Strangest Rollout: After the Mueller report, news outlets were left scrambling and speculating

William Barr (R) on March 21, 2019 in Washington, DC. (Photo by Alex Wong/Getty Images)

The rollout, so to speak, of the highly anticipated report by Special Counsel Robert Mueller, about Russia’s interference in the 2016 presidential election—interference that Mueller’s investigation confirmed—and the Trump campaign’s possible connection with it, was the weirdest news event in memory. The fact that the report itself wasn’t released is contrary to custom: ordinarily, a commission or a prosecutor announces key conclusions and may even take questions from reporters. The release of the  9/11 commission report, about the terrorist attack on New York’s Twin Towers and the Pentagon, was unusual in its own way: the commission issued chapters as it went along, so reporters given an advance copy on release day frustratedly thumbed through it in the press room, looking in vain for “news.” The weight of that report was in the power of the narrative—making it a bestselling book—and those looking for exciting new information missed the point.

Tension over the Mueller report had been building for weeks. In December, Justice Department sources (not the Mueller team) had issued guidance on “deep background” that the report would probably be finished in mid-February. In February, the same sources said that the special counsel’s work would conclude in mid-March. Reporters were on standby starting last Wednesday; those at the Justice Department set up camp. Photographers staked out Mueller’s office for days in an attempt to capture The Man driving to work. (He obliged on a rainy Thursday at 7:15am, wearing a baseball cap.) Then, shortly before 5pm Friday, came the news: the Mueller report had been delivered to William Barr, the relatively new Attorney General. No one outside of a few top Justice officials and, of course, Mueller’s team, had a clue what was in it, though a Justice spokesman let the public know that there would be no more indictments. So much for the widespread expectation that Donald Trump, Jr., would be indicted—an expectation that Jr. had shared publicly. In a brief letter on Friday to the chairs and ranking members of the Senate and House Judiciary Committees, Barr wrote that he would try to notify them of the special counsel’s “principal conclusions as soon as this weekend.” He added that later, he would release other information from the report and—as evasive as he’d been during his confirmation hearings, to the great frustration of Democrats—Barr said that he was “committed to as much transparency as possible.” No one, possibly including Barr, could know what that would mean. All over television Friday night, people talked about the report without having the report, and so they talked around it.

Every news event has its expert of all experts. MSNBC latched onto Neal Katyal—a former acting solicitor general in Barack Obama’s Justice Department, who had written the regulations for implementing the special counsel law under which Mueller functioned. The old rules had lapsed; more to the point: the 1998 report by Kenneth Starr, an independent counsel, on Bill Clinton’s affair with Monica Lewinsky, was so many miles from his original assignment—examining the Clintons’ dealings with the Whitewater Development Corporation—and so salacious, that unprecedented guardrails were placed on special counsel reports. This meant that Mueller had less independence than previous presidential prosecutors did.

On television late Friday afternoon, Katyal pronounced the delivery of the Mueller report “The end of the beginning.” (Meanwhile, Fox’s Brett Baier reminded viewers that no one knew much. CNN had a welter of guests, which confused matters.) Katyal explained that, whatever the Mueller report said, Trump was still vulnerable on other subjects, such as violation of campaign finance laws by arranging hush money payoffs to two women he’d slept with. Michael Cohen, Trump’s longtime private lawyer, has already been indicted by the Southern District of New York for participation in the scheme, and Trump is believed by former prosecutors to have been named an unindicted co-conspirator. The SDNY has charged that the payoff scheme “defrauded” the country to get Trump elected. Which is to say, the president could be charged with a felony.

ICYMI: The post-Mueller rejection of cable news as journalism

Mueller has handed off several cases to the Southern District of New York and other local jurisdictions: How was such an unusually large amount of money raised for Trump’s inauguration—about $107 million, twice as much as for Obama’s second, though Trump’s had far fewer entertainments—and where did all that money go? The SDNY has also looked into Trump’s privately owned businesses and his extensive borrowing from Deutsche Bank. New York State’s attorney general has sued Trump and his elder children for their questionable management of the family’s charity, which was closed not long ago. Some states have sued Trump for accepting “emoluments” from foreign sources—an act barred by the Constitution—mainly through business in Trump’s new hotel in Washington. One thing that has made the journalism about Trump’s legal problems difficult has been that there are so many of them. Watergate was easier to keep straight—and even then, major aspects of it were missed in the ongoing reporting.

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Numerous questions remain: Which country is Trump more loyal to, Russia or the United States? In whose interests has Trump been conducting foreign policy? Why has his agenda so neatly matched Vladimir Putin’s, whom he has defended consistently? (In Helsinki for a summit in July 2018, Trump said that he had greater confidence in Putin on the subject of Russian interference the US election than he did in his own intelligence advisers. The nub of Trump’s statement was often quoted afterward in the press: “President Putin was extremely strong and powerful in his denial today.”) Has Trump been benign toward the leaders of certain authoritarian states—Turkey, Saudi Arabia, the Philippines, among others—because he admires dictators or because he has business deals in their countries? Of course, without seeing the report, we have no answers—but it’s doubtful that Mueller engaged on these points. In general, the public has little understood—and journalists haven’t sufficiently clarified—that the role of the special counsel is  quite a narrow one. Mueller’s mandate was strictly to see if Trump or his associates had broken any laws. The standards are high for establishing evidence “beyond a reasonable doubt.”

As a result, quite a lot of highly troubling behavior by Trump, his family, and his advisors wasn’t in Mueller’s purview. Actions along the lines of those included in Article II—about abuses of power, the most important charge against Richard Nixon, drawn up in 1974 by the House Judiciary Committee—weren’t of concern to Mueller. Representative Jerrold Nadler of New York, the chairman of the House Judiciary Committee, has been more inclined to talk to journalists about the possibility of impeaching Trump than his Nixon-era counterpart, Representative Peter Rodino of New Jersey, was. Rodino was more skilled at seeming disinterested in the subject even as he plotted to bring articles of impeachment against Nixon. Nadler, less able to resist a microphone, reminded reporters on Friday evening that Mueller’s “only concern” was constitutional protections. When his committee investigates Trump, Nadler maintained, “Our job will be to check his impulse to abuse his office to protect himself.” This seemed a bit of a tease, since Nancy Pelosi, the House Speaker, had recently poured cold water on the idea of impeachment in an interview with The Washington Post.

 

Barr’s letter confirming receipt of the report led immediately to much on-air discussion. Would Barr release the actual report and, if so, when? Television news channels had planned for major coverage of the report’s arrival, but since the report hadn’t been released, and Barr said that he’d inform Congress over the weekend of the major findings, networks had a lot of time to fill. So we had nearly an entire weekend of fruitless speculation. If Mueller found this or that, then what? Could Mueller find Trump guilty of obstruction of justice—which had been evident—without also finding him guilty of an underlying crime? The one bit of (albeit unsurprising) news concerned Democrats’ demands for both the full Mueller report and the underlying materials. There were also suggestions—before anyone knew anything—that Mueller and Barr might be called to testify before House committees (in theory, Barr could have a voice in whether Mueller could appear). Having expected the report itself, television producers went ahead with hours and hours of guessing. Bill Maher joked on his show on Friday night, “I just saw a graphic on MSNBC. Breaking: Speculation.”

Newspapers were in a similar bind. There was a big thing to report—Mueller had finished and turned in his findings—and there was also very little to report, since no one, outside those who had worked on it and those in Justice who were now studying it, had a clue what the findings were. Saturday morning’s headlines in The Washington Post: “Mueller wraps up Trump-Russia probe;” and The New York Times: “MUELLER SUBMITS TRUMP INQUIRY FINDINGS,” were as mild as the situation required, but there was a lot of pent-up work in anticipation of the report itself. The Post devoted four pages—plus the lede and off-lede of the front page—to stories about the fact that Mueller had wrapped up his report, but then moved on to other major stories: Trump’s endorsement of Israel’s ownership of the Golan Heights; a dam collapse in Brazil; and follow-up on the massacre of 50 Muslims in New Zealand. The Post’s coverage included fancy graphics on Trump associates already charged and convicted, and on the possible actions that Barr could take. The Times devoted more than the top half of the front page, plus six more pages, to coverage of the non-report. Worthy as much of the material in both papers was, neither had a scrap of news about what Mueller had found. They couldn’t.

The fact that the Justice Department had announced that there were to be no further indictments by the special counsel’s office suggested limited findings, but this wasn’t much noticed amid all the weekend babble. It couldn’t be known then if Mueller would have indicted the president had Justice Department policy allowed him to do so; but the grounds for the policy that a sitting president couldn’t be indicted are  more than a little shaky—drawn up and renewed during the legally challenged presidencies of Nixon and Bill Clinton.

ICYMI: There is no media

On Sunday, news of Barr’s follow-up letter broke at 3:35pm (reporters had been tipped to the approximate time). This changed things a lot, but still left a number of mysteries. Barr had gone over the report with his deputy, Rod Rosenstein, who had overseen the Mueller investigation from the outset (the previous attorney general, Jeff Sessions, having recused himself), to decide what could be said at this point. Journalists reviewing the letter found it difficult to sort out Barr’s interpretation from Mueller’s words.

But there was one highly significant line direct from Mueller: “While this report does not conclude that the President committed a crime, it also does not exonerate him.” This quote was from the section on obstruction of justice. And here was where matters became confused, and controversial, a state bound to last at least until the report and the underlying documents are made public, but unlikely to be settled even then. Since Mueller had declined to decide one way or the other whether Trump had obstructed justice, Barr took it upon himself to declare the president innocent of the charge. The question of whether the president should have been held guilty of obstruction will be the Mueller report’s grassy knoll. (To this day, people argue over whether there had been a second gunman on a grassy knoll in Dallas in November, 1963, who had helped kill John F. Kennedy.) Barr’s claim in his letter that it’s up to him, as the attorney general, to decide whether to charge Trump with obstruction, was apparently made up out of whole cloth. That’s not in the regulations, and most legal observers I saw on television said that Mueller (silent at this point, of course) must have intended to let Congress decide; that Barr was too conflicted to make that decision. Not only did he owe his job to Trump but, as it happens, Barr—in June of last year, before he was nominated to be attorney general but perhaps not unconnected to his hope that he would be—voluntarily sent a long memo to the Justice Department casting serious doubt on the concept that a president could be held to have obstructed justice. Mistrust had been sown.

Legal observers, particularly on television, had a field day with this feature of Barr’s letter. First, Mueller himself—until this weekend, a hero to critics of Trump—came under considerable criticism for ducking the question of obstruction. Former prosecutors also puzzled over this evasion of responsibility on Mueller’s part; making such decisions was his job, they said. A single word raised questions on the part of television commentators: Barr’s letter said that “most” of Trump’s acts that could be interpreted as attempts to obstruct justice had been observed by the public. OK, then what were the others? Members of Congress and the press can’t know while the report remains secret. And, it should be added, there’s no knowing which parts of the report Barr will decide shouldn’t be made public. (He’s already prohibited from disclosing classified information, or anything that pertains to pending cases or grand jury testimony.) Many think that Trump has already shown the required “criminal intent”—for example, when he explained in an interview with Lester Holt, the anchor of NBC Nightly News, that he’d fired FBI director James Comey because of the “Russia thing.” That Barr and Rosenstein, and not Mueller, decided that the information was too “inconclusive” to bring a case against Trump on obstruction, raised immediate questions. Katyal said on MSNBC that Barr’s letter “causes me great concern.” Like others, he wondered aloud how Barr and Rosenstein could decide in 48 hours the answer to a question that Mueller couldn’t answer in two years.

In general, the press accepted that Mueller couldn’t find enough evidence of conspiracy between Trump (and his aides) to charge the president with a crime. After a day or two, however, questions began to come up. There’s already public knowledge of numerous meetings between campaign officials and people with varying degrees of closeness to the Kremlin. A number of Trump’s campaign associates have been charged with lying to congressional committees and prosecutors about their contacts with Kremlin connections. There is no way to know, at least until the report materializes, how many other contacts and meetings there were. Will Barr let us see that?

The combination of Mueller’s unwillingness to charge Trump with anything and Barr’s exonerating Trump from a potential charge leaves several unfortunate legacies: as Peter Baker pointed out in the Times, the result is that a president can, with impunity, fire an FBI director who is investigating him, dangle pardons (as we have seen Trump do in televised statements), try to intimidate a witness, and force out an attorney general for failing to sufficiently protect him. For those who have an expansive view of presidential powers—this includes Trump and the highly conservative Federalist Society, from whom he gets his judgeship recommendations; Barr, too, was a member—and those who, during Watergate, were termed “King’s party men,” this is a welcome result of the Mueller saga. To others, however, this has ominous implications that undermine separations of power and holding a president accountable for his acts between elections. (The latter was the purpose of the impeachment clause in the Constitution.)

 

Trump spent the weekend at Mar-a-Lago, his resort in Palm Beach. On Sunday, as he boarded Air Force One to return to Washington, Trump, who had been keeping uncommonly quiet, told reporters exultantly, “It was a complete and total exoneration.” That claim provided a new dilemma for journalists, since, like so much that the president says, it wasn’t true. Such an “on the other hand” clause is hard to work into a story, particularly when the president is flat-out lying. (At one point last year, the president’s predilection to prevaricate had become so overwhelming that some newspapers began to use the word “lie” in their stories, if sparingly.)

Such vindication as Trump won from Mueller’s (and Barr’s) handiwork—and it was substantial—brought out the vindictive side of both Trump and his allies. Vengeance would be theirs. The origins of the investigation—begun and continued under Republicans, most of them selected by Trump—would now be investigated, and once again Trump and his allies will try to pin it on Hillary Clinton (a fantasy that would take too long to try to explain here). Pundits who had said there’d been collusion would be blackballed—Trump’s reelection committee sent a memo to television producers urging them not put on the air people who had predicted that Trump would be charged with cooperating with the Russians. Sarah Huckabee Sanders, the president’s press secretary, started aiming fire at reporters by sharing a “Mueller madness” bracket drawn up by the New York Post of journalists and others who had alleged collusion.

Six House Democratic committee chairmen have written to Barr demanding that the full Mueller report be made public by April 2; Dianne Feinstein, the ranking member of the Senate Judiciary Committee demanded the report by April 1. A Justice Department spokesman said that what publication of the report there would be would take “weeks,” so these deadlines were hypothetical. And so, with no report to report on, when it comes to writing or broadcasting about what was supposed to be the most significant, if not earthshaking dictum on a president’s behavior in decades, the press has very thin gruel.

Barr has agreed to testify before Congress once he’s released a version of Mueller’s report. Some weeks from now, journalists will be confronted with having to explain how Barr laid the grounds for the big decisions that he and Mueller made, why certain matters weren’t addressed, and why certain information was omitted; they will also have to untangle the arguments made to him by members of Congress. In other words, journalists will face the greatest challenge yet in enlightening the public about the greatest scandal yet in American presidential history.

ICYMI: Journalists weren’t part of a conspiracy. They were doing their jobs.

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Elizabeth Drew is the author of fourteen books, including Washington Journal: Reporting Watergate and Richard Nixon’s Downfall, which was expanded and reissued in 2014. She is a frequent contributor to The New York Review of Books. Follow her on Twitter @ElizabethDrewOH.