In last week’s Queens Jewish Link, Rabbi Schonfeld wanted to see my reaction to the Mueller report. I do not want to leave him disappointed, so I decided to address it this week.

In order to understand Mueller’s conclusions, you must understand what the underlying investigation was. The probe was not to make a political determination. The special counsel’s role was not to determine whether the president committed high crimes or misdemeanors as required by the Constitution to impeach a president. The investigation was whether federal crimes were committed by Trump and/or members of his presidential campaign and whether he obstructed justice. In order to convict a person of a crime, the standard is proof beyond a reasonable doubt. Although beyond all doubt is not required, it is a high burden. It is like Ivory Soap, 98.46 percent pure. A prosecutor, including Mueller, should not accuse a person of a crime unless they believe that they could establish beyond a reasonable doubt that the person committed the crime.

In contrast, when an act involves civil liability, the standard is much lower. In most situations, all that is required is the preponderance of the evidence. In other words, in order for the plaintiff to succeed, all he has to prove is that there is over a 50 percent chance that the defendant was at fault. There are other limited situations when “clear and convincing” is required, such as termination of parental rights. “Clear and convincing” is between preponderance and the reasonable doubt standards.

An example of the distinction between acts that result in criminal and civil liability is a motor vehicle accident. Although it is usual for one party to be found liable for negligence in causing the accident, it is rare for a person to be criminally charged for conduct that caused an accident even when someone is killed.

Attorney General William Barr’s four-page report summarized Mueller’s over-300-page report. Mueller’s report was his interpretation of the evidence that was obtained in the investigation. A four-page summary does not do justice to such a long report.

According to Barr, the special counsel did not draw a conclusion one way or another as to whether Trump’s conduct constituted obstruction of justice, but merely set out evidence on both sides of the issue. The attorney general quoted from the report that “while this report does not conclude that the president committed a crime, it also does not exonerate him.” Barr, after reviewing the report, made the determination that the president did not commit the crime of obstruction of justice. The attorney general did not indicate that he reviewed the backup documentation before making his determination.

If I am representing an appellant on an appeal, I have to argue that the trial judge’s determination is incorrect. Arguments may include that the court incorrectly determined the credibility of the witnesses. Other times, the court ignored important facts in making its decision or misunderstood what the witness was saying. Another approach is that the court improperly applied the wrong law or the facts to the law. In order to make these arguments, I have to present to the appellate court all the papers or transcripts that the trial court had before it in making its determination. Without having these documents, I cannot make a proper argument and the appellate court cannot determine whether the trial court was incorrect in its decision.

Barr’s report is even worse. It is two steps removed. There are the underlying facts that were determined by Mueller. Barr then interpreted Mueller’s report.

The way to decide whether Barr was correct in finding that the president did not obstruct justice is for the public to have the complete underlying record. Likewise, it is important to understand Mueller’s conclusions as to conspiracy. Did Mueller believe that there was no proof of collusion at all, or that there may have been some proof but it was not sufficient to establish collusion beyond a reasonable doubt? The underlying documents need to be available to the public to make its determination.

The underlying record is important in deciding if there should be impeachment proceedings based on the allegations addressed by the special counsel. As noted, the standard for criminal prosecution is different than impeachment.

Right now, few minds have been changed by Barr’s summary. Trump and his supporters are trying to take a victory lap. I am not sure how having the special prosecutor state that it is not a clear answer whether the president obstructed justice is a victory.

In any event, the best way to deal with the cloud hanging over the president is to have total transparency or minimal redactions that do not have any material effect on seeing or understanding the material facts.

I doubt that it will happen. At most there will be Mueller’s report, which lists facts that he determined were important and the law and his application of the facts to the law. The analogy in my world is being stuck with the judge’s decision with an inability to question it.


Warren S. Hecht is a local attorney. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. 

 

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