I got this email from TPM Reader TH, basically asking why we’re cutting Bob Mueller such slack if we’re criticizing Bill Barr for covering up for the President. Specifically, if he was charged with answering whether or not Trump obstructed justice why did he punt? Why did he shirk that responsibility? Let me share TH‘s take and then I’ll respond.
I appreciate the really great work y’all are doing on the Mueller investigation. Totally agree with everything you’ve said about Barr’s specious response. But I don’t quite understand why you and others aren’t harder on Mueller, too. We’ve credited him with far more moral rectitude than he has actually shown. (He looks the part, being a tall male and all, and in American life that goes a long way.) He was explicitly tasked with deciding the question of obstruction. As Lawrence Tribe and many others have pointed out, it’s inexplicable that he deferred the question to “the politicals,” especially in light of Barr’s well-known opposition to any obstruction charge. Imagine a judge in a routine criminal or civil matter saying, “fuck if I know!”
To my mind, Mueller punting is the equivalent to Colin Powell on WMD before the UN: a clear, character-defining instance of moral cowardice. Years ago, I happened to meet a member of the Bush administration — a guy whose name you know but not one of the top players — and asked him if anyone could have stopped the rush to war with Iraq. The guy looked at me like I was mayor of Stupidtown for even asking the question. “Well, Powell, obviously,” he said. Yet the public largely gave Powell a pass, or anyway, it never delivered the damning verdict on him that he deserved. Collectively, we needed the myth of his rectitude. I think that’s what’s going on here.
Mueller might well have decided that Trump’s actions didn’t rise to the prosecutable level of obstruction. The point is, it was his job to decide one way or another. And he simply didn’t. He wussed out. He’s Gary Cooper in HIgh Noon, minus the last act.
Good question. One of the most interesting things about this long drama is the way Bob Mueller, unsurprisingly but still humorously, has been inducted as an honorary member of the “resistance” because of his role as Special Counsel. In some cases, this is just people joking around with memes and taglines. But clearly some people have this idea that Mueller was in this to take Trump down in some way. It’s important to remember who Bob Mueller is. On that front, I really recommend listening to the current episode of our podcast where we talk about the last couple weeks with Mueller’s biographer Garrett Graff.
In any case, I think Mueller was a good choice for this job because I think he would be a dogged investigator. I think he’d want to get to the bottom of what happened with Russia and on the obstruction front. My understanding of him is basically someone who’s small c-conservative, a Republican but generally apolitical. Before the last two years of character attacks, he’s someone who had great credibility across the partisan spectrum. So he’s a good person to render a judgement and verdict, someone a broad spectrum of the population should be able to have trust in. More than anything, based on his background and stage of life, I don’t think he’s someone who really cares what Trump or Sean Hannity or anyone else says or feels the need to be thinking about his next gig.
One of the things people often don’t think enough about is this. Ken Starr, in addition to being highly political and deeply immersed in partisan Republican politics, had zero experience as an investigator or prosecutor. He was a terrible choice for the job. As a career prosecutor and longtime FBI Director, Mueller not only knows how to run criminal investigations but has deep knowledge of the counter-intelligence world that is a critical part of this particular probe. Again, that makes him a very good choice.
Having said all this we should never lose sight of the fact that Mueller appears to be a pretty traditional guy. He made his career in law enforcement. He’s a Republican, though I think generally apolitical and not ideological in the sense of the contemporary GOP. I have little doubt he’d find much of the politics and culture of the Democratic “resistance” alien and off-putting.
Another thing to keep in mind is that Mueller is clearly a creature of the Department of Justice and its culture. It’s not dispositive as to the constitution but the DOJ has long had a policy that a sitting President should not be indicted. I’ve never had any question that Mueller would follow that policy. More specifically and relevant here, Mueller was working for Rod Rosenstein and now Bill Barr.
I have high confidence that he would not accept interference into his investigation which he believed was corrupt or illegal. But the person he reports to – whether it’s Rosenstein or Barr – has a great deal of discretionary authority over the investigation. I think that as long as those decisions seemed reasonable, Mueller would abide by them. Again, a company man, chain of command, etc.
So where does that all get us?
In the current moment I think it suggests the following.
First of all, on punting, I disagree with TH. We don’t know what Mueller actually did. We know how Barr characterized it. I suspect the reality is significantly different. Here’s my hypothesis.
The question of how and whether a President can obstruct justice is legitimately complicated. No one else has the clear constitutional and statutory authority to fire someone who is investigating them. Same thing with issuing pardons. The President is not above the law. But he or she is also sui generis in their relationship to the law.
There is the additional question of whether a President can or should be indicted during their tenure in office. Given all these questions, I suspect Mueller and his team decided that the question was essentially extra-prosecutorial in nature. Which is to say, this: Mueller was a good choice for Special Counsel because he is an experienced investigator and prosecutor, has experience in counter-intelligence, lacks obvious bias, has broad credibility and has a reputation for honesty. But none of those attributes give him or his team special insight or qualification to answer questions about the scope of legitimate presidential action. These are questions Bob Mueller isn’t really better positioned to answer than you or I am as citizens.
The question was more properly left to the constitutional authorities and most likely to Congress and the public. So lay out the evidence and present it for judgment.
Not only does this not strike me as shirking his duty, I actually think this is the correct call.
Now, maybe it’s different from that. Maybe that part of the Report ends with him saying, you know, I just couldn’t decide. It’s too complicated. I need someone else to decide.
That would be weak. But I doubt that’s what happened.
Another possibility is that his superiors, Barr and Rosenstein, gave him interpretations of law which made it impossible not to exonerate him. Again, we don’t know. I don’t think we should take anything Barr said at face value. And even the portions of the Report he quoted were so fragmentary – literally not even complete sentences – that I don’t think we should read more into them than their narrow, literal meaning. Put simply, we don’t know what Mueller actually did yet.
Now I’ve heard a different criticism that I’m much less clear about. That is, were Mueller and his team really so naive as to think they’d hand over to Barr their 400+ page report and he’d be a good faith decision maker in what to do with it? That’s a really good question.
We’re told that Barr and Mueller are friends. That could play into this. But these reports about personal friendships are always hard to know what to make of.
More probative to me is what I noted above about what we know about Mueller’s character. He’s a company man. A DOJ man. Like it or not, Bill Barr is the constitutional head of the Department of Justice and Mueller works for him. It doesn’t mesh with the person who has been described to me that Mueller would see it as his responsibility or right to try to subvert or constrain Barr’s actions based on assumptions or suspicions about what he might do.
There’s nothing I’ve ever heard about this guy that suggests he would go rogue in a big or public way unless it was to resist some specifically corrupt or illegal action.
When we spoke to Graff about this yesterday on the podcast, he argued that Mueller probably assumes the Report will come out and he’s just not someone who is going to be terribly worried or focused on whether Trump or Barr wins a few news cycles by tweeting “total exoneration.”
I don’t really know the answer to this question. But again, I don’t think we know enough yet about what really happened or is happening to render a judgment.
The real question to me is what is happening with the Special Counsel’s Office staff now. Is this just a few people venting their frustration? Is Mueller himself involved in any way? I don’t mean directly. I doubt that very much. But has he somehow signaled, even if indirectly, that talking about this is acceptable? Is this pushback coordinated and if so how much? On this stuff, I truly have no idea and I’d love to know.
My judgment for the moment is this. We know very, very little about the Report or what it says, other than that the investigators found insufficient evidence to indict any Americans for conspiracy. Knowing close to nothing, we’re not really in a position to make many judgments. We also don’t know what is going on in the background right now. For the reasons I’ve noted I have high confidence that Mueller oversaw an aggressive investigation that was neither covering for Trump or out to get him. Because of that I’m very eager to see the Report which, let’s remember, none of us have seen.