Much drama surrounds former Special Counsel Robert Mueller’s upcoming testimony—on July 17, or perhaps on July 24—before two committees of the House of Representatives. It flows in no small part from Mueller’s character, as a man out of time, whose extraordinary commitment to values uncommon in today’s world have made him both an icon and a curiosity. I know of his long-standing commitment to those values not just from reading the papers, but from serving with him decades ago, as new assistant U.S. attorneys in San Francisco in 1977 and as colleagues in leadership roles at Main Justice in 1989 and 1990.
Bob Mueller is a marine, who takes the core values of honor, courage and commitment seriously. Time and again, he has answered the call to step in and do his best in dire circumstances—in Vietnam, where he was decorated for courageous conduct under fire; as a line homicide prosecutor in the nation’s capital, because “there’s just too many young people dying violently in this city”; in 1998, as the United States attorney in a San Francisco office in such difficult straits that President Bill Clinton called him back to fix it; and as the director of the FBI, who just one week into the job, on September 11, 2001, was handed the new task of remaking the bureau for the worldwide War on Terror. In that last role, Mueller stayed two years past the end of his term—the longest tenure for a director since J. Edgar Hoover—when pressed by President Barack Obama. And, of course, in 2017 he answered the call to serve in the predictably thankless job of special counsel.
This extraordinary commitment to public service and seeing hard jobs through to the end is consistent with the Marine Corps motto, Semper fidelis. “Always faithful.” That means placing loyalty to country, its institutions—and, under normal circumstances, the commander in chief—above all else. And it means loyalty to rules and the subtleties of rules. Mueller is a rule follower, a model of rectitude and reserve, as anyone can see from the way he has conducted himself.
For two years, Mueller uttered not a single public word as he pursued his investigation, ignoring ceaseless verbal attacks from the president. His silence was consistent with traditional prosecutorial practice, but highly uncharacteristic of most players in our media culture, including many prosecutors. When he finished, following the playbook laid out in the special-counsel regulations, he turned over his remarkable 448-page report to his nominal supervisor, Attorney General William Barr, on March 22, and sat back silently awaiting next steps.
When Barr wrote a cryptic letter on March 24 purporting to summarize the report’s conclusions, but expressly stating that the mountain of summarized evidence was legally insufficient to show obstruction of justice, Mueller responded three days later with a confidential note to Barr saying that the letter “did not fully capture the context, nature, and substance of the Office’s work and conclusions.” But still, Mueller said nothing publicly for two more months. Only after Barr had further obfuscated matters at an April 18 press conference and in May 1 testimony before Congress did Mueller hold a brief, tight-lipped press conference on May 29 at the Department of Justice.
Mueller recounted with emphasis the parts of the report detailing Russia’s extraordinary interference in our election. He also repeated the report’s reasoning that the departmental policy barring indictment of the president must be honored, and also the report’s extrapolation of that rule to bar any affirmative finding of criminal wrongdoing that the president would have no procedural way to refute. At the same time, paraphrasing the words of the report, he said that if “we had confidence that the president clearly did not commit a crime, we would have said so”—and they did not say so. Mueller closed by saying that he hoped this would be the last time he would be speaking on this matter, noting that his report was his testimony and he should not be expected to answer further questions about it.
The next day, on May 30, Barr offered a gratuitous interview to Jan Crawford of CBS News, mocking Mueller’s determination that no conclusion about Trump’s criminality could be drawn. “The opinion says you cannot indict a president while he is in office, but he could’ve reached a decision as to whether it was criminal activity.” Thus, Barr explained, “when he didn’t make a decision, the Deputy Attorney General Rod Rosenstein and I felt it was necessary for us as the heads of the department to reach that decision.”
By rejecting—even appearing to ridicule—Mueller’s punctilious insistence that fairness foreclosed any finding of likely criminality by the president, because department policy barred an actual indictment, Barr thus opened the way for his own formal finding on that subject. And in reaching a finding of no criminality without ever discussing the evidence, Barr plainly relied on his own twisted vision of an autocratic president constitutionally empowered to shut down any investigation—even an investigation into his own conduct. It was a vision he had spelled out in detail in a 19-page memo attacking “Mueller’s ‘Obstruction’ Theory,” which he submitted to Rod Rosenstein in June 2018, perhaps as an audition for the job of attorney general.
Anyone who has carefully read Volume II of the Mueller report knows that it offers a very readable account of repeated acts by the president carefully tailored to interfere with and disrupt the investigation, and that it offers an enormous amount of evidence to substantiate its narrative. That is why more than 1,000 current and former prosecutors have come together to say that but for the departmental rules categorically foreclosing it, indictment of the president for obstruction would be well justified.
But very few people have actually read the report. And for the others, Barr’s careful campaign of cryptic and misleading public statements has muddled the message very badly. Indeed, it has left most people at best puzzled, and some with the mistaken view that evidence showing serious misconduct probably does not exist.
Thus, if the arduous task Mueller undertook as special counsel included informing the American people and Congress about the facts and law surrounding the president’s conduct in a way they would be likely to understand, he is not yet done. He needs to be more direct about what the investigation found. And there seems little doubt that an unambiguous direct statement by Mueller of his own prosecutorial judgment based on the work of his team and their assessment of the law—as other independent counsels have provided—would carry enormous weight, and do much to set the public record straight. He needs to tell us whether, in his view, the president obstructed justice.
Perhaps his recent decision to testify before two committees on July 17, after saying on May 29 that he hoped that would be the last time he would have to explain his report, shows that Mueller himself has come to this realization. If so, and if he has decided to give us the benefit of his professional judgment, his path to that decision may have been aided by reflections on the meaning of loyalty in the circumstances America finds itself in. Still, the decision to take that step cannot be easy for this Marine. The very idea of investigating criminality by the commander in chief sits uneasily with a soldier’s unconditional acceptance of the president’s power over his own life, including to order actions that will result in his certain death. But that issue has been on the table since the start, and is a bridge Mueller must have crossed many months, or even years, ago.
Given his demonstrated commitment to honoring the chain of command and respecting rules, might Mueller be reluctant to express his own judgment, since Barr has said that the president’s extreme powers under Article II make him virtually incapable of committing obstruction of justice? It seems unlikely. Accepting that view would render Mueller’s entire investigation of Trump’s alleged interference an idle exercise. And, again, it seems to be a bridge Mueller crossed some time back. The Mueller report expressly addresses the attorney general’s constitutional vision and rejects it. Barr’s view lacks legal support, and is inconsistent with the independent role Mueller was commanded to play as special counsel.
Finally, what about Mueller’s stated reason, based on notions of fair play, for declining even to express a judgment about probable criminality by the president? There—and only there—Barr seems to have it right. A speculative opinion of the Office of Legal Counsel foreclosing indictment of the president, based on no explicit constitutional or statutory language, should not be expanded so as to prevent a special counsel from doing his job. Mueller should accept Barr’s interpretation on this issue of departmental guidance, and give us the benefit of his professional judgment on the legal significance of the facts he has found. It is the only way he can finish the job, and the country’s future depends on it.
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