To understand the Mueller Report, which I have now read once (and I will re-read it multiple times), I have three initial observations:
1. To understand a report like this, the reader must keep in mind the three standards or levels of "proof" that U.S. courts use to determine facts in matters of controversy or dispute. The first two apply in civil cases; the third applies in criminal prosecutions.
A. The first, and lowest, level is "preponderance of the evidence," defined as "The greater weight of the evidence . . . though not sufficient to free the mind wholly from all reasonable doubt . . . still sufficient to incline a fair and impartial mind to one side of the issue rather than the other."
B. The second, and middle, standard is "clear and convincing evidence," defined as "[e]vidence indicating that the thing to be proved is highly probable or reasonably certain."
C. The third, and most difficult, level is "evidence beyond a reasonable doubt," defined as beyond "doubt that prevents one from being firmly convinced of a defendant's guilt, or the belief that there is a real possibility that a defendant is not guilty."
(For convenience, in lieu of case citations from the U.S. Supreme Court and other courts, all quotations above are from BLACK'S LAW DICTIONARY, Bryan A. Garner, Ed. (19th ed., 2015).)
2. Before a prosecutor brings criminal charges, s/he must be confident that s/he can present evidence to a jury to establish the facts -- "beyond a reasonable doubt" -- of a defendant's and others' conduct that meet the statutory tests for specific crimes. Mueller does not have such confidence. Because the evidence he was able to gather, within the timeframe of his work, left him was such a doubt, Mueller could not and did not conclude in his report that 45 is guilty of felony conspiracy. That demonstrates inadequacy of proof, which is not the equivalent of vindication. If the matter were a civil litigation, under either the "clear and convincing" standard or the "preponderance of the evidence" standard, conspiracy on the part of 45 was quite provable, and a civil plaintiff would recover against 45 both damages and injunctive relief. But this investigation was criminal, not civil, in nature.
3. Mueller was unable to obtain from 45 the answers to even one question. 45's lawyers convinced Mueller that 45 would not consent to answer any question and that his lawyers would fight any subpoena with every defense and legal maneuver they could interpose, the resolution of which disputes through the federal court system would have required until after the next presidential election. So Mueller proceeded to wrap up his investigation without that evidence. In essence, 45 "took the Fifth Amendment."
[We will all be discussing the consequences of the Mueller Report in the near future, but I wanted to get these initial thoughts out.]
