Former federal prosecutor: Here's the giant hole in the Mueller report — and why it means the special counsel must testify
In his May 29 televised statement, special counsel Robert Mueller told us that everything he had to say was contained in his written report, and that it contained everything that Congress and the public needed to know about his investigation. This, however, is incorrect in several material respects, and the House Judiciary and Intelligence committees should insist that he appear before them to answer extremely urgent questions.
This article originally appeared in Salon.
The Mueller report is completely silent on the results of the FBI’s counterintelligence investigation that was opened up shortly after Trump fired FBI Director James Comey on May 9, 2017. The next day, Trump then confided to Russia’s foreign minister and ambassador to the U.S. the following day in the Oval Office that — referring to the FBI’s Russia investigation — the firing of “nut job” Comey had relieved “great pressure” on him. Trump then followed this confirmation by admitting to NBC’s Lester Holt in a televised interview at the White House that he had decided to fire Comey because of the “Russia thing.”
Alarmed FBI and Justice Department officials promptly opened up a counterintelligence investigation into whether the current occupant of the White House was so compromised by Russia that, for all intents and purposes, he was an active agent of a hostile foreign power. After all, Trump had sounded like a Russia apologist for many months. There was no reasonable basis for his apparent love of all things Russian and his inability to criticize the country or President Vladimir Putin, its autocratic leader, in any way. Firing the FBI director, in an evident attempt to derail the bureau’s investigation into the massive and coordinated attack by Russia on the U.S. electoral system, left no question that there was something seriously wrong in the White House and that there was an urgent need to mount an investigation as quickly as possible. For the first time in American history, there was a rational and actionable basis for believing that a sitting president of the United States was betraying his own country.
So, Mr. Mueller, what happened to this counterintelligence investigation? Attorney General William Barr and his deputy Trump sycophants now occupying key positions in the once-independent Justice Department won’t tell us what happened. Now that you are a private citizen, as a career public servant of the highest integrity, don’t you think you at least have an obligation to tell the House and Senate Intelligence committees whether there is a basis for believing that treason is afoot in the White House? And if so, what is being done about it?
The Mueller report also does not tell us anything about the treasure trove of financial data on Trump that the special counsel’s office inevitably collected in its wide investigative net during the two years of its investigation. Mueller was apparently reticent to cross the line in the sand that Trump drew, warning Mueller away from pursuing subpoenas of Deutsche Bank and other financial institutions who are sitting on ticking financial time bombs that could potentially reveal the extent of Trump’s ties with Russian oligarchs and Russian interests.
It is a virtual certainty, however, that vast amounts of raw financial data relating to Trump and the Trump Organization have been amassed during the course of the investigation. Yet Mueller seems content with shutting up shop without any in-depth analysis of this data and its significance in understanding Trump’s love of all things Russian. Mueller is inexplicably refusing to go beyond the report and give Congress and the American people any information that he has gathered.
And that is not the worst of it. The obstruction of justice aspect of the investigation gathered virtually conclusive proof that Trump committed at least 10 major obstructions of justice. It only stopped short of stating the inescapable conclusion that Trump violated the federal criminal code because Mueller felt constrained by Department of Justice policy, which reached the dubious conclusion that the vice president and every other member of the executive branch could be indicted while in office, but that a sitting President was somehow above the law and could not be indicted. Mueller mistakenly stated that the indictment of a sitting president was unconstitutional, even though the Constitution is silent on that issue. The Founding Fathers have a well-deserved reputation for explicitly stating in the Constitution what they thought should be included in it, and omitting any language that they thought should not be included.
The Constitution doesn’t say that a sitting president cannot be indicted. Period. Department of Justice (actually the Office of Legal Counsel) opinions and “guidance” are simply that: a statement of current (and likely obsolete) policy. The OLC originally crafted this opinion as a compromise measure during the Watergate investigation, when it was decided that Justice Department policy should favor the criminal prosecution of Vice President Spiro Agnew on corruption charges, while exempting Richard Nixon himself from prosecution while he was still in office, on the dubious theory that any president is so burdened with weighty matters of state that he or she should not be distracted by the necessity of defending against criminal charges. This reasoning certainly does not apply to the current sitting president, who spend precious little time on matters of state and a great deal of time on golf and Twitter storms.
The simple fact is that Department of Justice policies can be changed when they prove to be obsolete, as in this case, or when a sitting president is flagrantly violating the criminal laws or so compromised that he is acting in a manner that betrays our country and its vital interests. This is an issue that should be fully aired in Congress as part of its oversight responsibility.
It also must be emphasized that Mueller went far beyond the current Department of Justice guidelines. Not only did he conclude that he could not indict Trump; he also created a highly dubious "Mueller Doctrine," which apparently holds that a special prosecutor cannot even reach the conclusion that a sitting president violated the criminal laws by obstructing justice, on the misguided theory that the president cannot properly defend himself and seek vindication in a court of law. This may appear superficially to be fair, but it is not grounded in reality.
If nothing else, we know painfully well that Trump's Twitter feed is obsessively reported on by the press as news. Trump has other means to gain virtually unlimited access to the media to defend himself from any attack by anyone about anything. He certainly has the wherewithal to mount a vigorous defense and counter-offensive against any prosecutor who had the temerity to conclude that he violated the law, regardless of whether he can or cannot be prosecuted for those crimes.
Why do we need 1,000 former federal prosecutors to circulate a letter saying the obvious, namely that the Mueller report clearly shows that Trump criminally obstructed justice on at least 10 occasions, while the special counsel himself coyly declines to say that, yes, this is his inescapable conclusion, and that Congress has the power to find a president guilty of wrongdoing? What Mueller did say was a textbook example of circumlocution: “If we had had confidence the president clearly did not commit a crime, we would have said so. We did not.” A simple declarative statement would have helped clear the air and avoid any ambiguity: “We have confidence that the president clearly obstructed justice on multiple occasions, but we don’t have the power to indict him for it as long as he is in office.”
Although I do not agree with Attorney General Barr on much, I do agree with him that Mueller had an obligation to exercise his prosecutorial expertise to tell us whether, in his professional judgment, Trump obstructed justice and that, since the Department of Justice is presently declining to indict a sitting president, he was referring the matter to Congress for impeachment proceeding. Mueller couldn’t even bring himself to utter the “I” word in his report, only referring in his quintessentially elliptical fashion to Congress’ ability to deal with presidential wrongdoing.
As a result of his inconclusive conclusions, Mueller left the door wide open to Barr to concoct the outlandish fiction, after a 48-hour review, that the president had not obstructed justice, despite the overwhelming evidence collected by Mueller to the contrary. Barr also grossly misrepresented Mueller’s finding in his four-page letter released well in advance of the release of the redacted Mueller report itself, and Mueller is reported to have complained to Barr about this. Mueller should rightfully be incensed about Barr’s attempts to spin the report as something that it is not, yet Mueller is reluctant to tell the public the plain truth, which is that Barr and the White House are engaged in a massive cover-up and continuing conspiracy to obstruct justice, with the goal of preventing the true details of Mueller’s findings from being fully understood by Congress and the American public.
Yes, Mr. Mueller, this is your legacy. You owe it to your country to set the record straight and to tell us the full truth and nothing but the truth. Our democracy is at stake — do your duty.
