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.
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.