Laws, statutes and regulations can be messy things. Take the iterations governing the dissemination of Special Counsel investigations for instance. It had been the custom for special counsel reports to be released upon their conclusion, where the interested parties and the public at large learned the outcomes together. But the 1997 release of Ken Starr’s report, replete with sordid and damaging details irrelevant to the overall findings, resulted in a change to the reporting and releasing structure. The current protocol is for the report to be submitted, in confidence, to the Attorney General, or Acting Attorney General in some cases, as this is the official who would have most likely appointed the Special Council, and to whom the Special Council reported throughout the course of the investigation.
It was the US Congress who codified this practice in 1999.
When Special Counsel Robert Mueller submitted his report to the recently confirmed Attorney General William Barr, it lay solely within Mr. Barr’s purview as to who would be privy to the report’s findings, and to what extent the report would be shared publicly, if at all. That was the will of the Congress in 1999.
During his narrow and sometimes contentious confirmation hearings weeks earlier, Mr. Barr expressed two cornerstone commitments with respect to the then winding-down “Mueller Investigation”: (1) the Department of Justice would not interfere or impede with the Special Counsel’s work, and (2) Mr. Barr’s explicit intention would be to release the report, in its least redacted form, to the Congress and to the public at the earliest possible juncture. As this second stipulation exceeds the 1999 Congressional authorization for disseminating the report, he wanted the Judiciary Committee tasked with approving his appointment to understand his intentions. Barr’s acknowledgement that the incoming Attorney General would not withhold the Mueller report from Congress, and would provide it at the earliest opportunity, no doubt sealed his confirmation, but also demonstrated Barr’s belief that disclosure and transparency were essential to the nation’s moving on from the now-infamous Mueller Probe.
In the days leading up to Barr’s receipt of the Mueller Report, Barr explained to Congress that he, in conjunction with Deputy Attorney General Rod Rosenstein who, in his then-capacity of Acting Attorney General, had appointed Mueller and provided DOJ oversight throughout, would make the legally required redactions in select areas of the that report have long been cited as confidential material. As the review period needed to excise sensitive information would delay the report’s arrival to Congress and the public by a few weeks, Barr pledged to provide a written summary of the findings in short order upon receiving the report to tamp down leaks and alleviate suspense. Murmurs of approval were heard all around.
And then Bob Mueller lays not just an egg, but a whole omelet.
Though Mueller confirms quickly there was no conspiracy (“collusion” is not a crime, so “conspiracy” is what was actually investigated) between the Trump campaign and operatives of the Russian government to influence the outcome of the 2016 presidential election, he vacillates on the issue of obstruction of justice charges. He doesn’t ask for more time, he doesn’t ask for more documents, he doesn’t ask for more witnesses to depose, he merely states he cannot reach a conclusion on the matter of obstruction AND (get this) that Attorney General Barr and his deputy, Rod Rosenstein, should draw whatever conclusions they can as to whether or not obstruction should be charged.
Mueller, the esteemed patriot and non-partisan “stand-up guy”, hands Barr the proverbial “hot potato” that can only have one, completely sure-as-shit outcome: a back-alley cockfight straight down party lines among the House, the Senate, and the White House; set against the dawning of the 2020 presidential campaign.
And we thought we’d miss Game of Thrones when it ended.
Not only does Mueller leave this 400-plus page IED with Barr and Rosenstein to cogitate over the weekend, but his submission does not follow the redaction protocols Barr requested, insuring the report’s release would be delayed, and that Barr’s “summary” would receive the greatest possible scrutiny in the intervening weeks.
Barr does provide the summary he promised; and in a very timely fashion. In it, Barr lays out Mueller’s findings that there is no evidence of conspiracy to collude with the Russians, and there is insufficient evidence to conclude that the President, or members of administration, obstructed justice. Barr makes clear that Mueller does not consider this to be an “exoneration” of the President in the matter of obstruction, only that Mueller’s findings lack the evidentiary threshold for making a case. Mueller graciously extends the discretion to Barr and Rosenstein to essentially proceed as they see fit on the matter of obstruction. And in their discretion, bestowed upon them by Mueller, Barr and Rosenstein elected not to proceed with indictments.
The reception Barr’s summary pages receive from Congress, the media, and the public is akin to the series finale of The Soprano’s: what just happened? There’s a different take on all sides as to what Mueller meant in his opaque conclusions, and why and how Barr and Rosenstein arrived at the decision they did in not seeking indictments. Barr cites the very conclusion Mueller submitted: insufficient evidence. Barr further edifies that absent a predicate crime, in this case conspiracy (for which there was exoneration), obstruction charges are superfluous and without merit. And, oh by the way, never sought unless there was a crime committed, and where it is demonstrable that the investigation into which, was obstructed. This is not a convenient, back-door escape hatch dreamed up by the President’s buddy in the Justice Department; this is a sober, deliberate rendition of precedent law.
President Trump, as expected, does a victory dance, spikes the ball, and proclaims complete vindication; then piles on by lauding Mueller’s great work and lambasting his critics and the media as suckers for getting punk’d. Barr is left to stew and shudder over what lies ahead.
So, Mueller waits the requisite two days after Barr’s summary is released, then calls Barr to voice his displeasure over how Mueller’s report was distilled and presented. According to Barr’s Senate testimony on May 1st, Mueller was displeased with the media’s take on his work and felt Barr’s representation was too sterile, lacking the nuance and context that went into the report’s preparation. It is important to note that Mueller declined an offer from Barr to preview Barr’s summary prior to its release, and was apparently influenced by agitated staff members in the Special Counsel’s Office to communicate his displeasure to Barr in its aftermath.
Mueller did not, however, take issue with Barr’s representation of the investigation’s findings, nor the Attorney General’s disposition on how to proceed with respect to obstruction. After all, Mueller is a talented a legal mind as well, and he fully appreciated the conundrum for pressing obstruction charges absent a predicate crime. But rather than close that avenue off as a matter of law, the wily, cagey Mueller decided to leave the door to controversy open, and make Barr the prime suspect in a cover up stoked by Mueller’s ambiguity and perpetuated by zealous House Chairmen and wanna-be candidates on the stump.
But Mueller wasn’t finished contributing. Just to be on the safe side, he follows up his call to Barr with a letter of his own, memorializing their conversation. And on April 9th, during an appearance before the House Appropriations Committee (that was anything but on-topic), Barr was asked very deliberate (scripted?) questions by Representative Charlie Crist of Florida whether Barr had been informed of any misgivings Mueller may have expressed concerning the summary pages Barr had released on March 24th. Barr stated he was unaware of any objections Mueller may have with Barr’s presentation of the findings. When pressed by Crist, Barr strayed into areas of supposition, which appear to be at odds with the letter Mueller sent Barr on March 27th. So be it.
https://www.c-span.org/video/?c4795192/charlie-crist-questions-ag-barr-april-9-2019
One question that will never be asked, let alone learned, is whether Charlie Crist had knowledge of the letter Mueller sent to Barr on March 27th prior to his pointed questioning on the matter April 9th. That detail looms important as Mueller’s letter is eventually leaked to the Washington Post the night before Barr’s testimony of May 1st before the Senate Judiciary Committee, and became a focal point of Democrat questioning throughout the hearing. Charges that Barr lied to Congress followed from Speaker Pelosi (still somehow being cast as the voice of reason for her party), along with calls for his impeachment.
The Mueller Report’s open-ended conclusions, dropped in the lap of the new AG for final deliberations, coupled with Mueller’s plaintive call to Barr over the summary he chose not to review, followed up with his letter to Barr (that may or may not have been the basis for Crist’s questioning) yet made its way to the Washington Post on the eve of Barr’s testimony, reads like a well-laid trap by a frustrated and embittered bureaucrat who failed to get his man.
It was never the job of Robert Mueller to exonerate Trump and his team; the presumption of innocence takes care of that once no charges are brought. The Special Counsel need not prolong an investigation to prove innocence, nor continue to seek out ancillary process crimes once it is evident no underlying crime was committed. As Barr pointed out, it is a “binary process”: charge, or do not charge. Indict or do not indict. Compiling a post mortem on the merits of a 22-month long investigation; what was found, what was learned, who did what, is neither relevant nor required absent an indictment referral. The Special Counsel instead chose to take the route essentially reserved for blue-ribbon commissions on matters such as 9/11 or the Kennedy assassination. Mueller ultimately presented a docudrama for public consumption, much of it unflattering and none of it needed, to support his conclusion not to charge.
Having recused the DOJ authority as arbiter of criminal matters, Mueller has yielded to Congress the power to now decide whether events and activities he investigated and determined to be non-criminal, warrant consideration as high crimes and misdemeanors in the polarized realm of partisan politics and the media-fueled court of public opinion.
Way to go, Bob. Nice job.