“If we had had confidence that the president clearly did not commit a crime, we would have said so. We did not, however, make a determination as to whether the president did commit a crime.”
Those are the words of special counsel Robert S. Mueller III, who yesterday provided a very brief summary of his now concluded investigation into Russian interference in the 2016 U.S. Presisdential election. You can view Mueller’s announcement below or read his full remarks here.
Some talking heads evidently think it is still an open question whether Mueller uncovered sufficient evidence (sufficient for an hypothetical indictment) that Trump committed obstruction of justice, because Mueller says he wasn’t authorized to make that determination. But obviously if the latter is true, then Mueller also wasn’t authorized to make a determination concerning whether Trump conspired with Russia, yet Mueller explicitly says that he found insufficient evidence that Trump conspired with Russia. Mueller goes further: he says that there is also insufficient evidence to exonerate Trump of obstruction. And he insists his report “speaks for itself.”
He is clearly inviting his audience to draw the obvious inference: if Mueller had found insufficient evidence that Trump obstructed justice, Mueller would have said so & would thereby have exonerated Trump of obstruction of justice. He didn’t say so & didn’t thereby exonerate Trump; therefore, it is not the case that Mueller found insufficient evidence that Trump obstructed justice. That is, although he can’t officially say so, Mueller found sufficient evidence (sufficient for an hypothetical indictment) that Trump obstructed justice.
Mueller’s unspoken position is this: “I’m not allowed to say that Trump obstructed justice. But if Trump hadn’t obstructed justice, I could say so & I would have. I didn’t. In fact, I explicitly said that I’m not saying that. You do the math.”
David Chalmers replies:
question: does not finding insufficient evidence entail finding sufficient evidence? or it is possible to be in an in-between state where one neither finds insufficient evidence or sufficient evidence? i guess it depends on whether or not “finding” creates an intentional context here. if it does, i.e. if “finding sufficient evidence” is like “find that the evidence is sufficient”, then presumably an in-between state is possible. if it doesn’t, i.e. if “finding sufficient evidence” is like “touching sufficient evidence”, then presumably the entailment goes through. so trump has some very narrow breathing room as long as mueller is using “finding” the first way and was genuinely unsure whether the evidence was insufficient or sufficient. who knew that the upshot would turn on excluded middle in intentional contexts?
it might be that in this special context finding creates a forced choice that excludes the middle: i.e. since prosecutors normally need to decide whether or not to proceed with a charge, they normally must either find that there is sufficient evidence to proceed or find that there is insufficient evidence to proceed. mueller wasn’t in quite that situation here, but it’s arguable that he would still apply the same principle, i.e. if he didn’t find that there’s sufficient evidence, then he’d report that there’s insufficient evidence.
Granting this subtle issue, I think Mueller is tacitly inviting his audience to draw the cited inference even if it is strictly invalid. (I suspect Mueller is tacitly assuming that, in the present case, whether evidence is sufficient for an hypothetical indictment is sufficiently transparent to a prosecutor.) He is clearly annoyed that Barr might have muddied the water sufficiently to prevent analysts from seeing his point: “I can’t officially say that Trump obstructed justice. But if he hadn’t obstructed justice, I could say so and I would have. And I didn’t say so, now did I? In fact, I explicitly said that I’m *not* saying that. You do the math. I’ve done my part. So Congress, get with the program & do yours. The evidence you need is all laid out in Volume II.”
So confused. Mueller says, (1) if we were confident president did not commit a crime, we would have said so & (2) we concluded we would not reach a determination one way or another about whether the president committed a crime. You cannot assert both of these.
They could’ve asserted (a) Trump committed a crime or (b) Trump did not commit a crime. He explained that, since a sitting president cannot be charged with a crime, they wouldn’t assert either ((2) above). But in (1) above he says that they would’ve asserted (b) if they could’ve… And by “if they could’ve” I mean: had sufficient evidence to support (b).
And then clarifies:
There is a contradiction in what he said. He said: (1) we decided not to determine “one way or another” whether Trump obstructed; and he said, (2) we would’ve said that he didn’t obstruct justice if we had sufficient evidence for that. That’s a contradiction.
Philosophers, do you have thoughts on the logic of Mueller’s remarks?