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The Mueller Investigation Was Always an Impeachment Probe

There is only one rational explanation for this performance. Mueller wants Congress and the public to presume that if it were not for the OLC guidance, it is very likely that he would have charged the president with obstruction — maybe not an absolute certainty, but nearly so.

And then, just in case we were too dense to understand the nods and winks, Mueller took pains to emphasize that, in our constitutional system, it is up to Congress, not federal prosecutors, to address alleged misconduct by a sitting president.

Simple as 1 + 1 + 1 = 3. Likely felony obstruction, plus inability of prosecutors to indict, plus duty of Congress to deal with presidential criminality, equals: Impeachment is the only remedy, unless congressional Democrats are saying that Donald Trump is above the law. (Good luck, Speaker Pelosi, trying to pipe down your AOC wing, to say nothing of the 2020 primary contestants, after that one.)

This should not be a surprise. We have been saying since shortly after Mueller was appointed that his investigation was not a collusion probe but an obstruction probe, and that this necessarily made it an impeachment probe.

Competing Views of Obstruction
As noted above, the apparent contradiction between Mueller and Barr is clarified by the timeline.

To grasp this, you must first understand that Mueller and his staff are completely result-oriented. If you’ve decided to act as counsel to a congressional impeachment inquiry rather than as a federal prosecutor, the objective is to get your evidence in front of Congress, with the patina of felony obstruction.

In the Nixon and Clinton situations, the rationale for impeachment was obstruction of justice. Significantly, the issue in impeachment cases is abuse of power, not courtroom guilt. Consequently, unlike a prosecutor, a counsel to a congressional impeachment committee does not need evidence strong enough to support a criminal indictment; just something reasonably close to that, enough to enable a president’s congressional opposition to find unfitness for high office.

Once you understand that, it is easy to see what happened here.

Mueller’s staff, chockablock with progressive activists, has conceptions of executive power and obstruction that are saliently different from Barr’s (and from those of conservative legal analysts who subscribe to Justice Scalia’s views on unitary executive power).

The attorney general believes that (a) obstruction charges may not be based on exercises of a president’s constitutional prerogatives — only on obviously corrupt acts (e.g., evidence destruction, bribing witnesses); (b) all executive power under the Constitution is reposed in the president; and thus, (c) when the chief executive takes actions the Constitution empowers him to take (e.g., firing or threatening to fire subordinates), it is not the place of an inferior executive officer, such as a federal prosecutor, to second-guess them as “corruptly motivated.” Recognizing how traumatic accusing a president of a crime is for the country, moreover, Barr thinks an obstruction offense would have to be crystal-clear and serious — you don’t tear the nation apart over something about which reasonable minds could differ.

By contrast, Mueller’s staff believes that (a) the executive bureaucracy is semi-autonomous in its areas of expertise, and thus Justice Department prosecutors are supreme, even over the president, in matters of law enforcement; (b) Congress had the constitutional power to, in effect, transfer executive authority from the president to prosecutors by enacting obstruction laws that may be enforced against the president; and therefore, (c) even if a presidential action is lawful in itself, a prosecutor may allege obstruction if the prosecutor believes the president’s motive was corrupt. Furthermore, little or no consideration should be given to whether a president’s allegedly obstructive act is especially clear or serious because the president (at least if the president is a Republican) must be treated like anyone else — otherwise, the president is placed above the law. (Democratic presidents, to the contrary, are the law — see, e.g., DACA, Obamacare decrees, IRS harassment of conservative groups, Fast and Furious stonewalling of Congress . . .)

Playing Out the Alternative Scenarios
This drastic divergence on what can constitute an obstruction offense had practical consequences here.

For most of his investigation, Mueller was “supervised” by acting AG Rod Rosenstein, who did not comply with special-counsel regulations in appointing him, and who promised Democrats that he would be effectively independent. As long as the studiously passive Rosenstein was at the helm, the staff-driven Mueller was free to investigate under his loose, envelope-pushing obstruction theory. Once Barr became AG, however, it was clear that Mueller’s theory was not going to fly.

So, let’s play out the alternative scenario.

Let’s say that, having convinced himself he had a strong obstruction case, Mueller decided to recommend that the president be charged. That would have forced a confrontation over the issue that has been sidestepped: What are the correct standards for evaluating an obstruction allegation against a president? There would have been a brawl at Main Justice. The report would have been held up while the matter was debated.

More to the point, Mueller and such top staffers as Andrew Weissmann and Michael Dreeben, who have operated at the top echelon of the Justice Department, would have known that the attorney general would win such a battle ten times out of ten. That goes double for an AG such as Barr, a highly regarded legal thinker who, besides now being AG twice, ran the OLC in the Bush 41 administration. He was not going to be intimidated or bulldozed by Mueller’s staff.

Remember: Mueller’s staff is looking at this as if they were congressional impeachment counsel. Their objective is to get their evidence to Congress bearing something close to the stamp of an indictable felonies.

Consequently, direct confrontation with the AG was the last thing they wanted. It would have guaranteed failure. The Mueller report’s discussion of obstruction standards would not have gotten out the Main Justice door as an authoritative statement of the law. There would have been a revised articulation of obstruction law as it applies to the president. There would have been vigorous debate over the eleven instances of obstruction Mueller wanted to allege. The report would have been scrutinized carefully by Justice Department lawyers, especially where it plays fast and loose with the facts (see, e.g., my Papadopouolos column). It might never have been released. If it had been released, it would have been discredited or dramatically revised.

That would not have helped the impeachment cause.

So . . . Plan B: What if we decline to make any recommendation on obstruction?

Mueller’s staff calculated: If we don’t press the point of indicting the president, the AG and the Justice Department have no reason to dispute our findings, or even take on our analysis of obstruction law. They’ll be so relieved to avoid a fight over obstruction charges, they’ll be willing to let all that slide. And with Congress demanding the report, and the AG having promised maximum transparency in his confirmation hearings, we will achieve our objective: Congress will get our obstruction evidence, with an accompanying legal analysis that tends strongly in favor of finding felony obstruction. That will be the basis for any impeachment proceedings.

This, then, became the plan: Mueller would decide not to decide.

There was just one problem: Mueller would need a reason for not deciding. Barr was sure to ask. Mueller could not truthfully respond, “Well, we see ourselves as congressional impeachment counsel.” Barr has been quite clear (and quite right) that federal prosecutors exist to enforce the law, not to do Congress’s work — Congress has its own bloated staff for that.

Mueller’s staff would need to come up with something that would pass the laugh test. After all, there was no collusion case, so rendering a prosecutorial judgment on the obstruction question was the only thing for which a special counsel had arguably been needed. Now, Mueller was about to tell the AG he would be abdicating on that. He’d be asked to explain himself, and if he didn’t have a compelling answer, he’d need to stall.

It happened on March 5, during Barr’s first meeting with Mueller after being confirmed. Taken aback by Mueller’s announcement that he would not be deciding the obstruction question, Barr pressed him repeatedly: “Is it because of the OLC guidance?” Mueller insisted that it was not. When asked what, then, was the reason, Mueller meandered about how they were still formulating their rationale.

Get it? Result-oriented: Decision first, then we’ll cobble together the reasoning.

Why would Mueller do this? Again, play out the alternative scenario.

If the special counsel had told Barr that the OLC guidance was his rationale for not deciding, Barr would likely have told him, “Don’t worry about the OLC guidance, that’s not your job. The OLC guidance only says we can’t return an indictment now. We still need to know whether there is a prosecutable case. Just make a recommendation on that, one way or the other.”

If that had happened, Mueller would have been cornered. If he recommended in favor of indictment, he would have ended up in the confrontation with Barr over obstruction law that he was trying to avoid. If he recommended against an indictment, he would have undermined the impeachment effort.

So he punted. And it worked.

Mueller told Barr he was still formulating his rationale for not deciding the issue. Maybe the staff really was still trying to come up with a coherent explanation; or maybe in the back (or front) of their minds, they figured “we’re still formulating” was vague enough that they could ultimately rely on the OLC guidance, even if Mueller had said it was not his rationale.

Whatever the calculation was, two and a half weeks later, when Mueller delivered his final report to Barr on March 22, Mueller and his staff expressly invoked the OLC guidance.

Does that mean Mueller was being dishonest on March 5? Does it mean his thinking truly was still evolving?

What difference does it make?

What matters is that Mueller’s shrewd staffers accomplished exactly what they hoped to accomplish: Make sure the report was disclosed to Congress intact, with 200 pages of obstruction evidence, a legal analysis that tends toward a finding of obstruction, and an express assertion by the special counsel that if he had found Trump did not commit a crime, he would have said so.

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And now, for good measure, Mueller took pains on Wednesday to stress that, in our system, it is Congress’s duty to address presidential misconduct.

For partisan lawyers who saw their special-counsel gig as an opportunity to play congressional impeachment counsel, it is Mission Accomplished.

Mueller Is Admirably Apolitical. That’s the Problem.

He is serving a vision of America that no longer exists.

Robert S. Mueller III has spoken, but he had very little to say. As he said at a brief news conference on Wednesday morning, he will not go beyond what his report said. He will not criticize Attorney General Bill Barr, even though he wrote a letter to Mr. Barr in late March complaining that the attorney general’s summary of the Mueller report did not capture its “context, nature, and substance.”

And while he didn’t completely close the door on appearing before Congress, Mr. Mueller made it clear that it wouldn’t exactly be must-see TV, so what would be the point.

What we saw on display in Mr. Mueller’s nine-minute statement was his often discussed sense of rectitude and propriety. These are admirable attributes, normally. But we might well wonder whether those attributes are what is needed in the age of Donald Trump, or whether the preservation of our democratic institutions demands more.

Born in Manhattan to a former Navy officer and the granddaughter of a railroad executive, Mr. Mueller was the product of an era and a social class to whom the kind of flesh-ripping partisanship we have today was absolutely anathema.

He grew up mostly in Princeton, N.J. At a private school he attended in New Hampshire, a lacrosse (yes, lacrosse) teammate was John Kerry. It’s worth mentioning Mr. Kerry, because he was the same sort: well-born and imbued with the identical sense of class duty. Mr. Kerry, as is well known, enlisted in the Navy even before he graduated from Yale in 1966, and insisted he be sent to Vietnam.

Mr. Mueller graduated from Princeton that same year and soon enlisted in the Marines. Like Mr. Kerry, he saw combat in Vietnam. He won a Bronze Star and a Purple Heart. “One of the reasons I went into the Marine Corps was because we lost a very good friend, a Marine in Vietnam, who was a year ahead of me at Princeton,” he said in a 2016 interview. “There were a number of us who felt we should follow his example and at least go into the service. And it flows from there.”

Mr. Kerry is a Democrat, and Mr. Mueller a Republican. But in their social stratum, while Republicans surely outnumbered Democrats, it didn’t matter all that much. You could, in those days, be in either party and still have the same sense of duty and even, unimaginable as it seems today, believe many of the same things. Thus Mr. Mueller could be comfortable spending much of his career in the Department of Justice in one form or another, being named to posts by Democrats and Republicans alike.

And that is the Robert Mueller who did not want to be seen as being part of anything too “political.” As a creature of his generation, his class, the Marines and the Justice Department, being political surely goes against every instinct he has.

But there is another ideal that men like Mr. Mueller and Mr. Kerry were raised to uphold: the willingness to stand up to the dark impulses of the moment. There is a story, first reported by Jane Mayer in The New Yorker, that illustrates the mind-set perfectly. Shortly after the Sept. 11 attacks, in the face of all the hysteria, precious few lawyers were willing to defend suspected terrorists. At a Washington dinner party, guests began to turn on Tom Wilner, a corporate lawyer who was at the time defending a Guantánamo detainee.

After a guest asked Mr. Wilner how he could do such as thing, Mr. Mueller, who was also at the party, stood up. He raised his glass and said: “I toast Tom Wilner. He is doing what an American should.”

Now let us ask: What do we suppose a man who toasted Tom Wilner in such a fashion must think of Donald Trump?

I think we know. And yet, Mr. Mueller will not say so publicly. He just reiterates that he wants the evidence to speak for itself. The evidence, however, was not allowed to speak for itself, as he knows. The attorney general spoke for it. And many Republican members of Congress apparently didn’t even read the evidence. The president of the United States mocks it and lies about it, saying the report found no evidence of obstruction.

And so we are living in a clash of Robert Mueller’s two Americas. In the America in which he grew up, and the America he has served with rectitude and dignity, riding quietly off into the sunset would perhaps have been the right thing to do.

But that America is no longer. Shards of it remain, but it is under constant assault. If Mr. Mueller wishes to serve and preserve that America, he might still ask himself whether this brief statement followed by silence is the best way to do that. And he should determine to do, to quote his old toast, what an American should.

The Brian Lehrer Show – Mueller Aftermath Analysis

(23:51) Barr could have easily released the Mueller Report Executive Summary much sooner.

The fact that it was withheld allowed a false narrative to take hold.

William Barr’s Testimony, and Reasons to Be Snitty

said, ‘Bob, what’s with the letter?’ ” Attorney General William Barrrecounted in his testimony before the Senate Judiciary Committee on Wednesday. “ ‘Why don’t you just pick up the phone and call me if there’s an issue?’ ” Bob—that is, Robert Mueller, the special counsel in charge of the investigation into Russian efforts to interfere in the 2016 election—had sent Barr the letter on March 27th, three days after Barr had released his own letter purporting, in four pages, to convey the principal conclusions of Mueller’s more than four-hundred-page report. Mueller had been fairly clear about what was, as Barr put it, with the letter: Barr’s statement “did not fully capture the context, nature, and substance of this Office’s work and conclusions.” And, in its wake, there was “now public confusion.” Barr told Senator Richard Blumenthal, Democrat of Connecticut, that the letter had prompted him to call Mueller, on speaker phone, while several people, including Deputy Attorney General Rod Rosenstein, were in the room with him. As Blumenthal questioned Barr about his subsequent exchange with Mueller, Barr picked up what appeared to be a copy of Mueller’s letter and gave it a sour scan. “The letter’s a bit snitty,” he said. “I think it was probably written by one of his staff.”

“Snitty” is a word of relatively recent origin; Merriam-Webster traces the appearance of the underlying noun, “snit,” to 1939. It echoes something of the meaning of snipe and snip, and even snitch—of pettiness and petulance. It hardly seems right as a way to describe the concerns that Mueller—a man with a long and distinguished career in law enforcement—had about a possible blow to public confidence in his investigation, or in the Justice Department, or in both. And yet the complaint perfectly expresses the culture of the Trump Administration. Calling people “snitty” is a way of accusing them of being weak, mewling, and rule-bound, with a pathetic belief in fairness. It’s the bully’s retort upon being called out—expressing the same resentment that might, say, lead a President to commit what the Mueller report refers to as potentially “obstructive acts.” “Snitty” is used to conjure up the image of people whom one would rather ignore stamping their feet—which may be why Barr joined it with the supposition that the letter Mueller signed was written “by one of his staff.”

The question of what “staff” might be capable of was, it seems, already on Barr’s mind. After the Senate hearing, it emerged that he had decided not to appear at a parallel hearing in the House, scheduled for Thursday, supposedly because he objected to being questioned by lawyers on the committee staff rather than by the representatives themselves. The committee is responding with a flurry of subpoenas; the issue of the Trump Administration’s evasions of congressional oversight is not a new one, and it won’t go away. But Barr does a particularly bad job of hiding his disdain. At one point, Blumenthal asked him if anyone had taken notes of the “what’s with the letter” call. Barr confirmed that some people had done so. “May we have those notes?” Blumenthal asked.

“No,” Barr replied.

“Why not?” Blumenthal asked.

“Why should you have them?” Barr said.

Who do these senators think they are? Barr’s own recollection of the call was an exercise in blame. According to Barr, Mueller said that he was “concerned about the way the media was playing this” and wanted his executive summaries released in order to “avoid some of the confusion that was emerging.” Barr continued, “I asked him if he felt that my letter was misleading or inaccurate, and he said no, that the press—he felt that the press coverage was.” At this point, Barr has shown himself to be enough of an unreliable narrator that it makes sense to wait and learn if this is also Mueller’s recollection. (Mueller does not specifically mention the press in his letter.) But it is worth asking what Barr is saying here about the press: the coverage, up until then, was based only on his four-page letter. If the coverage was inaccurate or misleading, how might that have happened—was the press making things up? Barr doesn’t appear to mind implying that reporters either are incapable of basic reading comprehension or just act in bad faith. Earlier in the hearing, Senator John Kennedy, Republican of Louisiana, also raised what he called “the news-coverage issue” and asked Barr, “What were you supposed to do about that?” Noting that the report was now out, the senator called the whole matter moot and added, “None of us can control what the news publishes or prints, except the media.” Nor should anyone—but it would be helpful, sometimes, if the press had truthful material to work with. And Congress might do something about that.