Andy McCarthy criticizes Robert Mueller’s for “abdicating” on the issue of obstruction of justice — that is, leaving it to Attorney General Barr to decide whether President Trump committed that criminal offense. I made the same point here.
McCarthy highlights the fact that Mueller knew Barr would find no obstruction of justice by Trump. Mueller knew this from Barr’s commentary on the issue as a private citizen.
Barr argued that the obstruction theory Mueller’s staff appeared to be pursuing is constitutionally infirm. He contended that an indictment of a president for obstruction could properly be based only on plainly corrupt acts like tampering with evidence and witnesses, not on constitutionally ordained exercises of presidential prerogative like firing an FBI director.
Because there was no evidence of such plainly corrupt action, Mueller must have assumed Barr would conclude Trump did not obstruct justice.
Barr did so conclude. However, he made it clear he was not basing this conclusion on constitutional consideration, but rather on the lack of sufficient evidence establishing the elements of obstruction, especially the element of intent.
Why did Mueller punt? In theory, there are at least four possibilities. First, he didn’t think it was his job to state a firm conclusion. Second, he concluded that there is no sound basis for recommending the prosecution of Trump, but didn’t want to say so. Third, he concluded that there is a sound basis for recommending the prosecution of Trump, but didn’t want to say so. Fourth, he couldn’t make up his mind.
Without knowing much about what’s in the report, weighing the plausibility of these theories requires a good deal of speculation. My speculation is below. For those who want the short version, I speculate that Mueller concluded there is no sound basis for prosecuting Trump, but didn’t want to say so, probably at least in part to satisfy his staff.
The first and fourth possibilities seem quite implausible. Nothing I know of about Mueller suggests that he’s too indecisive to make big calls even in cases he considers close (theory #4).
Nor could Mueller rationally have concluded that it wasn’t his job to make a recommendation (theory #1). As I pointed out here, the very point of having a special counsel is the view that judgments as to whether the president committed a crime should be made by someone independent of the president, rather than by a presidential appointee.
As to the third theory, it doesn’t seem likely that Mueller concluded there was a sound basis for prosecuting Trump, but didn’t want to say so. For one thing, if that’s what happened, word of it would likely come out, and Mueller would be disgraced in the eyes of the media and the left. For another, Mueller knew that leaving the decision to Barr would result in him finding no obstruction, meaning that the outcome Mueller viewed (in the theory #3 scenario) as incorrect would prevail.
Thus, I think the most likely explanation for Mueller’s punt is that he believed Trump didn’t commit the offense of obstruction, or that the evidence that Trump did wasn’t strong enough, but didn’t want to say so.
There are several reasons why Mueller might not want to give Trump a complete exoneration. These reasons are not mutually exclusive. In fact, they may be overlapping.
First, Mueller might believe that Trump, though not provably guilty of a crime, committed serious misconduct, and therefore didn’t deserve a full bill of good health. In this scenario, we can compare Mueller’s position to that of James Comey in the Clinton email investigation.
Comey apparently thought that Clinton engaged in serious misconduct. Thus, rather than give her a complete pass, he broke with Justice Department practice and criticized her at some length before concluding she did not commit a crime. Mueller similarly might not have wanted to give Trump a full pass for conduct that, in his view, approached (but did not reach) illegality.
Second, Mueller might simply deplore Trump too much to give him a full pass. He might have been strongly predisposed against Trump. Moreover, the president repeatedly called Mueller’s investigation a “witch hunt,” attacked Mueller’s team members as partisans, and refused to be deposed. I’m sure this did not sit well with the special counsel.
In my view, though, it is unfair to assume that Mueller acted out of personal animus towards Trump. His reputation for integrity cuts against that assumption.
But what about Mueller’s staff of partisans? Given the highly partisan backgrounds of some staff members, I think it’s fair to assume that they didn’t invest more than a year-and-a-half of their life to issue a report that fully exonerated Trump.
Mueller must have been under considerable internal pressure not to issue such a report. This may have caused him to stop short of issuing such a report.
If so, Mueller not only failed to do his job, he failed to do it for a very bad reason. At the same time, given what I suspect to be the high degree of partisanship within Mueller’s team, perhaps we should consider ourselves lucky that Mueller at least exonerated Trump of collusion — the main issue he was tasked with considering and the main issue in the public’s mind.
