Last week, after two years as Special Counsel to the Justice Department’s investigation of Russia’s meddling in the 2016 presidential election and related matters, and two months after transmitting his report to Attorney General William P. Barr, Robert S. Mueller, heading out the door on his last day on the job, appeared at last to deliver a nine and a half minute statement to a hastily assembled press corps, from which he took no questions.
For those two years, Mueller, formerly Director of the FBI, had been Washington’s great invisible man, his presence everywhere felt but nowhere seen. With a broad mandate to follow the Russian trail wherever it led, Mueller’s task force presented a series of indictments that included Trump’s national security advisor, his campaign manager in the crucial spring and summer of 2016 and his personal attorney, coming ever closer to the White House throne itself, leaving the President increasingly vocal and at last hysterical in his denunciations of it.
And as Trump’s abuses of power piled up, the Mueller investigation came more and more to be seen as the moment of truth that, amid 10,000 lies (the documented number from Trump’s mouth alone), would save the Republic. It was too much to expect and far more than delivered. The report itself came swathed in lies, as Barr preempted it with a “summary” that, preceding its redacted release by two weeks, deliberately misrepresented its substance and conclusions, as Mueller complained in a letter to him. Barr, in a sneering appearance before Congress, dismissed Mueller’s letter to him as “snitty” and questioned whether he himself had actually written it — an extraordinary insult to one of the most respected figures of the Washington establishment.
Still, Mueller held his fire publicly until the last possible moment, and even then, simply paraphrased material from the report itself. With that, he disappeared, requesting that he not be questioned in any forum, including Congress. His testimony, he said, was the Report itself. Well, what did it say — and what doesn’t it? The first volume of the report is a sobering account of Russia’s hacking and false messaging through social media, all devoted to assisting the Trump campaign. It is richly detailed but for critical omissions relating to Trump and several key members of his family, who were never interviewed in person. And it reached the conclusion that the evidence did not support charging the campaign with conspiring with Russia to turn the election, despite repeated contacts and exchanges of information between the two.
Naturally — the Trump campaign didn’t conspire. It openly collaborated, most obviously in Trump’s own public call to Moscow to hack into Democratic Party computers, a service that promptly resulted. The call itself was a brazen violation of federal statutes, as was Donald Trump Jr.’s notorious June 2016 meeting with Russian officials to get “dirt” on Hillary Clinton, which Trump Sr. not only falsely denied knowledge of but whose substance he surreptitiously misrepresented. Crimes, yes. But criminals? Apparently, none.
The report’s second volume covers the question of whether Trump obstructed justice in the Mueller investigation itself. Here, 11 instances are set out, including a presidential order to fire Mueller and another to lie about having done so. Five of Mueller’s examples satisfy all Justice Department criteria for bringing criminal charges. Mueller brought none, stating only that the evidence did not exonerate Trump, and, in his press statement, that his investigation did not conclude that the President had not committed a crime — a double negative as dubious in law as in grammar.
Mueller’s stated reason for not finding actual obstruction as opposed to mere illustrations cases was that he was governed by a 1974 opinion of the Justice Department’s Office of Legal Counsel that a sitting president cannot be criminally indicted. This was and remains just what it says it is, an opinion. It is not a statute or other limitation imposed by Congress, and, despite Mueller’s contention that to bring such a charge would have been “unconstitutional,” does any language in the Constitution prohibit it or any court decision suggest it. No doubt it is embarrassing and inconvenient for a head of state to face a criminal charge while in office, but Prime Minister Benjamin Netanyahu of Israel has faced and may soon again face such charges, and the Israeli judiciary does not seem to think the country is thereby endangered.
What is dangerous is permitting anyone, for any length of time, to be above the law. Standing Justice Department guidelines do permit an investigator to affirm that federal crimes have been committed, even if the presumed offender is not directly charged. Mueller could have exercised this option, which would have amounted to a referral to Congress as the appropriate body to judge presidential misconduct. It was clear from Mueller’s press statement that he believes such a referral to be not only appropriate but necessary. What he has not done to date is to say so directly, even after Barr, without evidence or argument, preempted the prerogative of Congress by delivering his own verdict clearing Trump of obstruction.
In Mueller’s tortured view, then, he was able to conclude that Trump had not committed one offense, but unable to conclude whether he had committed another. You can’t have one power, though, without having both — that is, the power to reach a conclusion about a preponderance of innocence without the corresponding authority to find a preponderance of guilt. Even Barr thought that was a contradictory position, as ready as he was to profit by it on behalf of his presidential client.
The Mueller Report thus provides a road map for impeachment but without any directional signals. Read it, then, and weep — or, if you so choose, act. In a gentleman’s world, the report as written might suffice. In that of Donald Trump, it is so much wasted ink. Robert Mueller needs to testify before Congress and do some plain talking. As Donald Trump says, the Mueller investigation cost a lot of time and money. The public ought to know why a report that says so much appears to mean so little.