The Mueller report is in. According to Attorney General William Barr, it clears the president and his team of any charges of collusion with the Russians.
The report left open the issue of obstruction, but that is a hard case to make without an underlying crime (such as collusion). Reviewing the evidence, Barr concluded that it was insufficient for him to proceed with a prosecution for obstruction.
So, the news was about as good for the president as he could have hoped for. Really, it’s a win for the American people, too. After all, it’s nice to know that your president didn’t collude with foreign agents bent on toppling your government.
Of course, in retrospect, a whole lot of time, energy, and money was spent investigating charges that were questionable from the start. Yes, six people affiliated with the Trump campaign were charged with crimes, but none of those charges had anything to do with conspiring with Russia. In fact, the very idea that Putin would have favored pro-military, pro-capitalist, and anti-communist Trump was always a bit far-fetched.
Because of my friendship and work with Ion M. Pacepa, the highest-ranking officer ever to defect from the Soviet bloc, I have come to know a handful of refugees from the Soviet system. These are people who, like Pacepa, risked their lives to escape the type of oppression that Vladimir Putin represents. To a person, they favored Trump over Hillary Clinton precisely because they believed he would stand up to Putin in a way she never would. As Pacepa put it, “Trump is a tough guy.”
On the other side of the coin, President Barack Obama mocked Mitt Romney for calling Russia the United States’ biggest geopolitical threat and was recorded relaying a message to Putin saying that he would be able to do more for Russia after the election. Hillary Clinton—who as Secretary of State pushed a “reset button” with Russia in 2009—would likely have continued along those same lines. Certainly, Putin had every reason to think so.
This insight, which should have been obvious to the press and public officials who commented on the investigation as it went along, caused some to evaluate things differently than many observers did. Several times, a news commentator would critique a statement, action, or tweet by the president and note how badly it reflected on him from a political standpoint.
For instance, Trump said some nice things about Putin early in his presidency. Several commentators called that a mistake because Trump needed to distance himself from Putin. That would have been true if there had been actual collusion with Russia.
Watching those same events while granting the president the presumption of innocence, however, leads to a different conclusion. From that perspective, the statements, actions, and tweets are quite consistent with someone who knows that he is not guilty of the charges being investigated.
When it came to taking action, Trump pretty quickly revealed himself not to be a pawn of the Russians. In March 2017, in response to Russia’s use of a military-grade chemical weapon in the United Kingdom, Trump closed multiple Russian consulates and expelled 60 intelligence officers. In December 2017, he supplied arms to Ukraine, helping the nation protect itself against Russia-backed separatists. He also issued sanctions against more than 100 Russian individuals and firms for destabilizing actions in Ukraine and its occupation of Crimea.
While Putin was expressing support for Nicolás Maduro, Trump was imposing sanctions on the Venezuelan strongman. Trump’s administration also sanctioned numerous Russians for violating non-proliferation laws by supporting weapons programs in Iran and Syria, and supporting North Korea’s development of weapons of mass destruction. Trump also opposed Putin’s largest geo-economic project, the Nord Stream 2 gas pipeline.
Perhaps most revealingly, the Trump administration sanctioned more than 50 Russian individuals and entities for their role in U.S. election interference. The president also signed an executive order imposing sanctions on any nation or individual who authorizes, directs, or sponsors meddling operations in U.S. elections.
Pacepa and the other Soviet expatriates to whom I spoke were certain that Russia tried to interfere with the election, as Mueller concluded. The Russians have done that for years. Computer hacking is an evolving specialty, so they are capable of doing more damage than in the past, but the effort is nothing new.
Russians were also able to plant stories online and drive them to the point where major media outlets could no longer ignore them. This is a traditional form of disinformation, used to shape the public perception, but social media has dramatically expanded the threat posed and damage that can be done in this manner. To the extent that Russians were hoping to sow discord and hamstring the U.S. presidency, they did pretty well. More than two years of investigation show that.
The common misperception, however, is that prior to the election, the Russians were working to secure Trump’s victory. That was probably not their goal. Like most Americans, they likely assumed that Clinton would win. Their efforts were aimed to weaken her, not defeat her.
Secrecy and Confidentiality
Trump’s detractors are having difficulty accepting the attorney general’s summary of Mueller’s report. They demand to see the entire report (most of which will likely soon be public) and the actual evidence that the Mueller team reviewed (which is far less likely to be made public). In normal cases, investigations that don’t lead to prosecution remain confidential. As frustrating as it may seem, the rule makes a lot of sense for a nation that values privacy.
Of course, the considerations in this case are different. There is greater public interest in the investigation of a president than there would be in other cases. There are, however, important security considerations regarding an investigation into governmental misconduct.
Part of that concern relates to the smooth functioning of the government. Some confidentiality is necessary for national security. In fact, that is the very reason for the existence of the FISA Court, from which the Department of Justice obtained a warrant to conduct surveillance on onetime junior Trump campaign staffer, Carter Page.
Just as important is the commitment to witnesses who came forward to testify. If they were told that their testimony would be held confidential—like any grand jury witness would have been told—that assurance should be honored.
This secrecy issue in grand jury matters was reviewed by the U.S. Supreme Court in Douglas Oil Co. of Cal. v. Petrol Stops Northwest, (1979). The court said that “if preindictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily,” and “witnesses who appeared before the grand jury would be less likely to testify fully and frankly.”
Witnesses who testify about potential governmental wrongdoing can be left in particularly vulnerable situations. They may face retaliation in a variety of ways. Confidentiality gives them a degree of security. Revealing their testimony or the evidence they provided may make it much harder to get witnesses to come forward for future investigations.
At the end of the day, we know Russian operatives tried to interfere with the U.S. election, they successfully fomented discord and interrupted the smooth functioning of the federal government, and they will try to do it again.
Moving forward, we need to remain alert, improve security, and actively look for disinformation. We also need to protect future investigations by maintaining the confidentiality of witnesses who came forward to help with this one.
Ronald J. Rychlak is the Jamie L. Whitten chair in law and government at the University of Mississippi. He is the author of several books, including “Hitler, the War, and the Pope,” “Disinformation” (co-authored with Ion Mihai Pacepa), and “The Persecution and Genocide of Christians in the Middle East” (co-edited with Jane Adolphe).
Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.