Reading this Franklin Foer piece applauding the Mueller report, I’m stuck again by the bizarre way that journalists are summarizing Mueller’s (apparently) not recommending charges against Trump for criminal conspiracy.
Foer writes that “In the case of Trump, the corruption doesn’t seem to have transgressed any laws.” That is a remarkable statement to present as fact, and I think the implication about the Mueller report is misleading, given what we currently know about it.
This is the same feeling I had with Rod Rosenstein’s infamous letter about James Comey, when the mainstream media seemed to spontaneously mount the collective delusion that Rosenstein had recommended Comey be fired, which Rosenstein did not explicitly do — and, in fact, seems to me to have carefully avoided doing. (Don’t take my word for it — go reread the letter.)
Assuming we can trust Barr’s direct quotes from the report, it appears that Mueller’s team did not find sufficient evidence to conclude that Trump or his campaign “conspired or coordinated” with the Russian effort to intervene in the election. It also appears to conclude that the evidence available to Mueller does not establish that Trump committed any crime.
That’s significant, and it shouldn’t be downplayed. But it’s very, very different from concluding that there exists no evidence that Trump or his campaign coordinated with Russia, or committed crimes doing so.
First of all, at the very least, we’ve all seen Donald Trump Jr.’s repeated emails acknowledging and approving “Russia and its government’s support for Mr. Trump”, and making a recommendation on when to release the “high level and sensitive information” that consisted of “official documents and information that would incriminate Hillary”. How specifically Mueller describes this and other strong evidence of coordination is unknown, since Trump and Attorney General Barr are keeping the Mueller report secret, but our own understanding of it does not need to wait for the Mueller report.
We also know that there is evidence that was never produced. Significantly, Trump did not give live testimony to Mueller’s team. Whether this constituted “refusal” to testify is a matter of some interpretation, because it appears that Mueller did not press the matter. Whether that was because Mueller did not want to politicize the inquiry, or didn’t want to risk a constitutional crisis from Trump’s refusal, or was satisfied with responses written by Trump’s lawyers (with the opportunity of syncing any false responses with other witnesses), I’m not sure.
We also know from Mueller’s various criminal charges, and from the public record of confirmation hearings and filings, that there was false testimony from many of the principals of the Trump campaign, and that the campaign actively hid or obfuscated at least some information, probably criminally. Did Mueller find and resolve all instances of this? It’s possible, but far from certain.
Anyone who has spent any time observing the criminal justice system knows that the conclusion of a criminal investigation results in, at best, the investigators’ best attempt at finding the truth. But most of the time — perhaps nearly all of the time — the result is only an approximation.
The whole point of the presumption of innocence in criminal cases is that the burden of proof is not on a suspect or defendant to prove innocence. But the equally significant corollary is that a suspect or defendant not charged or found guilty cannot claim, on merely that basis, to have been determined to be innocent.
This is almost laughably obvious and commonly understood by any middle schooler who watches an episode or two of Law & Order, which is why it’s so strange the NY Times, The Atlantic and other publications have run misleading summaries of Mueller’s findings, suggesting that Trump has been found to be innocent by the facts.
I wonder if there is a journalistic bias at play here. I’m not referring to a bias to the left or right; I’m referring to a journalistic preference: a preference for presenting themselves as knowing and digesting the facts for readers, rather than being as much in the dark about the facts as we are.
Which of these headlines do you think the Times prefers its readers to see: “Mueller Finds No Trump-Russia Conspiracy”, or “Mueller Gives Up on Determining Trump-Russia Conspiracy”? One is true per what the Times knows, the other false. But more importantly, one appears strong and informative, whole the other appears weak and uninformative, at a glance.
If everyone else is repeating the takeaway that the report exonerates Trump, and the NY Times is more cautious — even allowing that we trust Barr’s summary, the NYT isn’t playing the part of the confident, ahead-of-the-story fount of up to date information that readers want.
And ask yourself, if you saw both headlines side by side in two different papers, which would you reach for?
The point is that these moments give us insight into the nature of the news business, which is to serve readers an ongoing story about the publication and about themselves. Each headline, each story must ultimately conform to the story that the NYT makes me an informed person.
The gap between that core focus of the newsroom, and the supposed focus on reporting the most important stories accurately, is usually mostly hidden from us. We don’t know all the stories we don’t see, which is why most avid readers if the Times couldn’t tell you (in one of my favorite examples) that all available evidence suggests that two of Trump’s wives have been illegal immigrants, including the First Lady. It’s why family separation wasn’t a public issue under Obama, though the NYT clearly could have made it one.
When you read the news, remember that you are being sold a story by journalists and organizations which — in practice if not in name — prioritize their own authority over the accuracy or relevance of its reporting.