Does Mueller share blame?

The dust has only just begun to settle. When it finally does, the president will argue — as he has daily — that he has been fully, completely exonerated by special counsel Robert Mueller’s report on the Russia investigation. He is enormously helped in making that claim by a disappointingly pliable attorney general who appears totally willing to carry the president’s water. President Trump couldn’t pull off his “exoneration” screed, quickly adopted by Fox News and publications such as the New York Post, without Attorney General William Barr as his committed proxy. 

Still, while Barr has clear and principal responsibility for enabling Trump to parade himself as a total winner in the special counsel sweepstakes, Barr couldn’t have pulled that off for the president without Mueller’s oh-so-nuanced conclusions that simply refused to tell it like it is — i.e., that the president did indeed engage in obstruction of justice. Because, if one actually reads the report, that’s exactly what it says, but one can only discern that by reading between the lines.  

{mosads}And while Mueller undoubtedly was motivated by an institutionalist’s insistence on consummate “fairness” to his un-indictable target, he willingly gave Barr, who is Mueller’s Justice Department superior, the ability to outright deny that the report provided the shovel that could have been used to help dig a felon’s grave.

What should or could Mueller have done? Remember, Mueller concluded — and we don’t disagree — that Justice Department guidelines preclude the prosecution of a sitting president (even though that policy is merely a guideline that would not have given Trump a right to a dismissal in court). And undoubtedly, Mueller knew he wouldn’t pull the trigger to indict at least two years ago, when he was appointed.

So, instead of deciding to seal an indictment or hold off indicting until Trump was out of office — neither an appealing option — Mueller concluded, and essentially declared, in his report: “I can’t indict him, so it would be unfair to him (as it would be to any target) for me to publicly announce that his (obstruction) conduct is criminally indictable.” Mueller basically said that he knew he shouldn’t indict and therefore it wouldn’t be right to publicly accuse the president without the grand jury itself saying so. Thus, the only thing left, he decided, was to simply lay out facts in a “Just the facts, ma’am” way. No editorializing, no characterization whatsoever.   

But at what price to Mueller’s status, as the nonpartisan prosecutor appointed to make clear that politics would not be at play in investigating the president, did he decline to articulate what he actually concluded? By doing what he did, Mueller allowed a clearly partisan attorney general to do what Mueller certainly didn’t agree with — announce that the president did not commit obstruction of justice.    

{mossecondads}It’s hard to believe that Mueller was actually blindsided by what Barr did — that Barr would arrogate to himself to officially say that an obstruction case didn’t lie against the president. After all, Barr had given the administration an unsolicited memo last year saying that a special counsel could not legally indict a sitting president for obstruction.

So why didn’t Mueller head that off at the pass? Why didn’t Mueller unequivocally say in his report that the president’s unambiguous conduct, detailed in the report, was condemnable? Or that his actions were clearly indictable if Trump were not president? And, more to the point, why didn’t Mueller directly urge the attorney general to transmit his report to Congress for it, if of such a mind, to do what Mueller saw improper for him to do as a prosecutor? Why did Mueller let the attorney general, who didn’t conduct the investigation or hear even one witness, make the final decision?

It’s not because Mueller is an incompetent; far from it. Nor that he agrees with the attorney general that Trump, as president, couldn’t obstruct — the report makes clear that is not the case. And it is hard to believe that Mueller felt that, without more, the investigation should simply have ended after two years.

Rather, I suspect, it’s because Mueller, despite his duty to fairness and his impressive service to this country, believes fundamentally in a Marine’s duty of obeisance to procedure and authority. And it manifested itself as long as a month ago when Barr, in his March 24 letter, first acted to kill the obstruction part of the case (Mueller himself having found no Russian “conspiracy” on the part of the president). When Mueller saw Barr immediately defend the president, Mueller simply wasn’t willing to break the chain of command.

When Mueller saw his report deliberately misinterpreted by Barr to suggest that Mueller didn’t find the president’s obstruction conduct criminal, he could have told the American people that Barr cited his report’s words out of context so that it was horribly misleading. He could have written a one-paragraph letter or a short op-ed. He could have let everyone know unambiguously that the only reason his report didn’t outright accuse the president of obstruction was that Mueller saw it ethically wrong to do so, given his decision that he couldn’t indict a sitting president. Beyond that, Mueller could have made it clear in the report itself that this was the only reason he found no obstruction.

Yes, Mueller might do all that when he testifies before Congress, as he will. But don’t hold your breath. Remember, chain of command!

Joel Cohen, a former state and federal prosecutor, practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. Cohen is an adjunct professor at Fordham Law School. He regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications, and is the author of “Broken Scales: Reflections on Injustice.”