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Is The Mueller Report A BFD?

Welcome to a special, extra edition of FiveThirtyEight’s weekly politics chat. The transcript below has been lightly edited.

sarahf (Sarah Frostenson, politics editor): At long last, we have special counsel Robert Mueller’s report into Russian interference in the 2016 election. And compared with Attorney General William Barr’s summary of the report, which he sent to Congress last month, it paints a murkier picture of whether President Trump might have obstructed justice; for example, the report includes details of the president attempting to fire the special counsel.

Ultimately, though, Mueller’s team wrote that it did not have the confidence to clearly state that the president either did or did not obstruct justice and that “while this report does not conclude that the president committed a crime, it also does not exonerate him.”

So, tell me … now that we have the report, is it a BFD?

ameliatd (Amelia Thomson-DeVeaux, senior writer): The obstruction findings were a BFD, to me, because I was surprised by how clear Mueller was in suggesting that Trump had corrupt intent when he took various actions around the Russia investigation (such as firing FBI Director James Comey). That was a big deal, for Mueller to paint such a dark picture of Trump and his White House.

Mueller essentially told the story of a president who’s willing to intervene in ongoing criminal investigations to serve his own ends, and I wasn’t expecting Mueller to do that so directly.

Whether anything will come of that is another question, though, since Mueller himself didn’t actually come to a conclusion on obstruction.

clare.malone (Clare Malone, senior political writer): “Our analysis led us to conclude that the obstruction-of-justice statutes can validly prohibit a president’s corrupt efforts to use his official powers to curtail, end, or interfere with an investigation.”

That line from the report really stood out to me in contrast to what we’d been hearing from Barr over the past few weeks.

perry (Perry Bacon Jr., senior writer): There was a whole, whole lot of obstruction documented here. Like 95 on a scale of 1-100, to me. And it sounds like Mueller didn’t conclude that Trump obstructed justice largely because Justice Department guidelines are viewed as not allowing a president to be charged with a crime. Mueller all but said Trump obstructed repeatedly.

ameliatd: There were a lot of things that were pretty different from what we heard from Barr, both in his summary and in his press conference today — it will be interesting to see what happens if Mueller does testify before Congress. I will be curious to hear what he thinks about how Barr handled this.

clare.malone: I agree, Amelia. I sort of wonder if he’ll unburden himself in a lawyerly way.

ameliatd: I am sure that he’ll do some expert hair-splitting. But still. It will have to be hair-splitting to explain some of the discrepancies between how Barr characterized the report/Mueller’s analysis and what we can read in the actual report.

sarahf: Let’s dive into those discrepancies a bit.

What do we think are the key ways in which Barr’s summary and comments in the press conference on Thursday differed from Mueller’s team’s conclusions?

ameliatd: Well, Barr said on Thursday that Mueller’s decision not to come down on obstruction was not driven by an opinion from the Justice Department saying that a sitting president can’t be indicted. And that was important in the wake of the Barr summary because it raised the question — OK, so is Mueller not coming down on this because there just isn’t enough evidence to support obstruction charges?.

Reading Mueller’s report, it is very clear that he started from the position that he couldn’t indict the president and then charted his path from there.

perry: Barr, to me, implied that Mueller couldn’t reach a conclusion on obstruction, like it was a 50-50 call or something, based on the evidence. It looks like Mueller saw obstruction and the question was should he indict based on that or defer to Congress.

clare.malone: I was going to say what Amelia and Perry said. Barr really seemed to have been misleading.

natesilver (Nate Silver, editor in chief): I’ve mostly read Volume 1 so far — i.e., the collusion/conspiracy part — and there are some discrepancies there as well. Namely, Barr downplays the extent to which people in the Trump campaign were sometimes receptive to efforts to coordinate with Russia. (Although they rebuffed them at other times.)

From the report:

And from Barr’s letter:

perry: Also, Barr in his press conference today implied that Trump was annoyed by the investigation because it was hurting his presidency and the media coverage was bothering him. The report suggests that Trump was worried where the investigation might lead and wanted to stop it by any means necessary.

sarahf: Right. That’s the part of the report that hasn’t gotten as much attention — Mueller’s team wrote that “while the investigation identified numerous links between individuals with ties to the Russian government and individuals associated with the Trump Campaign, the evidence was not sufficient to support criminal charges.”

ameliatd: Barr’s summary also seemed to imply that the fact that there wasn’t an underlying crime (i.e., nobody within the Trump campaign was ultimately charged with coordinating with Russia) had an impact on whether Trump could have obstructed justice. Mueller said very pointedly that you can charge obstruction without an underlying crime.

perry: Mueller’s team also notes that the collusion/conspiracy/coordination investigation was hampered by Trump allies lying about what happened.

clare.malone: More to the Russia side of things, not obstruction?

I think there’s still the question of why Trump was so into being pro-Russia or accepting help. You could maybe extrapolate that he had business interests …

natesilver: But “evidence not sufficient to support criminal charges” is a lot different than “no evidence” or “no effort to coordinate.” For instance, the stuff about former Trump campaign Chairman Paul Manafort sharing internal polling data with Konstantin Kilimnik (a Russian political operative with suspected ties to Russian intelligence) — including the emphasis the Trump campaign would go on to place on Michigan, Wisconsin and Pennsylvania! — isn’t great for Trump. And Mueller isn’t sure what happened to that data, in part because Manafort isn’t a reliable witness so everything about what he did is murky.

perry: Right, there is “no evidence to support criminal charges” on the collusion part is just way different than nothing happened.

clare.malone: Yeah, especially given the narrow definition that Mueller gave to “collusion.” And we should note that there are a lot of other criminal referrals that came from this investigation, so there’s still some story left to tell.

ameliatd: Clare, to your point, it’s also relevant that Mueller focused very narrowly on 2016 election interference. We don’t know what he found and turned over to other investigators.

One other big unanswered question on the Russia side: Why were all of these people making false statements about their ties to Russia?

natesilver: Maybe because (i) there’s a lot of “smoke,” enough for them to be paranoid even if it all doesn’t amount to a criminal conspiracy to interfere with 2016; and/or (ii) nobody actually is quite sure what happened or what didn’t because the campaign was such a shitshow; and/or (iii) they’re people who lie habitually?

And for the most part, the report confirms media reporting, as well as material uncovered in earlier indictments that Mueller issued.

ameliatd: I genuinely don’t know, Nate. I think the explanation could be any of the above, all of the above or none of the above. It’s just so puzzling. It’s also puzzling that Trump saw the Russia investigation as such a serious threat, and ultimately we’re left with something that’s not so dramatic.

natesilver: The one thing Mueller really seems to go out of his way to bat down is the idea that Russia interfered to change the GOP platform on Ukraine — he seems pretty confident that there’s an innocent-enough explanation for that, which is that Trump had already taken a position on Ukraine on the campaign trail and the campaign/Republicans didn’t want the GOP platform to contradict it.

perry: And he also downplays the idea that former Attorney General Jeff Sessions was involved in much of anything during the campaign.

natesilver: Yeah, he bats down the Sessions stuff too.

clare.malone: One thing that does come across in the report is that a lot of this obstruction stuff was self-inflicted. So, it could be just the idea of Trump being habituated to the “deny, deny, deny” theory of PR. Which, when you’re president, leads you down a pretty dangerous road.

perry: I think I get why he wants to end the investigation. Volume 1 documents:

  • Trump going around telling former national security advisor Michael Flynn to get Hillary Clinton’s emails.
  • Donald Trump Jr. and Jared Kushner meeting with Russians to get dirt on Clinton.
  • The various things Manafort was doing that would all look bad for Trump.

So all of that stuff in total looks pretty bad.

natesilver: For the most part, though, if you were one of those people who, from the Barr memo, characterized the media’s entire Trump-Russia coverage as a gigantic fail … well, the Mueller report itself makes you look pretty dumb. All of the stuff that people were expecting to be in there is pretty much in there. And some of it is reasonably serious! But does it amount to a criminal conspiracy? Mueller thinks not.

perry: Like Volume 2 (obstruction) is worse for Trump than Volume 1 (collusion), but if Trump knew most of what is detailed in Volume 1, I can see why he wanted to stop the investigation.

clare.malone: Volume 2 just lays out a lot of Keystone Kops scenarios: Trump giving different orders to different people, mismanaged responses to media stories dropping, etc.

natesilver: And also, to the extent that his efforts to obstruct the probe were pretty serious, maybe Mueller didn’t find out everything he could have in Volume 1.

The report actually says that at some point, and it seems particularly relevant for the Manafort-related stuff.

ameliatd: It does seem pretty clear that Mueller was frustrated with his inability to get reliable information out of Manafort. I wonder now that the report is out whether we’ll actually see any pardons.

That’s been hanging over the investigation this whole time, and it would actually be unusual, from a historical perspective, if no one implicated in the Mueller investigation ended up being pardoned.

natesilver: I mean, that would be a very risky move for the White House politically.

ameliatd: Right. There’s a reason why presidents wait until they’re on their way out the door to pardon people.

clare.malone: Who do we think the most likely candidates for a pardon are?

ameliatd: Manafort.

clare.malone: Yeah.

ameliatd: Maybe someone like George Papadopoulos, who was a relatively minor figure.

natesilver: But maybe Trump would do it. You sometimes get the sense that the whole way the White House played it was more to soothe Trump’s ego than to necessarily win the battle of public opinion. The press conference this morning didn’t help the White House at all, I don’t think.

perry: Well, the report suggests that Manafort stayed loyal to Trump. But the report also says he was involved in some of the stuff that looks most collusion-like (meeting with Russian officials and discussing poll numbers).

Pardoning Manafort would be a really stupid political move.

But he might do it anyway.

ameliatd: If this report has taught me anything it is that Trump does not think about risk in a way that I understand.

clare.malone: I feel like Trump definitely misses the forest for the trees. ALL THE TIME.

perry: Well, it appears Trump is always trying to get deputies to actually carry out the legally dubious actions.

So I suppose that is smart.

sarahf: OK, on the question of obstruction of justice, though, what did we learn that was particularly damning or mischaracterized by Barr’s interpretation that made it a big deal?

After all, there were some examples in which Mueller’s team said that the president had the prerogative to, say, fire Comey because it didn’t prevent the FBI from continuing its investigation.

But in other instances, Trump was arguably saved from complicated legal issues only because someone in his administration intervened.

ameliatd: It would have been huge if Trump had actually managed to fire Mueller.

clare.malone: Well, the Comey thing is more complicated, though. It’s within Trump’s power to fire the FBI director, but the way he went about it and the reasons given could tilt it more toward obstruction.

perry: The actual activities had been reported — trying to get Mueller fired, firing Comey. But Mueller provided new details that suggest Trump really was behaving in nefarious ways — like deciding to fire Comey but then trying to get Deputy Attorney General Rod Rosenstein to say he came up with the idea is pretty bold. And trying to get former Trump campaign manager Corey Lewandowki to tell Sessions to basically un-recuse himself from the Russia probe and stop parts of the investigation.

ameliatd: And Barr was making it seem like maybe the evidence wasn’t there, when in fact Mueller said he couldn’t charge Trump but he could, in theory, clear him of wrongdoing. Then Mueller explicitly said he could not exonerate Trump, which suggests Mueller does think the evidence was at least somewhat compelling.

perry: The report shows Trump being deeply involved in the details of trying to stop the investigation and obscure his role in stopping the investigation.

ameliatd: Which makes it pretty clear that Mueller found this evidence at the very least compelling, in terms of obstruction. And he didn’t buy arguments from the president’s defenders that Trump couldn’t obstruct justice by firing Comey because it’s one of his constitutional powers, regardless of his motivation.

perry: Right.

ameliatd: I also just want to note that Mueller said explicitly that a president could be charged with obstruction after leaving office. And Barr just closed that door!

natesilver: Are y’all surprised at how wantonly Barr was willing to spin?

clare.malone: No, Nate — I guess not?

natesilver: I mean, I guess I thought that, say, if the actual report were a 5 out of 10 for Trump (on a scale where 0 is terrible and 10 is great), he’d be willing to spin it to a 6 or a 6.5. Instead he tried to spin it to an 8.

ameliatd: I am surprised, if only because it seemed so ill-advised. Eventually, much of the report was going to go to Congress and the public, right? So why be so misleading?

clare.malone: To play to Trump?

perry: I think Nate suggested this in the podcast, but the report would have basically met my expectations if it came out pre-Barr’s summary. But the White House took the Barr letter and framed it as an exoneration. So that made the report even more damning — I expected it to be not that bad, and it was, on the merits, really bad for Trump.

sarahf: So to that point about expectations — how much of the Mueller report did we already have?

ameliatd: I don’t think there’s much of the report that is genuinely new, but there’s a lot we hadn’t heard from Mueller before.

natesilver: Let’s keep in mind: If you’re willing to work for Trump — at, frankly, a lot of risk to your reputation and maybe also some legal risk — then maybe you’re a True Believer after all.

sarahf: But do we really think this is bad for Trump? For example, what do we think Congress actually does next? Or will it be advantageous for Democrats to use this in 2020?

natesilver: It’s not that bad for Trump. It’s a 5 out of 10, relative to pre-Barr letter expectations. But it feels a lot worse because of Barr’s clumsy attempts at spin.

clare.malone: I think Democrats are going to:

  1. Want Mueller to testify.
  2. Face a struggle between leadership (which has resisted impeachment efforts) and a renewed push to start impeachment hearings.
  3. And fundraise off making the full Mueller report available!

perry: The report portrays Trump very negatively. And a report can be bad in a legal sense that is separate from its electoral impact.

ameliatd: One of the main takeaways for me is that the report has given Democrats ammunition to drag this fight out without necessarily calling for impeachment. Instead, they can call Mueller to testify, call Barr to testify, and use what’s in the report to support more investigations.

clare.malone: We’re already seeing Trump campaign emails and videos out today pushing the line that the tables need to be turned and the investigators investigated. We’re already seeing the playbook for how the Mueller report will play out in the campaign: Trump running with the idea that he was persecuted, and Democrats running with the whole “can you believe this guy?” line.

natesilver: The report is bad, but it’s roughly in line with what people would have expected, as Amelia and Perry said. Keep in mind that only 42 percent of the public approves of Trump, and that’s in a really good economy! They don’t think he’s honest about Russia or other things. They also didn’t necessarily expect there to be a smoking gun about collusion/conspiracy. The public was way smarter than the media on this stuff, I think.

ameliatd: Barr’s little intro to obstruction of justice in the press conference, saying that Trump was facing all of these investigations and scrutiny and there was ultimately no collusion, seems like it will be very useful for Trump and his defenders.

perry: So earlier today, House Majority Leader Steny Hoyer made this “no impeachment” statement. And as you can see the tweet referring to it was ratioed:

natesilver: But Hoyer is right on the politics of this. Impeachment is not a popular option. As Amelia said, call Mueller to testify. Call Barr to testify. Call other people to testify. So you can have a drip, drip, drip against Trump, mostly to satisfy partisans and keep him off balance. But impeachment? Not popular.

clare.malone: The ultimate “Twitter is not the Democratic base” stance!

natesilver: It’s also Trump’s first term. The Nixon/Clinton impeachment efforts both came in the second term, when those presidents were lame ducks and there wasn’t any recourse from the public.

ameliatd: I’m not sure this gives Democrats much fodder for more investigations because the obstruction stuff was so clear and there don’t seem to be many more avenues to explore the 2016 election. Maybe it helps them get momentum to look into Trump’s finances for ties to Russia?

natesilver: Also, if Trump were unpopular enough that he could be not only impeached but also removed by the Senate — which would mean that his approval rating with Republicans would have to be way down — wouldn’t you rather run against him anyway?

That would probably imply he had like a 29 percent approval rating or something, in which case the Democratic nominee in 2020 would be on track to win in an epic landslide and maybe pick up some huge congressional majorities too.

clare.malone: But what does it take for him to slide to that point? And is that a realistic expectation given our political environment, Nate? That just seems to be a pretty unlikely thing to happen.

natesilver: No, I’m not saying that at all.

I’m saying that impeachment won’t actually result in his removal from office unless he’s fallen to like 30 percent.

But if he’s fallen to 30 percent, Democrats don’t want to impeach him because then they’re basically guaranteed a landslide victory in 2020!

ameliatd: And if they impeach him, they risk turning him into a martyr.

sarahf: OK, to wrap … We have the report. And the evidence that Mueller had on the question of obstruction justice was a bigger deal than Barr indicated in his initial summary. But what does the report’s release actually change? Is it a question of who wins the political narrative?

ameliatd: This is the tricky thing about special counsel investigations! If they don’t come to a conclusive result, it’s hard to know what to do with the findings politically.

clare.malone: Basically, Democrats have to keep their base on board with the long-term plan of winning back the White House and not the short-term impulse to impeach.

perry: The question, I think, that is on the table is: What is the non-impeachment remedy for a president who appears to be at least somewhat open to violating norms and/or laws?

natesilver: What does it change going forward? I dunno. The Barr memo didn’t do much to shift public opinion in Trump’s favor, so Occam’s razor is that the Mueller report won’t do much to shift public opinion against him.

I do think it will make the press more skeptical of Barr and any efforts the White House makes to normalize its conduct.

ameliatd: And it does mean we’re going to keep hearing about the investigation, which could be good for Democrats because people are so fired up about it.

natesilver: It certainly describes a White House and a campaign that’s in total disarray. In the end, as Perry said earlier, I think it brings us back to where we were a month ago, where “the Russia stuff” is a negative for Trump and one of the reasons his approval rating is so low but not an acute crisis for him or the first (or second or third or fourth) thing that voters are thinking about.

From ABC News:

Mueller report showed ‘No collusion’ with Russia by Trump campaign, AG Barr says

Nate Silver founded and was the editor in chief of FiveThirtyEight.

Clare Malone is a former senior political writer for FiveThirtyEight.

Perry Bacon Jr. was a senior writer for FiveThirtyEight.

Amelia Thomson-DeVeaux is a senior editor and senior reporter for FiveThirtyEight.

Sarah Frostenson is FiveThirtyEight’s former politics editor.