The Mueller Report: Initial Thoughts

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.]

Law and Literature -- my review of a novel by a Dallas bankruptcy judge




"Law and Literature," as I note in my review of a novel by a Dallas bankruptcy judge, "is the subdivision of legal studies that looks beyond statutes, formal rules, and reported cases to assess how fiction and other works of literature reveal popular perceptions of doctrines, practices, and legal institutions at certain times; how fiction represents and illustrates law at work; and how it can show or reflect on legal thought, legal methods, or legal ways of understanding and explaining life."

Josiah M. Daniel, III, A Review of Stacey G.C. Jernigan, He Watches All My Paths
(2019), State Bar of Texas, Bankruptcy Section, Newsletter (April 2019 — Spec. Ed.) available at https://statebaroftexasbankruptcy.com/resources/Documents/Newsletters/43604-Bankruptcy%20Law%20Special%20Edition%20Newsletter%2019%20P5%20update%204_16.pdf 
(citing Simon Stern, Literary Analysis of Law, Ch. 4 in Marcus D. Dubber & Christopher Tomlins, eds., The Oxford Handbook of Legal History 63-64 (Oxford, 2018)).



Archives and Special Collections--Current Issues

Harry Hunt Ransom (1908-1976) was born and raised in Galveston and attended and graduated from Sewanee in 1928. He then earned the M.A. and Ph.D. in English at Yale. His career was at UT Austin, where he ultimately became President and Chancellor. His greatest legacy is the Harry Ransom Center (the “HRC”), located on the southwest corner of the Austin campus; it is, simply put, one of the preeminent literary archives and library of special collections in the world.

My wife and I just attended the April 4-6, 2019, symposium at the HRC on the broad topic of “Ethical Challenges in Cultural Stewardship.” Foresightedly, the HRC formulated an agenda for short presentations and panel discussions that illustrate and illuminate the cutting-edge issues that the HRC and all such collections are or should be addressing, such as: where a collection really belongs; ethical issues in the reexamination of existing collections; how should institutions responsibly collect, curate, interpret, and provide access to records of oppression, hate, and violence; the ethics of decision-making about deaccessioning, repatriation, and change in mission; and how institutions should confront and rectify exclusionary practices. 

For myself, engaged in archival research for two projects, listening to the presentations of the people identified on the program agenda (https://www.hrc.utexas.edu/flair/schedule/) reminded me to be alert and sensitive to what is often missing in archival documents, the voices of indigenous people, of the victims of hate, violence, oppression, and of those who have been oppressed, excluded, or forgotten.

The HRC deserves congratulations and thanks for sponsoring and hosting this symposium. Happily the proceedings were webcast to an even larger larger audience. I hope the video may be made available over the internet; it deserves to be watched and heard by many more people who care about archives, libraries, and museums

All presenters were of the highest caliber and the resulting conversations were of a very high order. And the choice of keynote speaker was inspired: the popular writer Joyce Maynard (pronounced, I learned, may-nard') whose talk included a frank discussion of the letters from J.D. Salinger that persuaded her, as an 18 year old, to drop out of Yale and to move in with him in New Hampshire for 11-1/2 months, letters she later sold for money she needed, letters a purchaser paid a lot for and then returned to Salinger for what Maynard believes was certain destruction. . . .