Robert Mueller’s no-frills Congressional testimony on July 24 left me struggling with the same two questions that have haunted me ever since he issued his report:
Why did he abstain from indicting Trump for obstruction, offering no judgment at all?
And why did he set such an impossibly high bar for himself in terms of proving collusion/conspiracy? To make the case, he insists on finding an actual agreement between the two sides. That’s about as likely as persuading Putin to turn state’s evidence against his new best pal in the White House.
None of this squares with Mueller’s proven affinity for by-the-books, down-the-middle jurisprudence. Does he have some hidden agenda?
For most conservative pundits that’s not so much a question as an invitation to character assassination. But Andrew C. McCarthy, a contributing editor for The National Review may be an exception despite himself.
Shortly after Mueller’s testimony, he published two articles in the magazine that reek of animus towards the special counsel but yield insights worthy of MoveOn.org. One is titled: “The Mueller Report’s Fundamental Dodge;” the other: “How Mueller’s Lawyers Spun the OLC Guidance on Indicting a Sitting President.”
In both instances McCarthy’s stated purpose is to elucidate how the Justice Department’s policy against indicting a sitting President – a policy dreamed up by its Office of Legal Counsel, OLC — “factored” into the Mueller decision not to offer any judgment on the obstruction issue. His true purpose is to eviscerate the special counsel for pulling a fast one in order to get his findings to the impeachment lobby in Congress, and to the public.
But McCarthy’s scalpel cuts two ways. In the course of attacking Mueller and his staff, he inadvertently reveals how brilliantly they outflanked Trump’s yes-men at the Justice Department, including Attorney General William Barr. If these self-styled institutionalists had had their way, they would have used DOJ protocols and the OLC guidance to bury the report.
McCarthy concedes as much.
On top of this, he does us another improbable favor. After absorbing his logic, you begin to glimpse a new, improved explanation for why the Mueller team gave Trump a pass on collusion.
Yes, that’s what I said, A new explanation.
Setting all this up requires spending a few moments with McCarthy’s arguments. So, bear with me.
Mueller’s Non-decision on Obstruction
If you believe his articles, McCarthy abhors the notion of Mueller’s deliberations becoming public property. “Justice Department protocols,” he reminds us, “prohibit prosecutors from prejudicing suspects by publicizing the evidence against them unless and until they are formally charged.”
If Mueller and his team had played by the rules, he argues, they would have rendered an up or down verdict on each alleged crime, turned their report and charging recommendations over to Attorney General Barr (and him alone) and let him carry the ball from there. The whole process, he says, would have been kept “confidential — like a normal consultation between a prosecutor and a supervisor about whether an indictment should be brought.”
Only the bare-bones recommendations themselves would have been publicized. All the rest would have been hostage to discreet debate within the Justice Department, which McCarthy feels would have been right and proper.
On the issue of obstruction, he predicts Trump would have emerged unscathed if Mueller had played it straight. In the event he’d recommended indictment, Barr would have pushed back, and prevailed, McCarthy insists. If Mueller had used the OLC non-indict policy as his sole argument for not charging the President, all hell would have broken loose at the Justice Department, with every authorized player weighing in on the issue. In that instance, says McCarthy, Mueller’s report would have been “kept under wraps interminably.” Congressional overseers would have been left blinded. McCarthy himself would have toasted Lady Justice.
What incenses him is that Mueller and his team gamed the system by refusing to make any recommendation at all about charging Trump with obstruction. They denied Barr his best pretext for keeping their report bottled up.
Even more vexing (to McCarthy), they used the OLC policy itself as an argument for withholding judgment. By Mueller’s own account (Volume 2, page 2 of his report), he and his staff decided that since the President couldn’t be indicted while in office it would be unfair to him even to recommend a charge he can’t answer through a “speedy and public trial.”
McCarthy mocks this alleged concern for “poor President Trump” and his due process protections. He decries Mueller’s logic as “ridiculous,” “untenable,” “a head spinner,” just one more way of denying the Justice Department its right to keep his findings out of sight and beyond the reach of Congressional meddlers.
“With a wink to Congressional democrats,” he concludes acidly, “Mueller’s activist Democratic staff essentially said: We’re not charging him, but that doesn’t mean there is inefficient evidence to charge… which means there might very well be impeachable offenses.”
Mueller’s Coup
After slogging through McCarthy’s overwritten hissy fit, I felt a touch of sympathy for him and wondered at his risk for high blood pressure or a ruptured spleen.
At the same time, I came away in awe of Mueller’s sly genius. Although Barr ultimately tried to checkmate him, as McCarthy notes approvingly, by clearing Trump of obstruction on his own authority, there can be no doubt that Mueller’s larger objective was achieved.
Witness the fact that his findings are on their way to becoming public, the remaining redactions under review. As long as this process continues, there’s a chance Trump could be impeached — or indicted after leaving office.
No wonder Mueller was so quick to correct himself after accidentally suggesting in his testimony that he would have nailed Trump for obstruction but for the OLC regulations. “That is not the correct way to say it,” he interjected. “As we say in the report and as I said at the opening, we did not reach a determination as to whether the president committed a crime.”
New Insight into Mueller’s “Collusion” Verdict
As we all know from Mueller’s findings, his investigators were unable to prove beyond a reasonable doubt that Trump and his campaign aides had “coordinated” with the Russians in their election interference. This is not a backhanded way of saying they reached no decision. It is a standard-issue prosecutorial judgment essentially clearing Trump and his campaign staff of any wrongdoing on this score.
McCarthy believes there’s something screwy about this. To cite his own words: “If Mueller really believed the OLC guidance prevented him from even considering whether Trump could be charged, why did he render a decision on the collusion aspect of the probe? He can’t have it both ways.”
I agree. If Mueller were being consistent, he would have withheld judgment on collusion, as he did on obstruction.
Based on the evidence available to him, or the lack of it, he would have been fully justified in doing so.
Every key witness in his “collusion” probe – from George Papadopoulos to Paul Manafort to Michael Flynn — is a proven liar or an admitted one. Even those who finally copped to the truth are too thoroughly compromised by previous falsehoods to impress any trial jury. As Mueller freely acknowledges, documents and written communications that might have filled in the blanks are missing or protected by unbreakable passwords.
Trump himself refused to be interrogated under oath and would only submit to written interrogatories and only on the matter of collusion. His heavily lawyered written responses were “incomplete or imprecise” (Mueller’s words).
When asked by an inquisitive legislator if these responses showed Trump “wasn’t always being truthful,” Mueller replied, “I would say generally.”
Because of all the fact-finding problems he faced, Mueller hedges his bets when discussing collusion-related issues in his report. He admits he “cannot rule out the possibility that the unavailable information would shed additional light on (or cast in a new light) the events described in the report.” He also admits that anomalies abound. “A statement that the investigation did not establish particular facts,” he affirms with admirable candor, “does not mean there was no evidence of those facts.”
But if that’s so, why did he even bother with trying to fit these jagged pieces into a tidy legal mosaic. As he proved with the obstruction question, he is adept at opting out of charging decisions.
Mueller’s original marching orders gave him certain latitude on the collusion issue, enough in fact that he could have stacked the deck if he’d wanted to. Despite Trump’s obsession with “No Collusion” as a political battle cry, nothing in the U.S. Code criminalizes “collusion” per se.
As a result, Mueller’s mission was subject to interpretation. In his appointment letter, he was directed to examine whether members of the Trump campaign had “coordinated” with the Russians in their election interference.
Coordination is listed as a potential offense in campaign finance law. Prosecutors are allowed under the controlling precedents to prove illegal coordination simply by pointing to an exchange of subliminal signals between two parties. A series of winks and nods will do it. That should have eased Mueller’s evidentiary burden.
But surprisingly he did not avail himself of this option. In the section of his report where he describes his statutory choices in tackling the collusion issue, he glosses over campaign finance law. He argues that “‘coordination’ does not have a settled definition” in Federal criminal statutes and acknowledges having framed one of his own. Taking his cues from conspiracy law, he decided “coordination” can be established in only one way – by proving the existence of an agreement, tacit or express, between two colluders.
He couldn’t have set a higher standard for himself. Even his attempt to explain it in his report illustrates its impracticality. By his reckoning, he says, criminal coordination “requires more than the two parties taking actions that were informed by or responsive to the other’s actions or interests.”
Re-read that sentence. It’s gibberish. It offers no decipherable roadmap for a prosecutor, no practical guidance for a judge, much less a jury.
It’s as if Mueller meant to prejudice his own hand from the start.
Why?
Perhaps he was trying to be fair to Trump. But given McCarthy’s thesis that Mueller had one overriding goal – to ensure his report escaped the Justice Department and reached Congress – it occurs to me his “collusion” finding, his decision to cede it to Trump, had a calculated purpose. What better way to coax Barr into releasing the report, or large parts of it, than by dusting it with sugar?
By declaring Trump & Company innocent of any Russia-related conspiracy, Mueller gave the Attorney General an irresistible incentive to err on the side of transparency, despite his every instinct to the contrary. Equally important, he bought time for Congress and subsequent prosecutors to dig for evidence that had eluded his own investigators.
Much as Mueller might resist the notion, I suspect Niccolò Machiavelli would be proud of him.