Attorney General William Barr’s summary of special counsel Robert Mueller’s report is already being interpreted in conflicting ways. In a letter to Congress on Sunday afternoon, Barr conveyed that Mueller “did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia” in the 2016 election. According to Barr, on the question of whether President Donald Trump obstructed justice, the special counsel’s report neither concludes that the president committed a crime, nor exonerates him. But Barr and Deputy Attorney General Rod Rosenstein concluded themselves, based on Mueller’s report, that there is not enough evidence to charge Trump with obstruction. By Sunday evening, the president and his fans were celebrating. “No Collusion, No Obstruction, Complete and Total EXONERATION. KEEP AMERICA GREAT!” tweeted @realDonaldTrump. But many of his critics argued that it is impossible to say whether Trump is wholly innocent without seeing the underlying information in Mueller’s report—not to mention that other investigations into Trump’s dealings are ongoing.

So, what should we believe now that we’ve gotten a glimpse into Mueller’s findings? Politico Magazine surveyed some of the smartest legal minds out there—prosecutors, professors and more—and asked: Is the president in the clear? Here’s what they told us.




***

‘If there is any exoneration on the question of whether Trump obstructed justice, it has been done by Barr, not by Mueller’

Neal Katyal was acting solicitor general under President Barack Obama. Currently, he is a lawyer at Hogan Lovells, a professor at Georgetown University and the faculty chair of the Institute for Constitutional Advocacy and Protection (“ICAP”).

Individual Number 1 has not been exonerated. Barr’s letter says nothing about the New York investigations into campaign finance, nor the many other investigations into the Trump organization. Barr’s letter even acknowledges that Mueller’s report “does not exonerate” Trump. If there is any exoneration on the question of whether Trump obstructed justice, it has been done by Barr, not by Mueller. And Barr’s actions in this respect will raise very serious concerns on the Hill.



***

‘We need many more details’

Mimi Rocah is a distinguished fellow in criminal justice at Pace Law and a legal analyst for MSNBC and NBC News.

I’m not satisfied at all with Barr’s summary—it leaves too many unanswered questions. And so, I do not think anyone can credibly say right now that Trump has been “exonerated” in the way that Trump would like to claim. In particular, it seems that a lot of prosecutorial discretion was used by Barr and Rosenstein to conclude that Trump did not commit the crime of obstruction of justice. They put reliance on the fact that no underlying crime was established. But prosecutors charge obstruction even without an underlying crime frequently. And the conclusion that his obstructive behavior was “without a nexus to a pending or contemplated proceeding” seems odd in the face of an ongoing FBI investigation. We need many more details to understand those conclusions. Even the statement as to the Russian conspiracy is vague—the “investigation did not establish that members of the Trump campaign conspired or coordinated” with Russian about the election. What does “did not establish” mean? I have consistently said that I would have faith in Mueller’s findings and conclusions. But we don’t have those yet.



***

‘Mueller … performed a disservice to the American people’

Jimmy Gurulé is a professor of law at the University of Notre Dame, a former federal prosecutor and assistant attorney general for George H.W. Bush (his boss was William Barr).

In addition to authorizing Mueller to investigate whether Trump and members of his presidential campaign colluded with the Russians to interfere with the 2016 presidential election, the order appointing the special counsel authorized Mueller to investigate “any matters that arose or may arise directly from the investigation,” which includes whether the president committed obstruction of justice. By failing to reach a conclusion on that matter and, instead, deferring that issue to the judgment of the attorney general, Mueller failed to carry out his mandate and performed a disservice to the American people.



***

‘A president doesn’t need to commit a crime to commit an impeachable offense’

Elizabeth Holtzman represented New York’s 16th congressional district from 1973 to 1981. She was also district attorney of Brooklyn and comptroller of New York City. She practices law in New York.

Trump was not exonerated of obstruction of justice by Mueller. But that is not the point. The evidence that the president tried to impede and stymie the Mueller investigation is overwhelming. That could be a basis for impeachment, as it was during Watergate. A president doesn’t need to commit a crime to commit an impeachable offense.



***

‘He has been legally exonerated,’ but not yet ‘in the court of public opinion’

Alan Dershowitz is an emeritus professor at Harvard Law School.

The president has been legally exonerated. The special counsel could find no criminal conspiracy with Russia. As to obstruction, the attorney general concluded there was no basis to charge the president, even if the law allowed a sitting president to be charged. But we have to await the full Mueller report to determine whether the president has been exonerated in the court of public opinion.



***

‘The lack of findings of actual president guilt after such an exhaustive investigation cannot simply be brushed aside’

Adam J. White is a research fellow at Stanford University’s Hoover Institution.

After nearly two years of investigation, the special counsel evidently ended his investigation with no indictments of Trump or campaign officials for any of the alleged misdeeds that triggered the original investigation. Many of Trump’s critics will conclude that the special counsel’s quiet conclusion clarifies nothing—that Trump has not proved his own innocence, has not proved a negative as to any “corrupt intent” in some of his public actions as president. The attorney general’s short letter certainly doesn’t foreclose this line of continued attack on the president.

But it was an exhaustive investigation: “more than 2,800 subpoenas … nearly 500 search warrants … more than 230 orders for communications records” and “approximately 500” witness interviews. The lack of findings of actual president guilt after such an exhaustive investigation cannot simply be brushed aside. Whatever arguments remain, all of us should take this moment seriously. This should be a moment of bipartisan reconsiderations:

The president’s supporters should reconsider assertions that the special counsel’s investigation was anything less than legitimate and even-handed. And the president’s critics should reconsider their assertions that the president’s actions were corruptly intended acts of “obstruction of justice,” rather than simply defensive actions by a president who believed himself an innocent and wrongly accused man. They should also reconsider any hope that a deus ex machina in the Justice Department might punish a political opponent and discredit the millions of people who voted for him; it was a mistake to try to recast a political argument about presidential character into a legal argument about presidential crimes.

For two years, too many of the president’s supporters did not take the special counsel seriously enough. It would be ironic if the president’s critics now make the same mistake.



***

‘It is far too premature to say … without first examining the report itself’

Miriam H. Baer is professor of law at Brooklyn Law School.

No, this report does not “exonerate” the president if one understands the word to mean “demonstrating one’s innocence.” According to the summary letter transmitted to Congress, the special counsel determined that there was insufficient evidence that established a conspiracy between members of the Trump campaign (and/or Trump himself) and the Russians who attempted to interfere in the 2016 presidential election. More interestingly, the report apparently declined to conclude, one way or the other, whether Trump obstructed justice. Instead, it laid out all of the facts, so that others could make such a conclusion. Barr and Rod Rosenstein then jointly decided that Trump’s behavior fell short of obstruction because obstruction requires evidence of corrupt intent and a “nexus” between the obstructive conduct and the relevant “proceeding” that conduct is intended to obstruct. In other words, if I lie to you, hoping you might, at some point, repeat that lie in a grand jury proceeding, my behavior probably isn’t obstruction because there isn’t enough of a “nexus.” On the other hand, if I lie to you knowing you have been subpoenaed to testify on a particular topic (and my lie relates to that topic), then my behavior has the “natural and probable effect” of interfering with the administration of justice.

As one can see from the above discussion, obstruction of justice depends heavily on how one views competing sets of facts. For all those reasons, Congress and the general public will want to see as much of the special counsel’s full report as possible, particularly that part of the report that lays out the timeline regarding any purported obstruction of justice. The president and his allies might feel vindicated by this summary, but it is far too premature to say that without first examining the report itself and, to the extent possible, its underlying documentation.



***

‘The focus … should be on whether Trump’s economic or other personal interests make him beholden [to] … foreign powers whose interests do not align with ours’

Laurence H. Tribe is Carl M. Loeb University professor and professor of constitutional law at Harvard Law School.

As Barr’s summary itself conceded, the president hasn’t been “exonerated.” But that’s not how the nation is likely to see it. Although the House Judiciary Committee must nonetheless call Barr to testify, and must demand to see the full Mueller report including the underlying evidence, I think the focus—as Representative Adam Schiff has stressed for some time now—should be on whether Trump’s economic or other personal interests make him beholden, now and going forward, to Russia or Saudi Arabia or other foreign powers whose interests do not align with ours.



***

‘We do not merely ask our presidents to avoid criminal conduct. We should hold them to a higher standard of ethical conduct’

David Cole is national legal director of the ACLU.

The report’s very different treatment of the collusion issue and the obstruction-of-justice issue is telling. While Mueller reportedly did not find that anyone in the Trump campaign colluded with the Russians’ interference in the 2016 elections, his report pointedly declines to exonerate Trump on charges of obstruction of justice. Instead, it details the facts on both sides of that issue and makes no judgment. While Barr and Rosenstein have gone further and concluded that there is insufficient evidence to establish that Trump obstructed justice, surely the American people have a right to judge for themselves. We do not merely ask our presidents to avoid criminal conduct. We should hold them to a higher standard of ethical conduct. Criminal responsibility is only one form of accountability. Political accountability is another, and it is the lifeblood of democracy. The American people deserve to know both the facts underlying Russia’s interference in the 2016 election, and any facts bearing on the president’s possible attempts to interfere with the investigation.



***

‘Barr’s conclusions are not credible’

Jennifer Taub is a professor of law at Vermont Law School.

The president has not been exonerated by special counsel Mueller. And, that is what matters. Quite significantly, when addressing the obstruction of justice investigation, the special counsel did not, in the attorney general’s words, “draw a conclusion—one way or another—as to whether the examined conduct constituted obstruction.” Barr also directly quoted Mueller, writing, “The Special Counsel states ‘while this report does not conclude that the president committed a crime, it also does not exonerate him.’” Instead of leaving that finding as is, perhaps as a roadmap or referral by Mueller to Congress, Barr took it upon himself to make the determination on obstruction. While he was free to make that choice, it did not belong in this letter purporting to summarize the Mueller report. That conclusion is not, and should not be, treated as part of Mueller’s report. In short, Barr’s conclusions are not credible. Remember, Barr lobbied for his job in the Trump administration in 2018 by submitting an unsolicited, 20-page legal memo on why the president had not obstructed justice. The fix was in when Trump replaced his first attorney general, Jeff Sessions, with Matt Whitaker (in an acting capacity) and then Barr. This is a sad day for the rule of law. Furthermore, the president has not been exonerated by any of the other prosecutors who are examining his conduct in connection with hush money payments made in violation of federal election law or related to his inaugural campaign.



***

‘It is a wholesale condemnation of Russia … which raises significant questions about why the president continues to consider that a non-issue’

Paul Rosenzweig is a senior fellow at the R Street Institute and former deputy assistant secretary for policy at the Department of Homeland Security.

The report is certainly an exoneration of the president and his campaign on the allegation that they coordinated with or conspired with the Russian government. It is more equivocal on the question of his personal post-election obstructive conduct. And it is a wholesale condemnation of Russia and the Russian government for their activities, which raises significant questions about why the president continues to consider that a non-issue. The report also appears to be a significant condemnation of the president’s team—including his campaign manager; deputy campaign manager; personal attorney; and first national security adviser, all of whom have pleaded guilty to or been convicted of serious criminal charges.



***

‘Not having an indictable set of facts does not equal innocence’

Jill Wine-Banks is a former assistant Watergate special prosecutor, former general counsel of the U.S. Army and former member of the Department of Defense Judicial Proceedings Panel Subcommittee on Sexual Assault in the Military.

In my opinion, Trump was not exonerated of either obstruction of justice or conspiracy with Russia. Claims of total exoneration are pure spin.

Regarding obstruction of justice, even Barr’s letter to Congress admits that the Mueller report “does not exonerate” Trump. Mueller, according to Barr, set out evidence on both sides of the question of obstructive activities and the president’s intent. Despite the existence of evidence of guilt, Mueller, for reasons we can only hope will be clear when we see his full report or in subsequent congressional testimony, decided to leave the decision to someone else. Barr took it upon himself to be the decider, although in Watergate and Whitewater—and I believe under the Constitution—that decision belonged to Congress. It seems strange that he would evade deciding unless he were passing the facts to Congress. This is especially true in this case, where Barr (in collaboration with Rosenstein) had already demonstrated his bias and predetermination that the president could never be guilty of obstruction, no matter what the evidence showed. That opinion should have required his recusal from making the decision now.

Similarly, regarding conspiracy or coordination with Russia, Barr suspiciously uses a partial sentence from the Mueller report to support his conclusion that the “Special Counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election.” The actual sentence from Mueller’s report, however, can be read as supporting a different conclusion; it reads as follows: “[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.” That seems to be carefully crafted language to say only that there was not sufficient evidence to justify an indictment. Not having an indictable set of facts does not equal innocence. Even a not guilty verdict after trial would not do that. All it means is there was not proof beyond a reasonable doubt of sufficient facts to establish every element of a crime. That is not the same as being innocent or exonerated. Nor does it address whether there is impeachable conduct.

Thus, Trump is not “totally exonerated.” Quite the contrary, Barr’s letter means Congress must step in and do its duty. Congress must review the exact words of the Mueller report, not Barr’s interpretation and summary. They must review all the supporting evidence and ask why Mueller did not make the decision on obstruction and whether he intended Barr or Congress to make that judgment, as Congress did in impeachment hearings in the cases of Presidents Richard Nixon and Bill Clinton.



***

‘We need to see the entire report to know what evidence of collusion was found’

Richard Painter is a law professor at the University of Minnesota and former chief White House ethics lawyer from 2005-2007.

According to the attorney general’s summary, the Mueller report left the obstruction of justice question open. We need to see the entire report to see what the evidence is. The summary also states that there was not a criminal conspiracy between Trump campaign officials and the Russians. That is a different issue from whether there was collusion that did not rise to the level of a provable crime. Once again, we need to see the entire report to know what evidence of collusion was found, in addition to that which we already know: the Trump Tower meeting, the “coffee boy” and his Russian handler, Roger Stone, WikiLeaks, etc.



***

‘The question still remains open as to why so many in his campaign lied … if there was nothing to hide’

Laurie L. Levenson is professor of law and David W. Burcham chair of ethical advocacy at Loyola Law School. She was formerly an assistant U.S. attorney in Los Angeles.

I don’t think that the president has been exonerated, although he is more out of the woods today than he was before Barr issued his executive summary. Here is what we know: First, there was absolutely Russian interference with the 2016 election. It came in the form of disinformation and hacking. Although those efforts might not have been coordinated with anyone in the Trump campaign, the question still remains open as to why so many in his campaign lied about it if there was nothing to hide. Second, we know that Mueller was uncomfortable in finding no obstruction of justice. He punted on that decision. Barr and Rosenstein said there was not enough evidence to seek such a charge, but that is a question that I think Congress will continue to explore. Without the underlying evidence for the report, it is hard to know. It is also hard to know since Trump himself was never questioned by Mueller. So, the bottom line is that the debate over the report will continue. It is not a clean bill of health for Trump, but I am sure he and his team are relieved.



***

‘The conversation will now shift from the criminal lens to the political one’

Alex Whiting is a professor at Harvard Law School focusing on domestic and international criminal prosecution issues, and a former federal prosecutor.

The Mueller report certainly exonerates Trump on the collusion allegations, and it makes no judgment on obstruction. However, the attorney general has reviewed the obstruction facts and has concluded that there is no basis for criminal charges. While there may be debate on this point once the facts are made public, the reality is that obstruction cases are famously difficult, particularly when there are no charges pertaining to the underlying conduct. The conversation will now shift from the criminal lens to the political one: Even if Trump’s actions were not criminal, were they wise? Did they respect norms of good governance? Were they good for the country?



***

‘There is incriminating information in the full report but not enough to charge’

Kimberly Wehle is a professor of law at the University of Baltimore, former assistant U.S. attorney and associate independent counsel, and author of the forthcoming How to Read the Constitution—and Why (Harper 2019).

According to the attorney general’s summary, the investigation “did not establish” conspiracy or knowing coordination between the Trump campaign and Russia. But the summary also states, regarding the possibility of obstruction of justice, that while the Mueller report “does not conclude that the President committed a crime, it also does not exonerate him.” The question for Mueller was whether his team could meet the burden of proof. That is a legal threshold—not a political one. The attorney general’s statement suggests there is incriminating information in the full report but not enough to charge and prove any additional crimes beyond a reasonable doubt.



***

‘We should not … conflate the summary with the report itself, or the even more important counterintelligence investigation beyond the scope of the proceedings aimed at criminal prosecution’

Justin Levitt is a professor of law at Loyola Law School and former deputy assistant attorney general in the Civil Rights Division of the Department of Justice.

To ask the question “has the president been exonerated” by the still-unreleased Mueller report is to ask the wrong question. The special counsel’s charge was not to convict or exonerate the president; it was to investigate Russian interference in the 2016 election. Even without seeing the final report, we know that the investigation found substantial interference, some of it in violation of U.S. law. That should be troubling to every American. We know that Russia has continued its efforts to interfere with elections, in America and elsewhere—and that should be troubling to every American as well.

The attorney general’s summary says that the special counsel did not find that members of the Trump campaign conspired or coordinated with the Russian government in their interference, and that is quite welcome news. But the relentless assault on established political norms by the president and his campaign team, including publicly and covertly welcoming foreign interference in the election process, may well have encouraged that misconduct even if it did not amount to conspiracy. Similarly, though the AG found that the evidence amassed is insufficient to conclude that the president committed criminal obstruction of justice, the president and some of his supporters have unquestionably degraded the norms insulating criminal investigation from political interference by the executive. Both of those developments should be troubling to every American as well. And they must be addressed, even if the criminal process is not the proper forum for taking those steps.

The attorney general is to be commended for his timely release of a summary of the report, and his promise of further timely disclosure once truly confidential grand jury material is redacted. We should not, however, conflate the summary with the report itself, or the even more important counterintelligence investigation beyond the scope of the proceedings aimed at criminal prosecution. It would be a great mistake to rest on the summary instead of digesting the facts to be disclosed in the report itself, and it would be an even greater mistake to think that the absence of further prosecutions within Mueller’s orbit means that our work is done with respect to securing the elections of the future against undue and unlawful interference.



***

‘The president has been exonerated in the narrowest of views’

Bradley P. Moss is a partner at the Washington law office of Mark S. Zaid, P.C. and deputy executive director of the James Madison Project.

The president has been *exonerated* in the narrowest of views. The campaign did not directly or knowingly collude with Russian nationals in a manner that would implicate criminal liability. Congress will no doubt want more details on the obstruction angle, but Mueller put a nail in the coffin of the collusion theory. The biggest threat to the president now remains what is still coming from the Southern District of New York prosecutors.



***

‘Barr’s letter does not answer [fundamental] questions’

Kathleen Clark is a law professor at Washington University in St. Louis specializing in legal ethics.

Barr’s letter to Congress raises more questions than it answers.

A Justice Department regulation requires a special counsel report to explain all “prosecution or declination decisions.” In other words, Mueller’s report must contain an explanation for Mueller’s decision not to prosecute Trump for obstruction of justice. Why did Mueller decide not to prosecute the president for obstruction? Barr’s letter does not answer this fundamental question.

Barr says that the special counsel “did not draw a conclusion—one way or the other—as to whether” Trump engaged in obstruction of justice. Why did the special counsel decide not draw such a conclusion about possible obstruction by the president? Did Mueller leave that question for Congress to decide? Did Barr ask the special counsel not to draw such a conclusion? Again, Barr’s letter does not answer these questions.

The public needs to see Mueller’s report and its underlying documentation, and Congress needs to hear from Mueller.



***

‘Institutions and processes held fast’

Rick Pildes is a professor at NYU School of Law and author of Law and the President.

No president has ever attacked the institutions that administer justice in the United States the way this president has, yet those institutions and processes held fast. Despite the president’s apparent desire at various points to have Mueller fired, the message was conveyed effectively to him, through whatever private as well as public means, that his interference in the investigation would not be tolerated. And Trump’s appointees at the Justice Department did not interfere with the Mueller investigation. We should also recognize the virtues of experienced, seasoned professionalism in government—qualities too quickly dismissed these days. Mueller’s commitment to stay silent and let the facts speak for themselves, even in the midst of unbelievable public pressures, reminded us how a professional investigator and prosecutor ought to carry out his or her responsibilities.

Conspiring with the Russians to throw the 2016 election his way was the most serious potential criminal charge looming over the Trump presidency. That issue potentially implicated not just the president personally, but the integrity of the election itself. With that issue seemingly put to rest, we will have to await further details from the special counsel’s report.



***

‘The report does not exonerate the president with respect to whether he obstructed justice’

Marisa Maleck is a senior associate at King & Spalding and a former Supreme Court clerk for Justice Clarence Thomas.

The report appears to exonerate the president on whether he or his campaign conspired or otherwise coordinated with any Russians with respect to interfering with the 2016 election. The report does not exonerate the president with respect to whether he obstructed justice. Nevertheless, the attorney general (along with the deputy attorney general) concluded that there is insufficient evidence of obstruction and will not seek prosecution.



***

‘I’m relieved that the investigation is now over’

Orin S. Kerr is Frances R. and John J. Duggan distinguished professor at the University of Southern California Gould School of Law.

My primary reaction is relief. I’m relieved that Mueller apparently found no evidence of conspiracy or coordination between the campaign and Russian state actors to influence the election. I’m relieved that this critical issue was investigated by the best in the business. I’m relieved that the investigation was not cut short. And I’m relieved that the investigation is now over.