the result of Barr’s errors was “public confusion about critical aspects of the results of [the] investigation.”5 Mueller adds that Barr’s actions “threaten[] to undermine a central purpose for which the Department appointed the Special Counsel: to assure full public confidence in the outcome of the [conspiracy and obstruction] investigations.”6 The near-universal opinion of legal scholars in reaction to Barr’s claim that obstruction cannot be charged without an underlying crime is that, as a matter of long-standing legal precedent, the attorney general is incorrect.7
Despite the report explicitly distinguishing between “conspiracy,” the narrow statutory offense the special counsel’s office investigated, and “collusion,” a lay term with broad implications that Mueller did not consider in his nearly two years of work, Barr will falsely declare at a press conference after the report’s release that the report found “no collusion” between Trump or his campaign and Russian nationals. “As [Trump] said from the beginning, there was, in fact, no collusion,” Barr declares.8 As discussed earlier (see Introduction), “collusion” is a term under whose umbrella many criminal statutes may be considered to reside, including a number outside the purview of the special counsel’s investigation, such as bribery, aiding and abetting, solicitation of foreign campaign donations, and money laundering.9
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Volume 1 of the Mueller Report addresses a narrow question: whether the special counsel’s office found proof beyond a reasonable doubt of any of four pre-election crimes, specifically conspiracy to commit computer crimes, conspiracy to defraud the United States, criminal violations of the Foreign Agents Registration Act (FARA), or a criminal violation of the ban on foreign campaign donations (though this last assessment is applied by the special counsel only to the June 9, 2016, meeting at Trump Tower between Paul Manafort, Donald Trump Jr., Jared Kushner, and several individuals connected to the Russian government).10 The volume does not consider other federal criminal statutes undergirded by “collusive” contact between Americans and foreign nationals. Nor does it apply any standard of proof besides the highest standard in U.S. law, “beyond a reasonable doubt”; as the report includes no counterintelligence findings, it does not apply the much lower “preponderance of the evidence” standard—the standard relevant to the identification of compromised persons and the redress of ongoing national security threats—to any of the events considered by the report.11 As noted by Fordham law professor Jed Shugerman in the New York Times, “preponderance of the evidence” is likewise the appropriate standard of proof for a noncriminal proceeding like impeachment, whose ultimate penalty is merely loss of employment and authority rather than loss of liberty.12
On the first page of the report, the special counsel’s office announces that its investigation “established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the [Trump] Campaign expected it would benefit electorally from information stolen and released through Russian efforts.”13 The report adds that the “investigation established that several individuals affiliated with the Trump Campaign lied to the [special counsel’s] Office, and to Congress, about their interactions with Russian-affiliated individuals and related matters. Those lies materially impaired the investigation of Russian election interference.”14 Explaining in detail the nature of the “material impairment” caused by Trump campaign deception, the report notes that “the investigation did not always yield admissible information or testimony, or a complete picture of the activities undertaken by subjects of the investigation … [because] [s]ome individuals invoked their Fifth Amendment right against compelled self-incrimination and were not, in the Office’s judgment, appropriate candidates for grants of immunity. The Office limited its pursuit of other witnesses and information … in light of Department of Justice policies. Some of the information obtained via court process, moreover, was presumptively covered by legal privilege and was screened from investigators … [and] [e]ven when individuals testified or agreed to be interviewed, they sometimes provided information that was false or incomplete … [a]nd the Office faced practical limits on its ability to access relevant evidence as well—numerous witnesses and subjects lived abroad, and documents were held outside the United States. Further, the Office learned that some of the individuals we interviewed or whose conduct we investigated—including some associated with the Trump Campaign—deleted relevant communications or communicated during the relevant period using applications that feature encryption or that do not provide for long-term retention of data or communications records. In such cases, the Office was not able to corroborate witness statements through contemporaneous communications or fully question witnesses about statements that appeared inconsistent with other known facts. Accordingly, while