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On Exoneration, Prosecutors, and Innocence — Trump Vindicated
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Much has been made as to whether the Mueller Report’s declining to charge anyone else with substantive criminal conduct, and the subsequent decision by A-G Barr & Deputy A-G Rosenstein declining to pursue obstruction of justice charges, collectively constitute an “exoneration” of President Trump and his team as to alleged “collusion” with Russia to influence the outcome of the 2016 election.

Arriving at a clear conclusion divides largely along party lines. It is useful, then, to look at plain English and law dictionary definitions, and also at other critical elements of legal procedure, to decide what measure of exoneration, if any, has been granted.

Exoneration, per Dictionary English. Webster’s Universal Collegiate Dictionary offers two definitions: (1) to clear from accusation, guilt, or blame; (2) to relieve from an obligation, duty, or task. Roget’s Thesaurus, 4thed. refers exoneration to acquittal (not guilty) and pardon (forgiveness).

Exoneration, per Law Dictionary Legalese. Black’s Law Dictionary, 10thed., offers three definitions, the first two of which pertain to our inquiry (the third involves suretyship, which you may pursue at your leisure): (1) the removal of a burden, charge, responsibility or duty; (2) the right to be reimbursed for by reason of having paid money that another person should have paid.

Exoneration, in Criminal & Civil Cases. Under American law, a verdict in a criminal case is binary: guilty, or not guilty. (There is no intermediate Scottish verdict: “not proven.”) In a civil case the binary choice is liable, or not liable. N.B., In neither instance is there a formal legal finding of innocence. Absent a conviction, defendants are generally entitled to be presumed innocent, unless a verdict is clearly tainted. (O.J., where are you now looking for the “real killer”?)

Above all, prosecutors are tasked not with convicting defendants, but with doing justice to them: if evidence shows a defendant not guilty, they must disclose this to the court and let the defendant go free.

Evidence in a particular case may indeed establish innocence in fact. If defendant can prove presence elsewhere at the time of the crime, actual innocence in fact is established. But many cases are not location-specific. No president can reasonably expect to prove innocence in fact, given countless location-independent, multi-layered events that are spread over one — let alone, two — presidential terms.

Standards of proof also must be factored in the exoneration equation. In a criminal case, the prosecution bears the heaviest burden: proof beyond a reasonable doubt, often described as proof to a moral certainty. Such a level of certainty is not empirical certitude, which would be 100 percent — proof beyond a shadow of a doubt.

In a civil case there are two regnant standards. The ordinary civil case requires that the plaintiff prove by a fair preponderance of the credible evidence. Loosely this may be equated to 51 percent. That number is not purely quantitative; quality counts as well. Thus DNA evidence can count for more than a hundred eyewitnesses. Certain classes of civil actions saddle the plaintiff with a higher burden of proof: clear and convincing evidence. This acts as an intermediate level, lower than the criminal case standard, but higher than a simple civil case. This is done in cases where fraud is easily alleged, and hard to rebut — such as in a will probate contest, where the best evidence — the testimony of the decedent — is forever unavailable.

There are lower evidentiary hurdles, which also shed light on the exoneration issue. The prosecutor must establish a prima facie case in order to get to court and present the evidence to a jury. Black’s defines this, stripped of excess legalese, as evidence sufficient to bring the case into court, thus creating a rebuttable presumption that the opposing side must counter by presenting contrary evidence. In a civil contest each side can make a motion for summary judgment, which a judge can grant in favor of either party if there is no genuine issue of material fact (“material” is legalese for “important”), to present to the trier of fact in court (usually a jury, sometimes a judge).

This is a low hurdle to clear, well short of a preponderance, let alone, higher standards of proof. Thus, a decision by prosecutors that insufficient evidence exists to bring the case to court is vastly stronger a vindication for a defendant than an acquittal. It is, in fine, as close to exoneration as a defendant can get in our system.

Add in the Mueller investigation metrics:

675 days
19 lawyers
40 FBI agents
2,800 subpoenas
500 search warrants
500 witness interviews
230 oral communication record requests
50 “pen register”phone wiretaps
13 foreign governments contacted
2 pre-dawn SWAT raids
$25 to $40 million spent

Now add in, finally, the pressures Mueller & Co. put on certain defendants, most notably, in the case of Michael Flynn, the president’s original national security adviser. Flynn pleaded guilty to one felony count of making a false statement to federal officials, as to his end-2016 conversation with Russia’s then-ambassador to the U.S. (This was not perjury, as Flynn’s statement was not made under oath.) His plea agreement specifically included the prosecution agreeing to not prosecute anyone in his family. Flynn and his son had failed to register under the Foreign Agents Registration Act (FARA) as a foreign agent of Turkey; Justice alleged a $15 million payment. Thus the Justice Department’s own FARA guidelines state:

The threshold for a criminal investigation is the presence of reason to believe that a significant FARA offense has been committed and that sufficient evidence should be available to prove this. The common threads of the last four FARA criminal investigations were: millions of dollars in receipts or expenditures by the prospective defendants; “core” violations of FARA with jury appeal; and evidence of willfulness.

Further, Flynn’s two interrogators, one of them Peter Strzok, the rabidly anti-Trump FBI agent, concluded that Flynn’s misstatements about his meeting with the ambassador were not clearly deliberate, but rather were memory slips. Rarely does a prosecutor who did not participate in such an interview overrule those who conducted it, because only the interviewers can assess the interviewee’s “demeanor evidence” — voice intonation, nonverbal signals such as nervousness or evasiveness, lack of eye contact, etc. Only if there is a video recording of the interrogation, that the prosecutor can review — not the case here — is a foundation properly laid for the prosecutor to overrule the interviewers.

So why did Mueller overrule them? Because he wanted to coerce Flynn into cooperating with the government by implicating higher-ups. Flynn faced the Hobson’s choice of pleading guilty to prevent his son’s life from being ruined, or accepting the humiliation of pleading to a felony charge. He was of course obligated to tell the judge that his plea was voluntary; the judge completed the two-step by accepting a plea he surely knew was likely coerced. Yet Flynn clearly did not provide evidence implicating his presidential boss. At this writing he awaits sentencing. (This hardball by Mueller makes Flynn an excellent candidate for a presidential pardon.)

Few on the left care, but one prominent lefty, Glenn Greenwald of The Intercept, shredded the Russian collusion narrative, posting this:

The Mueller investigation is complete and this is a simple fact that will never go away: not one single American was charged, indicted or convicted for conspiring with Russia to influence the 2016 election — not even a low-level volunteer. The number is zero. (Italics mine.)

Bottom Line. Thus a monumentally aggressive, protracted prosecution, with an unlimited budget, exploring worldwide every nook and cranny of potential evidence, directed by a prosecution team loaded with Hillary contributors, carried out in the roiled waters of a mainstream fake-news media white-shark feeding frenzy, failed to yield enough evidence to even get prosecutors into court and present the case to a jury. A stronger rejection of the Russia criminal collusion accusations (the precise legal term is conspiracy) against Team Trump is hard to imagine. It amounts to a de facto exoneration of the president and his associates.

Yes, technically, exoneration is not a de jure finding of innocence — nothing in our legal system is. It is a prosecutorial recognition that justice requires dropping charges for want of sufficient evidence. In the political context, it leaves to voters the final call. As well it should.

John C. Wohlstetter is author of Sleepwalking With the Bomb (2d Ed. 2014).

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