On Wednesday, Special Counsel Robert Mueller finally emerged from the shadows to make a declaration: he’s leaving, and he’s taking the dog. According to Mueller, his job here is finished, since his 448-page report on Russian election interference and Trump administration obstruction has concluded. What’s more, according to Mueller, the country is better off for the Mueller investigation having taken place, despite two years, billions of dollars in media coverage, and no actual conclusion.
There were a few key messages in Mueller’s valedictory.
1. Mueller’s Original Brief Was Limited. Mueller began his statement by recognizing that his original brief was to investigate “Russia’s interference in the 2016 presidential election.” He proceeded to outline the fact that this interference was highly damaging to the political process: “As alleged by the grand jury in an indictment, Russian intelligence officers who are part of the Russian military, launched a concerted attack on our political system.” All of this is fine and dandy; there’s little controversy over any of it.
2. Mueller’s Investigation Never Should Have Included Obstruction by Trump. Mueller then moved on to his explanation of his investigation of obstruction. Unlike the election interference investigation, which began as a counterintelligence investigation inside the FBI, the obstruction investigation began as a criminal investigation – and a criminal investigation that Mueller admits he never had the authority to conclude. Mueller stated regarding Russian interference, “It was critical for us to obtain full and accurate information from every person we questioned. When a subject of an investigation obstructs that investigation or lies to investigators, it strikes at the core of their government’s effort to find the truth and hold wrongdoers accountable.” That would be true of Trump’s associates. That would not be true of Trump himself – Mueller recognizes that he never had the authority to indict a sitting president. He explained:
[U]nder longstanding department policy, a president cannot be charged with a federal crime while he is in office. That is unconstitutional. Even if the charge is kept under seal and hidden from public view, that, too, is prohibited. A special counsel’s office is part of the Department of Justice, and by regulation, it was bound by that department policy. Charging the president with a crime was therefore not an option we could consider.
Yet Mueller proceeded to write two hundred pages about Trump himself, and his conduct. This means that Mueller spent tens of millions of dollars and years of time investigating unindictable conduct. So what the hell was he doing? Mueller provided two separate explanations for the investigation of Trump’s conduct: first, he said, the investigation was permitted because it is “important to preserve evidence while memories are fresh and documents available.” Evidence of what, though? A crime? But Mueller refused to allege a crime. So evidence of something — something that wasn’t prosecutable right now, and that Mueller refused to suggest amounted to a crime for the future. Mueller himself said the investigation was justified because perhaps it would have resulted in evidence that “could be used if there were co-conspirators who could be charged now.” But Mueller didn’t charge co-conspirators in obstruction. This is bizarre, at least.
Mueller’s second justification is more obvious: he essentially said he was doing Congress’ impeachment groundwork for them. “The Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing,” Mueller stated. This is an invitation to impeachment.
But that’s not Mueller’s job. He is a member of the executive branch. He is not an independent counsel. He is not a legislative investigator. A criminal investigation that cannot possibly result in charges is a conflict in terms. Mueller never should have agreed to such an investigation under the law, and Mueller’s own standard makes that clear.
3. Mueller Wants Trump To Go Down, But Wouldn’t Call For Prosecution. Mueller infamously stated that there was “insufficient evidence to charge a broader conspiracy.” So far, so good. That’s a prosecutorial statement in prosecutorial language. But then Mueller wildly exceeded his brief. In fact, he pulled a James Comey: he effectively indicted Trump for supposed non-crimes publicly, the same way Comey did Hillary Clinton. Of course, said he would never do that: “It would be unfair to potentially — it would be unfair to potentially accuse somebody of a crime when there can be no court resolution of the actual charge.”
That’s pretty rich, coming just paragraphs after Mueller accused Trump of a non-crime without the possibility of resolution of the actual charge:
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….we concluded that we would not reach a determination one way or the other about whether the president committed a crime.
Trump’s opponents have hung their hats on this statement to show that Trump only escaped prosecution because he was the president, and because of the Department of Justice regulations. But that’s not quite right. In actuality, Mueller said that the DOJ regulations created a threshold barrier to a decision: he had no right to make a decision, he said, because no prosecution was available. Thus, he made no decision. Instead, he decided to publicly say he could not exonerate Trump. Now, presumably that remark was directed toward Trump’s false statements that he had been totally exonerated. But it was partisan and inappropriate for a man of Mueller’s stature: the comments effectively shifted the burden of proof from Mueller to Trump himself.
It’s not Mueller’s job to exonerate anyone. It’s his job to prosecute or not prosecute. Instead, he told everyone that Trump might be prosecutable, but he couldn’t really say, but still, there might be impeachment available. The proper language here would have been the same as the language surrounding collusion: “insufficient evidence.” But instead, Mueller refused to say even that.
Was any of this supposed to be in the purview of Mueller’s activity?
4. Mueller Didn’t Expose Barr As A Perjurer Or Obstructor Of Justice. Barr stated in public testimony that Mueller told him “several times in a group meeting that he was not saying that but for the OLC opinion he would have found obstruction.” Here, Mueller stated that he could not prosecute, and that he would not say whether Trump had committed a crime. These two statements are not actually in conflict. Mueller may well have told Barr that he had not reached a determination on obstruction, and that he saw no reason to do so. That’s what he told the public, after all. Furthermore, Mueller explained that he didn’t question Barr’s “good faith” in his decision to “make the entire report public all at once.” So much for Barr’s supposed obstruction.
Then, Mueller said that he was out. Done. Finito. He explained that, having created a political Rorschach test, he would now act like Watchmen’s Rorshach: “all the whores and politicians will look up and shout: ‘Save us!’ And I’ll look down and whisper, ‘No.’” Mueller stated, “the report is my testimony. I would not provide information beyond that which is already public in any appearance before Congress. In addition, access to our underlying work product is being decided in a process that does not involve our office.”
Did Mueller clarify anything today? Only that he exceeded his original mandatethat after conducting a thorough investigation, he was willing to inject himself into the political process rather than sticking to his role. That’s damning not just for Trump – who will now have to face down Democrats calling for his political head – but for a career prosecutor who decided that the business of criminal prosecution was too difficult, and that he’d prefer to serve as a roadbuilder for impeachment.