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Mueller Refuted Three Bad Arguments About the Special Counsel Investigation

Trump fans and Trump critics will both find reason to be unhappy.
May 29, 2019
Mueller Refuted Three Bad Arguments About the Special Counsel Investigation
Robert Mueller discusses the special counsel investigation and report on May 29, 2019. (Photo by Chip Somodevilla/Getty Images)

Robert Mueller has broken his long silence. On Wednesday morning, the special counsel announced his resignation in a surprise appearance at the Department of Justice, and took the time to address some of the questions that have sprung up in the aftermath of his report. Mueller did not rule out the possibility of testifying before Congress, but made it clear he had no intention of saying anything beyond what his office had written.

He may not need to. In a few short minutes, Mueller offered three important clarifications of lingering concerns about his report, each of which was pretty much enough to blow one misleading narrative or another out of the water.

  1. Mueller made clear that, contra William Barr’s early assertions, his office relied heavily on Justice Department policy that a sitting president cannot be charged with a crime.

The very first summary we got of the Mueller report was back in March, when attorney general William Barr sent a letter to Congress offering a brief synopsis of the report’s central findings. In that report, Barr made three assertions: First, that Mueller had not uncovered sufficient evidence to charge the Trump campaign with complicity in Russian efforts to meddling in the 2016 election; second, that Mueller had declined to offer a “traditional prosecutorial judgment” about whether the president had criminally obstructed the investigation; third, that he, Barr, had then made that decision for Mueller and concluded that the evidence did not establish that the president had committed obstruction.

In explaining that decision, Barr made this crucial claim: “Our determination was made without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.”

At a press conference on the day of the report’s release, he added the following: “Although the deputy attorney general and I disagreed with some of the special counsel’s legal theories and felt that some of the episodes examined did not amount to obstruction as a matter of law, we did not rely solely on that in making our decision.  Instead, we accepted the special counsel’s legal framework for purposes of our analysis and evaluated the evidence as presented by the special counsel in reaching our conclusion.”

The subsequent release of the report cast Barr’s gloss into serious doubt, doubt that Mueller’s statement confirmed as justified. Simply put, it cannot possibly be true both that Barr “accepted the special counsel’s legal framework for purposes of our analysis” and that his determination not to charge Trump with obstruction was made “without regard to … the constitutional considerations that surround the indictment and prosecution of a sitting president.” In his statement, Mueller took great pains to explain that his office had relied heavily on the constitutional considerations in question.

“Under longstanding department policy, a president cannot be charged with a federal crime while he is in office,” Mueller said. “That is unconstitutional.”

He went on to explain the hypothetical workarounds that his office considered and discarded as equally unconstitutional, including an indictment to be sealed until after the president left office. But ultimately, the conclusion was inescapable: “It would be unfair to potentially accuse somebody of a crime when there can be no court resolution of the actual charge. So that was Justice Department policy. Those were the principles under which we operated. And from them we concluded that we would not reach a determination one way or the other about whether the president committed a crime. That is the office’s final position and we will not comment on any other conclusions or hypotheticals about the president.”

  1. Mueller denied that Barr had used his redaction authority to warp the meaning of the special counsel’s report or otherwise protect the president, as many have publicly speculated.

In the days following the April release of the redacted Mueller report, the attorney general was frequently accused of behaving as a Trump partisan, in part for the reasons listed above. Some Democrats, like House Judiciary Committee Chairman Jerry Nadler, insisted for weeks that Barr could not be trusted with those redactions, and have used every procedural tool to extract the complete text of the report from the Department of Justice, subpoenaing the full report and eventually voting in committee to hold Barr in contempt. A New York Times editorial last month put the case thus:

The Trump administration—based on its pattern of dishonest conduct in office—simply cannot be trusted to be straight with the nation about what parts of the report need to remain concealed from public view… Nor can the public depend on the word of Mr. Trump’s handpicked attorney general, who has a long history of trying to muffle Republican scandals and whose view of executive branch authority is alarmingly broad.

These worries were seemingly amplified when it was later reported that Mueller had been frustrated with Barr’s handling of the report’s rollout.

But while Mueller contradicted some of Barr’s narratives in his Wednesday statement, he also took pains to say those particular concerns had been overblown. “At one point in time I requested that certain portions of the report be released; the attorney general preferred to make the entire report public all at once,” he said. “We appreciate that the attorney general made the report largely public, and I certainly do not question the attorney general’s good faith in that decision.”

  1. Mueller punctured a ubiquitous Trumpworld talking point about his report: That the very idea that Trump could have obstructed justice was laughable, since he had not committed the underlying crime of conspiracy.

This is one we’ve heard constantly from Trump and his allies: That all along the investigation was just a partisan witch hunt, a fishing expedition, so how could you blame the president for taking deliberate steps to bring it to an end? In his own aforementioned press conference, Barr made this argument fairly explicitly:

In assessing the president’s actions discussed in the report, it is important to bear in mind the context… As he said from the beginning, there was in fact no collusion. And as the special counsel’s report acknowledges, there is substantial evidence to show that the president was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks.

But in his remarks Wednesday, Mueller reminded the country that there was underlying criminal activity that he had been appointed to investigate: The Russian government’s deliberate efforts to subvert American democracy by meddling in the election. Such efforts “needed to be investigated and understood,” Mueller said, “and that is among the reasons why the Department of Justice established our office.”

Crucially, Mueller argued that the obstruction investigation was specifically necessary because of how important the investigation into Russian meddling had been. “The matters we investigated were of paramount importance. It was critical for us to obtain full and accurate information from every person we questioned. When a subject of an investigation obstructs that investigation, or lies to investigators, it strikes at the core of the government’s effort to find the truth and hold wrongdoers accountable.”

The work the special counsel was doing, in other words, was important to the health of the nation. The fact that Trump didn’t like it did not outweigh this fact.

Andrew Egger

Andrew Egger was a senior writer at The Bulwark.