why he declined to prosecute Trump for obstruction—Barr made that decision, not Mueller. It’s quite likely he wanted to leave that up to Congress. Mueller might not say that directly in his report, but he very well might. He might also allude to it, or allude to something like “political resolutions,” which means consideration for impeachment.
Bottom line, it seems apparent at the very least that the President engaged in an ongoing attempt to obstruct justice. Nixon and Clinton were both impeached for this. Trump should be no different, otherwise we might never investigate another President again—and that’s not a good thing. The President cannot be above the law, and cannot be exempt from the most powerful check Congress has on the executive branch. This leads me to believe we’ll see a lot redacted from the obstruction part of the report, and if so, that should only raise questions.
We can’t make the same mistakes yet again. No one should conclude anything until we have all the information about it. Let’s not pretend we’re more clever than anyone else.