Special counsel Mueller’s report does not “clear” the president of a charge that he conspired with the Russians to be elected. Instead, on Page 2 of Vol. 1, it merely says the special counsel “did not establish” this charge. It clearly says “A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.” Any claim that the president was “cleared” stems from a misunderstanding of what is required for a criminal conviction and of how prosecutors decide whether to prosecute crimes. In my experience back when I practiced criminal law, prosecutors, especially federal ones, file charges only when they think a jury very probably will find the suspect guilty beyond a reasonable doubt, which is the criminal standard of proof. Accordingly, Page 8 of Vol. 1 says the standard is “whether admissible evidence would probably be sufficient to obtain and sustain a conviction …” It is not enough that a prosecutor thinks the suspect probably committed the crime. The prosecutor must also think conviction is likely.

“Probably” is enough to win a non-criminal judgment for money, but not to convict someone of a crime. The O.J. Simpson case showed the difference. He was found not guilty of murder but was found liable for millions of dollars on the non-criminal charge of wrongful death. The criminal jury’s decision that Simpson was not guilty beyond a reasonable doubt did not conflict with the civil jury’s finding that he was liable, because the criminal standard of proof is much higher.

When a jury finds someone not guilty of a crime, they’re not saying “he didn’t do it.” Instead, they’re saying “we’re not sure beyond a reasonable doubt that he did it.” Similarly, when special counsel Mueller “did not establish” that Trump colluded with the Russians, that does not mean Trump didn’t collude. All it means is that Mueller did not think he could prove collusion beyond a reasonable doubt.

Herbert Ogden lives in Mount Tabor.

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