Absent Any Indictments, Collusion May Be A Delusion

Below is my column in The Hill newspaper on the news that there will be no further indictments issued by Special Counsel Robert Mueller. The fact of no indictments means that Mueller will not indict a single person for collusion or obstruction. He could still indicate that he believes that President Donald Trump committed an offense but cannot be indicted under Justice Department policy. However, whatever crime that may be, the absence of any of indictments would suggest that he would be the only person charged — a curious profile for a prosecution of this kind. Mueller could still find a concerted Russian effort to help Trump, but that is evident from the charges against the Russian hacking and trolling operation.

Here is the column:

In just a couple hundred words, Attorney General Bill Barr officially ended the special counsel investigation and set the stage for the long-awaited findings of possible collusion with Russia. Pundits immediately took apart every clause and analyzed every tense to find some indication of the findings of Robert Mueller. In the end, of course, the letter to Congresswas about as informative as a haiku highway sign. It merely states that the report has been submitted and that Barr has no disagreement with the special counsel’s actions or conclusions.

There is, however, one thing that stands out — a Zen-like question that contains a deeper answer, such as asking what sound does one hand clapping make. The question left in the wake of the Barr letter is: What does one-person collusion sound like?

The Justice Department has informed reporters that there will be no further indictments from the Special Counsel. Many people immediately insisted that does not mean anything, since the Justice Department has long maintained a policy that it should not indict a sitting president. However, it could mean a great deal.

While President Donald Trump could obstruct justice alone, collusion is something that needs at least two people and preferably more. Trump cannot collude with himself. So, if there was a finding of collusion, someone should be indicted even if Trump cannot be while in office. A third party would not be protected by the Justice Department policy. There certainly could be a sealed indictment, but one would expect a number of people would be involved in a collusion between the Trump campaign, the Russians and WikiLeaks to hack the Democratic campaign’s emails and then leak those.

For two years, I have been a vocal critic of claims that there is collusion and that there are clear crimes likely to be alleged as a result of such a conspiracy. It just did not seem to track.

First, one has to have more faith in Russian intelligence that it would not run one of the most risky intelligence operations in history and reveal it to Donald Trump or Donald Trump Jr. The Russians do not ordinarily run ultra-secret operations and then leave themselves one tweet away from utter disaster.

Second, it did not track that such a collusion conspiracy would then call a meeting in Trump Tower, with half of the world’s media downstairs — a meeting for which the Russians did not even know the attendees in advance.

Third, if the Russians really wanted to help Trump (and it appears that they may have), they would keep him and his campaign in the dark about such an operation.

Finally, despite using “speaking” indictments for the last two years, the only references in those indictments to possible collusion have been to deny such links. When the Russian hacking-and-trolling internet operation was the subject of a lengthy indictment, the Justice Department expressly said that any contacts with the Trump campaign were done “unwittingly.” The only question was whether Mueller was holding all of the evidence — every little bit — for a grand finish, as in an Agatha Christie novel.

Now, however, the biggest clue may have been dropped by omission.

Trump has shown that he can do a lot of damage alone. He can tweet alone and speak alone. He can even obstruct alone. The one thing he cannot do alone is collude. As defined by Webster’s dictionary, collusion is a “secret agreement or cooperation especially for an illegal or deceitful purpose” among multiple people.

There is no immaculate collusion.

The result may be chilling for Trump critics. For two years, the mantra has been “just wait for Mueller.” Well, Mueller is here, and he reportedly is bringing no additional indictments.

If Mueller found no collusion, it would be an undeniable vindication of Trump and would contradict countless legal analysts who have assured the public that collusion is obvious based on the existing record. Indeed, just last week, House Intelligence Committee Chairman Adam Schiff (D-Calif.) said that “direct evidence” of collusion is already established. If so, someone should be directly indicted. Yet, even if collusion is a delusion, Schiff remains undeterred. He responded to the letter by insisting that he will continue the investigation and call Mueller before his committee.

We obviously will have to wait and see if the Mueller report will be released in some form. Attorney General Barr is required to give a summary of the matters investigated and the findings. What follows likely will be an intense debate at the Justice Department over whether the full report should be made public. Deputy Attorney General Rod Rosensteinand others denounced former FBI Director James Comey for discussing evidence against Hillary Clinton after it was decided not to charge her in 2016; some may argue that the full release of the Mueller report would be Comey on steroids. Yet, there is an obvious public interest in this report and, in my view, ample reasons to order its release as an exception to the Justice Department policy of confidentiality.

For the moment, if there truly are no further indictments, the silence could prove deafening. Indeed, perhaps as one devotee of the Zen “koan” insisted, there is a sound of one hand clapping. It is the sound of silence: “The idea has something to do with hearing the sound of no sound.

While monks could well disagree with that answer, it certainly is true with the special counsel. The sound of silence can tell you a great deal … whether or not you are willing to hear it.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter@JonathanTurley.

33 thoughts on “Absent Any Indictments, Collusion May Be A Delusion”

  1. Hopefully we see the full report minus dedacted grand jury, classified or sensitive national security information, and protection of non-public innocent parties.

    As to Rosenstein and Barrs finding of no obstruction – not shared by Mueller – no one can reasonably claim that Trump has not been trying to stifle if not shutdown the investigation from day one. The lack of evidence for a criminal conspiracy to collude – or other possible crimes – does not mean they did not happen, or that lesser, non-criminal attempts were not undertaken – see the Trump Tower and subsequent Trump cover story – and perhaps explain the President’s actions to stifle the investigation. It is not a given that Trump would know the legal line between provable and non-provable criminal conspiracy and so he could be still be trying to obstruct justice without that higher bar having been met.

    The Barr letter explanation of this does not make sense on this point by itself, but hopefully information to come will help us all better understand what happened. Depending on the evidence we all may or may not agree with Barr and Rosenstein or conversely with Mueller. Looks like voters will have the final say, at least until Trump leaves office and the SDNY or other legal authorities have a shot at him.

    1. You’re nuts if you would expect any sitting president not to vigorously oppose a partisan investigation by the losers of the election that put him in office. Your idea that any one facing such an ordeal would sit meekly by and accept the resulting calumny from the party that provoked the investigation does not accord with normal human behavior.

    2. You and your ilk would like to impose criminal penalties on any intent to thwart Clintons in their relentless power-grabs, but luckily that is not the law – yet.

        1. To do that it would be helpful to understand how you define justice.

          For instance, hypothetically, if the full weight and force of the federal government is used to investigate an alleged conspiracy of collusion with a foreign government by Trump and his campaign and during that investigation evidence is discovered that proves the conspirators were actually working with Clinton and her campaign, should that evidence be pursued and indictments handed down as vigorously?

    3. The lack of evidence for a criminal conspiracy to collude – or other possible crimes – does not mean they did not happen,

      This from one of those that were appalled that Justice Kavanaugh decided to defend himself against the insanity of the Left. Shocker.

      Stop pretending you care about the law. For you, the law is an instrument for ideological warfare. It certainly isn’t about justice. If it were, you would see where the evidence points and demand the violators be prosecuted. Had Mueller discovered an email server in Trump Tower being used by the President to conduct classified government business, or found evidence he paid foreign spies from his campaign to produce a dossier leaked to the press, or had anyone from the FBI, intel community conspiring to secure bogus FISA warrants against Clinton to upend her campaign, you’d be front-row-center to watch Trump and his conspirators being frog-marched to prison.

      You see the difference between you and your ilk and those on this blog that have been defending the President, is we believe in the rule of law, not lawfare. We believe in the presumption of innocence and prosecution of anyone violating the law. While we would have been disappointed to discover the President had done what he was accused of doing, we wouldn’t have looked the other way.

      Stop digging, keep digging. At this point it really doesn’t matter.

      1. “Stop pretending you care about the law. ”

        Nicely said, Olly. This is the bottom line. The law just stands in the way of the left’s self-realized moral superiority.

  2. What Dems and MSM are hoping for is that the reason Trump wasn’t indicted was because of DOJ policy expressly forbidding the indictment of a sitting president. However, this is extremely unlikely as there are no more Mueller indictments forthcoming and none of the indictments have charged collusion and/or conspiracy. As Turley correctly notes, you then are left with the somewhat remarkable and incongruent case of Trump colluding with himself.

    Furthermore, if Mueller found that there was no collusion or conspiracy, you then can not have obstruction as a matter of law and logic. For example, take the Jim Comey firing. The underlying obstruction theory being used (one that is novel and unprecedented) is essentially that an otherwise lawful exercise of Article II powers can be transformed into an unlawful one because of provable corrupt intent. In this case, Trump’s intent was to impair the Russia investigation so that he could cover up Russia collusion. In other words, the firing was nothing more than a corrupt pretext. However, if there is no collusion/conspiracy, then where is the provable corrupt intent? What you’re left with is a lawful exercise of Article II powers and no obstruction by definition.

    The most significant tell in the whole Mueller saga was when he accepted written answers to a select set of questions dictated by the Trump legal team that notably excluded any questions on obstruction. This, of course, raises significant questions such as:

    1) If Mueller had such a strong case in addition to all that evidence hiding in plain sight as posited by Mssrs Nadler and Schiff, why wouldn’t he subpoena the President for an in-person interview rather than accept just written answers? Wouldn’t he be professionally compelled to do so if he had such a case?

    2) How exactly do you prove obstruction dependent on corrupt intent on the part of the President without having him answer a single question either in written form or via interview?

    The other point is if Mueller were seriously pursuing obstruction of justice, then it seems Rosenstein would almost certainly have to recuse himself as he would be a fact witness.

    Thus, the most likely outcome of the Mueller report is that it will exonerate Trump and this will leave the Dems with the following strategic pathway:

    1) Continue the Schiff/Nadler media narrative of clear and abundant evidence hiding in plain sight…except that it didn’t reach the level of being indictable (work the beyond a reasonable doubt legal standard angle etc.)

    2) Shift the narrative from collusion to the other still existing tertiary investigations

    3) Continue with the House investigations

    4) Monitor the political and evidentiary landscape opportunistically for plausible impeachment narratives

    Personally, I think this comes with a decided set of risks namely that after a House, Senate and Special Counsel investigation (assuming exoneration), how does this not begin to play into Trump’s infamous “witch hunt” narrative- a series of politically motivated malicious investigations in desperate search for an impeachable offense or damaging narratives to optimize 2020 political prospects? I suspect after about 6 months or so these investigations will start to ring hollow (barring new significant and damaging evidence) not with the hard core left but with a swath of more moderate Dems and Independents as investigation fatigue begins to set in.

    The other risk is that I suspect that very shortly the Trump narrative may longer be the only parlor game in town. There’s also the 3-headed Cerberus in the room of what were the predicates for the Russia investigations and the appointment of the Special Counsel:

    1) Were the predicates valid or politically motivated?
    2) Was there misconduct or not on the part of DOJ/FBI/IC senior officials?
    3) What is the appropriate predicate for launching a Special Counsel investigation especially into a President? Is it simply a fired senior official (a legitimate exercise of Article II authority) unilaterally claiming he was told “I hope you can see your way clear…” and that the issue of loyalty was brought up–a he said/he said situation with no provable context? How does that not invite personal/political abuse with potentially significant ramifications?
    4) Are there appropriate checks and balances in place to prevent improper investigations and DOJ/FBI/IC abuse of power?
    5) Has DOJ/FBI/IC simply grown too powerful and become a de facto fourth branch of government at the expense of civil liberties, legal norms and the Constitution (or, if so, do we simply want them on that wall to invoke Col. Jessup from A Few Good Men)?
    6) Is it really desirable or even constitutional to set legal precedents that amount to Executive Branch (and potentially all federal officials) actions being subject to potential analyses of intent, review and investigation by DOJ/FBI? For example, intent is complex, multi-faceted and notoriously difficult to prove–how does that not invite or even incent partisan abuse? How does the Executive Branch avoid being tied into a legal and investigatory Gordian knot?

    I suspect the launching point for this will be the potential release of de-classified material by Trump and/or the next phase of the Horowitz investigation.

  3. Dear Jonathan, You just twisted yourself in an uncommonly fancy pretzel, in order to given credence to the premise that “collusion” may have happened. In fact, to anyone with even grain of common sense, that premise was laughable from the start. Of course there was no collusion! a) Julian Assange has already copped to it; and b) It’s all based on a JOKE Trump made in a campaign appearance, to wit “maybe the Russians can help us find the 30k missing emails.”

  4. We need a special council to investigate Adam Schiff and his collusion with Russian agents along with Hillary and the $140 million she was paid by Russia for the Uranium One deal.

  5. Just what set of facts did the Russians know that would effect American voters? Perhaps they knew that if Hillary did not go campaign in Michigan she would lose. So they told her not to bother with that trip. Or someone did advise her so.
    Collusion sure gets bandied about.
    Yeah Trump may have business dealings with Russians regarding his hotel.
    We knew that from the get go. So what!

    We ought to be talking about the definition of BS. That is the letters for Bull Shiplegrouper. The media is so full of BS that it comes out of their ears. CNN is one of the worst.

    America has problems to solve which the President can preside over or help solve. It is difficult in this environment. I have started watching Fox News and not the others. And I am a Democrat who believes in the Constitution, liberty, equal rights, fair pay, and no medical monopoly capitalism.

  6. “What does one-person collusion sound like?”

    Like the tree in the forest that not only didn’t fall it didn’t sprout nor was their seed.

    Unless this love affair with ‘collusion’ has transported it from the status of non crime it never existed. It matters not if addressed or charged to only one or to many.

    What matters it’s hidden meaning used to not only present a charge but at the same time confine the charge to only one person not against others where the same charge is clearly applicable and deserving of such treatment.

    The over used word sad applid in this case fits exactly had it not been over used to reverse outcome of ‘collusion’ though both have now gained a false meaning. Most things termed sad are not and most uses of collusion are equally ‘not.’ The result of misframing and misdefining also includes reportedly, purportedly, allegedly, and alleged

    Likewise Presumption of Innocence was offered up by the same group in favor of presumption of guilt.

    The Alabama Senator race come to mind where the alleged activity never to this day gained the approval of any law enforcement officer, district attorney or attorney general or judge other than those who used their press credentials as badges or gavels.

    Worse the additional powers were broadened any and all individuals not confined to a single individual or for that matter instance. Even though those other instances and individuals were and still are readily apparent.

    Was this the intent of those involved from the beginning?

    It certainly looks that way when all one has to do is change the name of a single candidate to Candidates and then to ‘A Candidate.’

    Or Collusion to Conspiracy

    Or to protect one by publicly convicting others.

    Or as in the case of Alabama interfere with an election and the rights of the citizens of one State to the Constitutional Definitions and guarantees of an election as opposed to wholesale interference.

    More over the interference question has still not been answered and dealt with. although the level of interference became and remains far more openly acknowledged except the remarkable sudden deafness of those involved whose rhetoric has turned to a sort of plea for Nuremberg Clemency in the form a demand for a specific outcome.

    Demand Not Plea

    The demanded outcome has arrived before the investigations outcome.

    Served up in syrupy tones and coupled with the silent knowledge of their intent .. one party, one leader, and a continued denial of Our Constitutional Republic. No doubt to be served up again by those whose tones are rougher and more reminiscent of their Socialist pasts.

    If you will recall we of the counter revolution never declared a victory but only a beginning .

    The revolution of 1909 is not defeated yet.

    .

  7. “No collusion “ is a conclusion that everyone should celebrate. I don’t want a US president working with a foreign government to get elected. I would much rather know we put him in due to our own stupidity.

    And the length and independence of the investigation gives it strong credibility.

  8. Contrary to what Prof. Turley says, Mueller could conclude that Trump colluded criminally with, for example, Michael Flynn, if he had evidence that he did so with Flynn before or after the election (Flynn’s involvement with the Trump campaign began in August 2015, according to Politifact) Flynn had 19 meetings with Mueller’s team. He agreed to cooperate and we don’t know what Flynn said. Flynn’s plea agreement likely indemnifies him from further indictments so long as he tells the truth to prosecutors but that doesn’t mean he couldn’t show up as an unindicted co-conspirator of Trump. To me, that’s the possible peril.

  9. Deputy Attorney General Rod Rosensteinand others denounced former FBI Director James Comey for discussing evidence against Hillary Clinton after it was decided not to charge her in 2016;

    They don’t want it known by the little people what ‘prosecutorial discretion’ actually means.

    1. Comey violated long standing DOJ policy of not explaining the dropping of charges. Understanding that policy, I still agreed with his decision to do so in this case given the critical nature of this information to voters. Perhaps he might also have explained long standing SC interpretation of the Espionage Act (since 1941) which requires intent.

      1. Comey repeatedly put himself and the agency “out front” and ahead of the DOJ.
        “Gross Negligence” in mishandling classified material does not require intent to be criminal; that’s why Comey struck his early description of gross negligence, and used the words “extremely careless”.
        Even IF intent were required to prove criminal behavior it’s pretty clear that Hillary “intended” to bypass security requirements of the State Dept. with her own server and with the use of other unsecured devices.

          1. Good for Sen Grassley. Anyone should have been upset with that decision, especially since they didn’t know what they had at that time and when they did, said never mind.

            1. Seen. Grassley is, or at least was, a fairly bipartisan Senator.
              Given the stunts that Sen. Feinstein pulled with the Kavanaugh nomination and the unilateral release of Glenn Simpson’s testimony, he may not be as bipartisan as he once was.
              He and Feinstein ate about the same age, and both are long-term members of the Senate.
              They had previously had a good working relationship, but Feinstein’s 2018 activities might have changed that.

        1. According to a SC ruling from 1941, intent is necessary.

          “…In Gorin v. United States (1941), the Supreme Court heard a challenge to a conviction of a Navy intelligence official who sold classified material to the Soviet Union on Japanese intelligence operations in the United States. In that case, the defendant was charged with selling information “relating to the national defense” to a foreign power. The defendant argued on appeal that the phrase “relating to the national defense” was unconstitutionally vague, so much so that the defendant was deprived of the ability to predetermine whether his actions were a crime.

          Justice Stanley Reed wrote the majority opinion and disagreed that the law was unconstitutionally vague, but only on the very narrow grounds that the law required “intent or reason to believe that the information to be obtained is to be used to the injury of the United States.” Only because the court read the law to require scienter, or bad faith, before a conviction could be sustained was the law constitutional. Otherwise, it would be too difficult for a defendant to know when exactly material related to the national defense. The court made clear that if the law criminalized the simple mishandling of classified information, it would not survive constitutional scrutiny, writing:

          The sections are not simple prohibitions against obtaining or delivering to foreign powers information… relating to national defense. If this were the language, it would need to be tested by the inquiry as to whether it had double meaning or forced anyone, at his peril, to speculate as to whether certain actions violated the statute.

          In other words, the defendant had to intend for his conduct to benefit a foreign power for his actions to violate 793(f).

          Without the requirement of intent, the phrase “relating to the national defense” would be unconstitutionally vague. This reading of the statute has guided federal prosecutors ever since, which is why Comey based his decision not to file charges on Clinton’s lack of intent. This is also why no one has ever been convicted of violating 793(f) on a gross negligence theory.

          Members of the U.S. military have been charged with the negligent mishandling of classified material, but not under 793(f). Criminal charges in military court are brought under the Uniform Code of Military Justice, not the Espionage Act (although violations of the Espionage Act can be charged under Article 134 of the Uniform Code of Military Justice in military court). ….Despite what may appear to be the plain meaning of 793(f), the negligent mishandling of classified material is not a civilian criminal offense. A civilian can face many consequences for negligently mishandling classified material, including the loss of their clearance and probably with it their employment, but they would not face criminal charges. For anyone who thinks negligence should be a crime their argument is not with Director Comey but with Justice Reed, the author of the Gorin opinion. Because of that decision, the correct standard is intent, not gross negligence, and the director was right not to recommend a criminal case.

          John Ford is a former military prosecutor and a current reserve U.S. Army Judge Advocate. He now practices law in California. You can follow him on twitter at @johndouglasford.”

          https://warontherocks.com/2016/07/why-intent-not-gross-negligence-is-the-standard-in-clinton-case/

            1. https://www.realclearpolitics.com/video/2017/12/04/cnn_fbi_agent_strzok_changed_comeys_clinton_language_from_grossly_negligent_to_extremely_careless.html
              Ultimately, Comey takes the fall for the “no reasonable prosecutor” claim, and responsibility for the change in language from “gross neglegence” to extreme carelessness”.
              He was, at least theoretically, in charge of the FBI.
              But if people like the New York FBI agents or Peter Strzok were pulling his strings and dominating his behavior, it’s questionable that he really had the FBI in control.
              That makes him look like an extremely weak Director during his relatively brief stint.
              Brief, but he managed to become really famous😉😄in that short period.

  10. JT writes:

    “Third, if the Russians really wanted to help Trump (and it appears that they may have),….”

    Uh, that is the official conclusion of our intelligence agencies and the FBI. His “..(and it appears that they may have)” should read “…(as our intelligence agencies and the FBI have concluded)”. Does JT think he has superior evidence to that of the intelligence agencies and the FBI? I seriously doubt that.

    1. Uh, that is the official conclusion of our intelligence agencies

      In an assessment rushed into print under the signature of the likes of John Brennan, now employed by MSNBC

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