Mueller Report: What Does “No New Indictments” Mean?

Shortly after Robert Mueller delivered his report to the Attorney General, a senior Justice Department official stated that Mueller “would not recommend new indictments.”

Unpacking this seemingly straightforward statement is more complicated than it might appear at first glance.  It conveys less, not more, than meets the eye.

Mueller was appointed as Special Counsel to conduct a relatively narrow investigation into alleged links and/or coordination between the Russian government and individuals associated with the Trump campaign.  Rod Rosenstein’s appointment letter also authorized Mueller to investigate and, if appropriate, prosecute crimes arising from the investigation and crimes committed with the intent of interfering with the Special Counsel’s investigation.

It is almost unthinkable that Mueller would have ended his investigation leaving his core charge, investigation of crimes arising out of coordination between Russia and Trump, undone.  Therefore, “no more indictments” almost certainly means that the Special Counsel concluded that there was insufficient evidence to charge individuals involved in the Trump campaign with crimes arising out of coordination with Russia to interfere with the 2016 presidential election.  If Mueller had found evidence sufficient to support indictments for such crimes, he would have brought them.

Yes, it is theoretically possible that he found that Donald Trump himself had engaged in a criminal conspiracy with Russia, but still decided not to indict him because of the DOJ’s position that a sitting president can’t be indicted.  But that seems unlikely.  If Trump had engaged in a criminal conspiracy with Russia, most likely others, such as Don Jr. and Michael Flynn, would also have been implicated.  They have no presidential immunity from prosecution, and they appear to have had much more direct participation than Trump in interacting with Russians during the campaign. 

The fact that none of them were charged with conspiracy is a good sign for Trump.

But that’s pretty much the limit of the good news for Trump in the “no new indictments” statement.

“No new indictments” does not mean that either Trump or those around him have been exonerated from other crimes that were uncovered during the course of Mueller’s investigation, including crimes relating to interference with the investigation, such as obstruction of justice.

As to Trump himself, “no new indictments” could mean nothing more than that Mueller decided to follow the DOJ policy that a sitting president can’t be indicted.  Indeed, Attorney General Barr’s letter to Congress on receipt of the Mueller report strongly suggests that Mueller did, in fact, accept that policy as guidance.  In that letter, Barr stated that there were no instances in which the Attorney General concluded that a proposed action by the Special Counsel was so unwarranted “under established Departmental practices” that it should not be pursued.

That means that Mueller could well have concluded that Trump committed any number of indictable crimes, including obstruction of justice, but declined to indict only because of DOJ policy.  In that case, Mueller could refer his findings to Congress for impeachment consideration, or to the Southern District of New York or some other DOJ office for further investigation and action after Trump leaves office, or simply set out chapter and verse in his report and let nature take its course.

In other words, any and all possible criminal charges against Trump, with the possible exception of conspiracy with Russia, remain squarely on the table.

So do possible charges against Don Jr., Jared Kushner, Ivanka, and others.

Mueller’s failure to charge them with crimes uncovered during the course of his investigation doesn’t mean he didn’t uncover any.  Mueller could have found compelling evidence that those individuals committed a variety of crimes, including perjury, campaign finance violations, conflicts of interest and other financial wrongdoing, and referred that evidence to other law enforcement agencies for further investigation and, if warranted, prosecution. 

Why would Mueller refer those matters to other agencies, rather than bringing the indictments himself?

Mueller easily could have concluded that such crimes didn’t go to the core of his investigation, Russian collusion, and therefore were best pursued by the Southern District of New York or other law enforcement agencies.  That would allow him to wind up his investigation sooner and not remain embroiled in years of prosecutions only marginally related to his core charter.  It would also insulate him from the charge that he strayed far beyond his original charter, a charge that quite appropriately dogs Ken Starr to this day, years after conclusion of his Clinton investigation.

So what’s the takeaway here?

Nothing more or less than don’t read too much into the “no new indictments” statement. 

It doesn’t mean that anybody has been exonerated, except possibly from charges relating directly to collusion with Russia, and possibly not even that.

It only means we don’t yet know near enough to jump to any conclusions about the Mueller report.