What Robert Mueller's lack of new indictments could mean for Donald Trump

Joyce White Vance

The Mueller report is here. We still don't know what's in it, but we know special counsel Robert Mueller is done with his investigation and will not be bringing more indictments. We don't yet know the full range of potential charges he considered, who he decided against indicting and what his reasoning was. We don't yet know how much of the report and the evidence will be released to the public.

The one thing we can predict with certainty is what Donald Trump's response will be: "No collusion."

We've seen hints of that already. Earlier this week, Newt Gingrich said that in the absence of legal action against Trump by the special counsel, investigation by House Democrats would be unjustified. We can hear the president’s cries of "WITCH HUNT" against the House already. Trump will use the absence of new indictments from the special counsel's investigation — no matter what its conclusions are — to attack and delegitimize congressional investigation, just like he attacked the Justice Department, the FBI and the intelligence community for investigating him.

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It's easy to make those kinds of claims when you're not accountable to the truth. For Trump, anything less than an indictment means he's innocent. But in a world where facts matter, that's not what it means.

It's possible Mueller didn't find evidence federal crimes were committed. It's also possible he concluded crimes were committed but he lacked sufficient evidence to bring charges. And as to the president, it's possible Mueller concluded there was sufficient evidence to charge him, but DOJ policy forbade indicting a sitting president.

We won't know the truth unless and until Attorney General William Barr makes the fullest possible release of the Mueller report, consistent with his commitment to transparency. Based on what we know at this point, be skeptical of any claims of innocence.

An American flag flies outside the Department of Justice in Washington on March 22, 2019.

Whether Trump could be indicted for any of his conduct, absent DOJ policy, is question reserved for the judgment of the prosecutors who analyzed all of the evidence, both inculpatory and exculpatory, and assessed its sufficiency.

Good prosecutors — and Mueller is a great one — don't bring indictments based on suspicion. They only proceed when an investigation produces evidence that would be admissible in court and sufficient to establish a defendant’s guilt beyond a reasonable doubt. A decision not to charge someone who has been under investigation does not mean that they are innocent.

What about the Southern District of New York

We do know that prosecutors in the Southern District of New York view Trump as an all-but-unnamed-co-conspirator to campaign finance fraud. Including "Individual 1" in an indictment is not a step the DOJ would have taken without deliberate consideration. Mueller stayed carefully within his jurisdiction to investigate collusion between the campaign and Russia and did not pass judgment, as far as we know, on evidence that has surfaced regarding potential crimes including campaign finance violations, financial misconduct related to the inauguration, and insurance and bank fraud involving the president's businesses. Investigation and decisions about charging those matters are still pending in both federal and state prosecutors' offices.

More: Here's why you should have faith in Robert Mueller and the Russia investigation

So the president cannot claim he has a clean bill of health because the special counsel didn't indict him.

There is abundant evidence in the public record — and no telling what else the investigation may have uncovered that we don't know about — of bad conduct by this president. Even if Mueller concluded that the president committed no crimes (we don’t know whether that is the conclusion he reached yet or not), criminal investigations will continue in other jurisdictions. And Congress has a separate obligation to engage in oversight and determine whether the president has engaged in misconduct that, while not a violation of the criminal code, constitutes high crimes or misdemeanors.

What does all of this mean for us?

First, Barr committed, in the letter he wrote to congressional leaders, to transparency. He told them he would share the "principal conclusions" Mueller reached with them this weekend. He said he would consult with Mueller and Deputy Attorney General Rosenstein to determine "what other information" from the report could be released to Congress and to the public. These are important commitments and we should hold him to them. In a matter so deeply important to the country, the public has a right to know.

Congress cannot engage in oversight without full transparency from DOJ. Congress must have access to Mueller's investigation, both the criminal side and counterintelligence assessments, to aid in its investigation. The country is entitled to no less.

But we, private citizens in this country, are also entitled to Mueller's conclusions. The attorney general should release the report, with necessary but narrow redactions, as soon as possible. We are not children, who can't be trusted with the family secrets. We are full participants in our country and we are entitled to the truth about this president and his presidency.

If Barr understands his job is to be the people’s lawyer, not the president’s, he will disclose the Mueller report publicly. But it doesn’t stop there. Each of us must read it carefully and draw our own conclusions about to its contents. We shouldn't accept the spin of a president or of pundits. This is the time to think critically about the facts – because there are facts and they still matter.

If the president claims investigation by Congress is a witch hunt because Mueller didn't indict him, we should remember that the criminal justice system and the legislative branch are assigned different responsibilities under the Constitution. If Trump twists the report’s language to delegitimize Congress' investigation, we must compare that claim to the actual findings Mueller made. And in the event significant portions of the report are not made public, we must consider what it means that Trump’s DOJ would do that.

Mueller's work may have ended. But ours has just begun.

Joyce White Vance is a former U.S. attorney in the Northern District of Alabama and a law professor at the University of Alabama School of Law. Follow her on Twitter: @JoyceWhiteVance

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This article originally appeared on USA TODAY: What Robert Mueller's lack of new indictments could mean for Donald Trump