Below is my column in The Hill newspaper on why Special Counsel Robert Mueller may not want to testify in public. Mueller clearly had trouble explaining why he was refusing to reach a conclusion on obstruction in a meeting with Attorney General Bill Barr and Deputy Attorney General Rod Rosenstein. It could be a hundred times more difficult — and embarrassing — before a congressional committee.
Mueller failed to perform the most basic function of a special counsel to reach conclusions on possible criminal conduct. After accepting the job as Special Counsel, Mueller basically decided not to be a special counsel with respect to this core responsibility. It was like watching Bodexpress run in the Preakness without a rider. My first reaction to both scenes was: can he do that? The answer in both cases is it is possible but this is not how it is done. The Special Counsel is mandated to find possible evidence of criminal conduct. Period.
Here is the column:
One of the more profound statements by Archie Bunker in “All In The Family” came when he corrected his daughter Gloria for questioning if God made a mistake: “God don’t make no mistakes, that’s how he got to be God.” There is a certain value in divine status. Natural disasters are dismissed as “God’s will,” and genetic defects as part of “God’s plan.”
Very few mortals ever warrant such faith, except perhaps Robert Mueller. Washington has deified him by popular acclamation. The times demanded it. It was simply not enough to demonize Donald Trump. That was done throughout the 2016 campaign, with the notable assistance of Trump himself. However, you cannot have a villain without a countervailing hero. Evil needs a point of reference, and Mueller became that reference. While Trump is portrayed as bombastic, impetuous, and juvenile, Mueller is painted as stoic, reserved, and professional. Indeed, as every new filing undermined the common narrative of Trump campaign collusion with the Russians, the commentators fell into a mantra of “just wait for Mueller.”
They are still waiting. Mueller has yet to testify despite Attorney General William Barr stating that he has no objections to him doing so. In the past week, it was confirmed that Mueller is resisting testifying in public. At the same time, House Judiciary Committee Chairman Jerrold Nadler indicated that his committee may indeed allow Mueller to appear in private with no subpoena, no cameras, and no cries of coverup. The media is remarkably uninterested in the reason for this demand from Muelller. After all, if you have no faith in Mueller, then you are an apostate within the Beltway.
So why is Mueller and his staff so worried and apprehensive about his answering questions in public? To answer that question, we must look at his report objectively, as agnostics rather than as advocates for one side or the other. Mueller has to address several glaring problems with how he carried out his responsibilities, including his reported failure to identify grand jury material, as requested by Barr and Deputy Attorney General Rod Rosenstein, which may have delayed the report.
The most troubling failure, however, was Mueller refusing to reach a conclusion on obstruction. He reached a conclusion on any crimes linked to collusion and stated that his staff could “not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.” He then stated that he would not reach a conclusion on obstruction, without explaining why beyond citing past Justice Department memos stating that a sitting president cannot be indicted. His decision on this matter is incompatible with his mandate.
The special counsel is mandated to find possible evidence of criminal conduct. If Mueller is going to argue that he felt constrained by Justice Department memos, he was a failure as special counsel. I have argued, going back to my testimony in the Clinton impeachment hearings, that the Justice Department was wrong on those memos. Nothing in the Constitution says that a president has immunity from criminal charges. Nevertheless, one can accept these memos and still see the illogic in reading them as a bar to reaching conclusions as a special counsel.
First, any implied interpretation would not only contradict the governing federal regulations but contradict the express directions of the Justice Department superiors overseeing the special counsel. Indeed, both Barr and Rosenstein pushed Mueller to reach a conclusion on obstruction. When he failed to do so, they did it for him. No one has suggested that they violated Justice Department policy in reaching their conclusion.
Second, any reading of the two Justice Department memos dispels any notion of a limit on special counsels. Even accepting the flawed logic of the memoranda, they only speak to indicting a president while in office. Because such an indictment would tie up a president in litigation, it was argued that it would interfere with his functioning. Yet, nothing in that policy would stop a special counsel from making findings of criminal conduct. Indeed, Mueller made findings not just on collusion but on facts underlying obstruction. It is nonsensical to read memos on the indictment of a president to mean that you cannot find a basis for criminal charges.
Finally, this is what a special counsel does, as defined in the regulations, which outweigh any Office of Legal Counsel memos. A special counsel makes prosecutorial decisions. For two years, both Congress and the executive branch expected Mueller to reach conclusions. Before filing his report, Barr and Rosenstein expressly told him to do so. If he was not willing to do so, he should have stood aside when asked to come on.
Many of the commentators discussing the report in the media not only make excuses for Mueller but ignore that the report is not particularly impressive. The investigation by the FBI certainly was impressive and notable, especially on Russian hacking and trolling operations. However, the report itself reads like a long account of interesting vignettes with no prosecutorial conclusions. One obvious concern is that Mueller and his staff did not reach a conclusion on obstruction because they could not bring themselves to give Trump a clean bill of health on criminal conduct.
The statement released by Barr was damning to be sure. Even if Trump was not found to have acted in an indictable or impeachable fashion, he was found to have acted in a contemptible fashion. However, reaching a conclusion in both volumes may have proven too much for Mueller after months of abuse by Trump. If this was the motivation, then the greatest political offense established by the special counsel was indeed his own.
Mueller may not want to answer any of these questions in public. Indeed, he seemed to have trouble answering even in private. As Barr tellingly testified to the Senate: “Special counsel Mueller stated three times to us in that meeting, in response to our questioning, that he emphatically was not saying that,” but for the Office of Legal Counsel opinion, “he would have found obstruction.” He continued: “We did not understand exactly why the special counsel was not reaching a decision. When we pressed him on it, he said that his team was still formulating the explanation.”
That is not the Mueller many of us encountered 30 years ago. It is bizarre that he would meet with the attorney general and the deputy attorney general about his conclusions but not have a clear explanation on not reaching conclusions. In the past, the idea of Mueller saying his team was working on an explanation after two years would have been laughable.
The House Judiciary Committee is not placing conditions on Mueller testifying as it did with Barr, who had been willing to appear in public until the committee added a condition guaranteeing that he would not by insisting that he be questioned by legal staff, like a mob “torpedo” in the Kefauver hearings. When asked why they would forgo Barr testifying by insisting on such a condition, members said the special counsel report was so complicated that legal staff needed to question the witness.
Suddenly, it seems, the report has become less complicated. There is no demand for a public hearing and, apparently, no demand for legal staff to question Mueller. He has much to explain, and the public is entitled to hear it without the usual partisan filters. Mueller can still fulfill his mandate and redeem his legacy. After all, to err may not be divine, but it is human.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.