In Defense of Robert Mueller’s Unifying Voice for the Justice Department

Bill Barr distorted the narrative before the report was even released. Mueller has taken the high road.
by Kim Wehle
June 3, 2019
Featured Image
Robert Mueller. (Photo by Chip Somodevilla/Getty Images)

Robert Mueller has drawn scoffs from all sides of the political spectrum—including from his short-term boss, Attorney General William Barr—for declining to make a call on whether President Trump actually obstructed justice. As we know, three weeks before the special counsel’s  448-page report on Russian interference in the 2016 election was actually released (and without having reviewed the underlying evidence), Barr made that call for him, in a misleading black-and-white fashion, declaring “no collusion, no obstruction” before people had a chance to read the facts for themselves.

To be sure, Mueller’s legal rationale is a mind-bender—but no more so than Barr’s justification for his “no obstruction” narrative. That’s because legal analysis is nuanced, ambiguous, and difficult. There are few precedents and no easy answers to many of the constitutional issues thrust upon us by the recklessness of the Trump presidency. Legal experts—like Supreme Court justices—often disagree.

But let’s be clear: Nothing in Mueller’s recent public statement departed from the substance of the report itself. It was Barr—not Mueller—who distorted the narrative before the report was made public. In a letter that Barr derided as “snitty,” Mueller said as much to his old friend, who has since stood by his Monday-morning quarterbacking of the Mueller investigation, finally revealing in a CBS News interview that he in fact disagreed with Mueller’s legal analysis. “It did not reflect the views of the department,” he said. Translation: Barr’s infamous four-page summary of the report was no summary after all. It was a redo.

So here we are.

Barr is a Senate-confirmed member of Trump’s Cabinet, and Mueller is—by Department of Justice regulations—the functional equivalent of a line federal prosecutor, with a very particularized mandate. This is a critical distinction. Barr is correct that he has the baton at this point, and acted fully within his authority in handling things as he did.

Despite Mueller’s virtually iconic status in the public eye, his verbal message to the public was this: In declining to draw a conclusion on obstruction, he acted as an employee of DoJ, and DoJ doesn’t make public statements about the potential guilt of individuals that it declines to indict—for whatever reason.

Imagine Barr holding regular press conferences to outline evidence of criminal conduct, naming the would-be wrongdoers, but then adding—“we aren’t going to actually indict, but just so you know, this is what this guy is guilty of.” That would be unthinkable, and rightly so. Former Deputy Attorney General Rod Rosenstein said as much in his memorandum justifying Trump’s fateful firing of former FBI Director Jim Comey: He should not have commented on the propriety of Hillary Clinton’s email-related conduct, “just FYI.” That’s not what DoJ does.

All told, Mueller took the high road here. He refused to move beyond the role of a traditional prosecutor, which is how his job was defined, despite the massive political implications of investigating a president. Because Trump can’t be indicted per DoJ policy, he wasn’t going to step into the shoes of a criminal jury and reach the ultimate conclusion as to Trump’s guilt.  

To be sure, Independent Counsel Kenneth Starr went further and reached conclusions as to President Bill Clinton’s guilt, but he was operating pursuant to a federal statute that Congress passed, which established his structural independence from DoJ and required that he submit a report to Congress itself. The regulations governing Mueller—which were developed in the aftermath of the Starr investigation—required that he prepare a report for Barr; Barr decided what to do with it from there.

Some of us might have handled Mueller’s obstruction of justice decision differently. But in a world of vicious, black-and-white partisanship, I find it hard to ping Mueller for acting with integrity and neutrality. With his public statement, Mueller was the voice of DoJ that Barr was not—a unifier whose approach fostered public buy-in into the process (which is a reason why his congressional testimony could be helpful, even if it just restates what’s in the report, which is all Mueller is willing to do).

In his statement, Mueller did a few other things that Barr, so far, has not done:

He emphasized that Russia attacked our election, that it’s very serious business, and that the problem still needs our attention. Barr has stoked the “hoax” narrative. Mueller dispelled it.

He emphasized that obstruction is a serious crime—and why. This is very important. We have laws for reasons—here, to keep bullies out of criminal investigations so the facts can be known.

He used the word “conspiracy,” making no mention of “collusion.” Collusion is not a legal term and thus irrelevant to the legal analysis contained in the report. Barr flubbed this one horribly.

Mueller didn’t use the word “exonerate” in his public statement, despite making clear that he chooses his words carefully. He instead said that his team could not conclude with confidence that the president did not commit crimes. Translation: There is evidence of crimes by the president of the United States. It’s in Volume 2 of the report, folks.

He alluded to alternative ways to hold this president accountable for the wrongdoing that is spelled out in the report. The way to fire a president is through another process—impeachment by the legislative branch.

He made clear that DoJ’s investigation of a president is itself proper in order to preserve evidence. Importantly, if Trump doesn’t get a second term, the five-year statute of limitations on federal crimes will not have passed, and he could be indicted as a private citizen. (Note that New York State is not bound by the “no-indictment” policy of DoJ. It’s not a law, but an internal policy guideline. So that attorney general’s office remains one to watch.)

He backed up his people—unlike Barr—and undercut the “investigate the investigators” backlash. Most federal prosecutors and FBI agents take their roles seriously and aim to execute their significant authority with integrity. 

Finally, Mueller made clear that people should read the “largely” public report. He wanted it made public, and praised Barr for doing so. In that respect, the notion that we don’t need more investigations of this president has some validity. Most people—including members of Congress—haven’t even read what we know already.

And we know a lot. We should all take it to the ballot booth in 2020.

Kim Wehle

Kim Wehle is a contributor to The Bulwark. She is also a professor at the University of Baltimore School of Law and a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation and author of How to Read the Constitution and Why (Harper Collins).