Special Counsel Robert Mueller read out a statement on Wednesday summarizing several key points from his report and announcing that he is leaving the Justice Department. He took no questions and provided no new information, declaring that his report speaks for itself. He said that he would not testify before Congress beyond the four corners of what was publicly released in his report. Mr. Mueller confirmed that, at one point in time, he had “requested that certain portions of the report be released,” while Attorney General William Barr preferred to release virtually the entire report all at once. However, he added, “We appreciate that the Attorney General made the report largely public. I do not question the Attorney General’s good faith in that decision.” So much for Democrat charges of bad faith, lies and cover up hurled at Attorney General Barr.
In the first part of his public statement, Mr. Mueller focused attention on Russian interference itself in the 2016 presidential election. “As alleged by the grand jury in an indictment, Russian intelligence officers who were part of the Russian military launched a concerted attack on our political system,” he said. On the other hand, Mr. Mueller noted later in his statement that his office reached the conclusion that there was “insufficient evidence to charge a broader conspiracy” between the Trump campaign and the Russians to interfere in the election. The report itself had been even clearer in declaring that the special counsel’s investigation found “the evidence was not sufficient to charge that any member of the Trump Campaign conspired with representatives of the Russian government to interfere in the 2016 election.” Of course, that would necessarily include the presidential candidate himself.
Mr. Mueller then tried to clarify the murkier portion of his report dealing with obstruction of justice. In doing so, he tried to have it both ways.
Mr. Mueller noted that he was “authorized to investigate actions that could obstruct the investigation.” He claimed that he was permitted to investigate the sitting president’s conduct because any evidence gathered “while memories are fresh and documents are available…could be used if there were co-conspirators who could now be charged.” However, Mr. Mueller explained why in his view he could not take any prosecutorial action against President Trump while Mr. Trump remained in office. Mr. Mueller pointed to a long-standing Justice Department policy that a sitting president cannot be indicted while in office as justification for failing make a prosecutorial decision on whether to formally charge President Trump with obstruction of justice. “Charging the president with a crime is not an option we could consider,” Mr. Mueller said.
Talk about not providing adequate context, as Mr. Mueller had complained Attorney General Barr failed to do in summarizing the conclusions of the special counsel report. First of all, Mr. Mueller had the option of asking a grand jury to name President Trump as an unindicted co-conspirator. This is what happened to Richard Nixon, a decision which was not overruled by the federal district court. The problem for Mr. Mueller is that his office evidently found no evidence of any “co-conspirators who could now be charged” as part of a conspiracy to obstruct justice spurred on by President Trump.
Even if President Trump were suspected of acting entirely on his own to obstruct or attempt to obstruct the FBI and Mueller investigations, the Justice Department policy against indicting a sitting president was not the special counsel office’s only concern. Mr. Mueller failed to mention in his statement the concern expressed in his own report that the evidence his office “obtained about the President's actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment.”
Worst case scenarios fashioned from what the evidence “could” have shown hardly rise to the level of indictable offenses. In any case, the evidence cited in various portions of the Mueller report linked the president’s actions with his perfectly legitimate worry that the continuing investigation impaired his ability to govern effectively, conduct foreign policy and keep the commitments he had made to the American people. It would have been extremely difficult for a prosecutor to prove the corrupt intent element of an obstruction of justice charge against the president beyond a reasonable doubt when his own evidence could be used to prove otherwise.
Nevertheless, despite saying in his statement that it “would be unfair to potentially accuse somebody of a crime when there can be no court resolution of an actual charge,” Mr. Mueller used his statement to leave the president under a public cloud of suspicion. He stated that if after the special counsel office’s investigation “we had confidence that the President clearly did not commit a crime, we would have said that.” Nobody asked Mr. Mueller to prove a negative. Mr. Mueller’s job was to reach a definitive conclusion regarding the existence or lack of substantial proof of a prosecutable crime of obstruction of justice. He failed to carry out his prosecutorial responsibility.
Attorney General Barr picked up the mantle. He decided that the evidence gathered by the Special Counsel’s office did not support each and every element of an obstruction of justice offense by the president that could be proven beyond a reasonable doubt.
Mr. Mueller’s excuse for wanting to have it both ways is that “the Constitution requires a process other than the criminal justice system to formally accuse a sitting President of wrongdoing.” In his mind, he had simply compiled evidence that could be used in such an alternative process, which obviously would be an impeachment proceeding. Not his problem to go any further, Mr. Mueller decided. Rather than leave it at that, however, Mr. Mueller did go further. He threw gas on the impeachment bonfire by emphasizing in his statement that his office had not cleared the president of the crime of obstruction of justice.
Democrats are dancing for joy, forgetting that there were no charges of wrongdoing against the president either. “He did not exonerate the president of the United States of obstruction of justice, obstruction of justice is a serious crime that strikes at the core of our justice system, and the Constitution points to Congress to take action to hold the president accountable,” Democrat Rep. Jerrold Nadler, chairman of the House Judiciary Committee, said about Mr. Mueller. “Given that special counsel Mueller was unable to pursue criminal charges against the president, it falls to Congress to respond to the crimes, lies and other wrongdoing of President Trump — and we will do so.”
In short, Mr. Mueller all but invited the House to start an impeachment proceeding. Yet he failed to follow clear precedent set by a previous independent counsel on how to responsibly lay out compelling evidence for Congress to consider in support of possible impeachment of a president for “high crimes and misdemeanors.”
Independent Counsel Ken Starr presented Congress with his definitive conclusion that there was “substantial and credible information that President Clinton committed acts that may constitute grounds for an impeachment,” including “substantial and credible information that President Clinton obstructed justice.” The House acted upon Mr. Starr’s findings, although the Senate failed to convict. Mr. Mueller could have set forth similarly definitive conclusions for Congress to follow up on, but he chose not to. Instead, he muddied the waters further with flimsy evidence.