Mueller’s Lack Of Explanations Raises New Questions of His Motivations On Three Key Decisions

Below is my column in The Hill newspaper on three unanswered and troubling questions for Special Counsel Robert Mueller. The concerns over Mueller’s motivations was heightened by the justifications that he has offered for some of his decisions like not reaching a conclusion on the weight of the evidence on obstruction. Many of us view Mueller’s rationale (based on the DOJ policy not to indict a sitting president) to be not just unprecedented but illogical. Putting aside my long disagreement with the argument that a president is immune from indictment, that policy (and the underlying memos) say nothing about a Special Counsel reaching conclusions on the evidence of possible criminal acts. Indeed, that is the core purpose of a Special Counsel. If one rejects the rationales of Mueller, you are left with a question of motivation in maintaining these positions.

Here is the column:

In that twinkling zone between man and myth, Robert Mueller transcends the mundane. Even in refusing to reach a conclusion on criminal conduct, he is excused. As Mueller himself declared, we are to ask him no questions or expect any answers beyond his report. But his motivations as special counsel can only be found within an approved range that starts at “selfless” and ends at “heroic.” Representative Mike Quigley defended Mueller’s refusal to reach a conclusion as simply “protecting” President Trump in a moment of “extreme fairness.”

Yet, as I noted previously, Mueller’s position on the investigation has become increasingly conflicted and, at points, unintelligible. As someone who defended Mueller’s motivations against the unrelenting attacks of Trump, I found his press conference to be baffling, and it raised serious concerns over whether some key decisions are easier to reconcile on a political rather than a legal basis. Three decisions stand out that are hard to square with Mueller’s image as an apolitical icon. If he ever deigns to answer questions, his legacy may depend on his explanations.

Refusal to identify grand jury material

One of the most surprising disclosures made by Attorney General William Barr was that he and Deputy Attorney General Rod Rosenstein expressly told Mueller to submit his report with grand jury material clearly marked to facilitate the release of a public version. The Justice Department cannot release grand jury material without a court order. Mueller knew that. He also knew his people had to mark the material because they were in the grand jury proceedings.

Thus, Barr and Rosenstein reportedly were dumbfounded to receive a report that did not contain these markings. It meant the public report would be delayed by weeks as the Justice Department waited for Mueller to perform this basic task. Mueller knew it would cause such a delay as many commentators were predicting Barr would postpone the release of the report or even bury it. It left Barr and the Justice Department in the worst possible position and created the false impression of a coverup.

Why would a special counsel directly disobey his superiors on such a demand? There is no legal or logical explanation. What is even more galling is that Mueller said in his press conference that he believed Barr acted in “good faith” in wanting to release the full report. Barr ultimately did so, releasing 98 percent of the report to select members of Congress and 92 percent to the public. However, then came the letter from Mueller.

Surprise letter sent to the attorney general

Five days after submitting his report, Mueller sent a letter objecting that Barr’s summary letter to Congress “did not fully capture the context, nature, and substance” of the work and conclusions reached by his team. He complained that “there is now public confusion about critical aspects of the results of our investigation.”

The letter surprised Barr for good reasons. First, Barr had offered to allow Mueller to read the summary before submitting it. Mueller declined but then sent this letter calling for the release of sections of his report, even though they had not been cleared by Justice Department staff. Second, Barr has known Mueller for decades. Yet, Mueller did not simply pick up the phone to discuss his concerns and possible resolutions or to ask for a meeting. Instead, he undermined Barr with a letter clearly meant to insinuate something improper without actually making such an accusation.

Mueller’s letter also requested something he knew Barr could not do, which is to release uncleared portions of the report, including material later redacted by Justice Department staff. Mueller’s letter is notable in what it did not include, which is an acknowledgment that he was responsible for the need for the summary, as well as much of the delay in the release of the report.

In an earlier meeting, Barr explained that he wanted to quickly release the report and allow the work of the special counsel to speak for itself. To do so, however, Mueller and his people needed to identify material that should be redacted under federal law, which they did not do. While Barr has described Mueller’s letter as “snitty,” it was in fact a sucker punch.

Refusal to reach an obstruction conclusion

The most curious and significant decision by Mueller was refusing to reach a conclusion on presidential obstruction. While entirely ignored by the media, Mueller contradicted himself in first saying that he would have cleared Trump if he could have, but then later saying that he decided not to reach a conclusion on any crime.

I have already addressed why Mueller’s interpretation of memos from the Justice Department Office of Legal Counsel is unprecedented and illogical. He concluded that, in barring the indictment and prosecution of a sitting president, those memos meant prosecutors can investigate but not reach conclusions on possible criminal acts.

It is not just his legal interpretation that is incomprehensible. Mueller was appointed almost two years before he released his report. He was fully aware that Congress, the Justice Department, the media, and the public expected him to reach conclusions on criminal conduct, a basic function of the special counsel. He also was told he should do so by the attorney general and deputy attorney general. Yet, he relied on two highly controversial opinions written by a small office in the Justice Department.

Over those two years, Mueller could have asked his superiors for a decision on this alleged policy barring any conclusions on criminal conduct. More importantly, he could have requested an opinion from the Office of Legal Counsel. That is what the Office of Legal Counsel does, particularly when its own opinions are the cause of confusion. One would think you would be even more motivated to do so, if you intended to ignore the view of the attorney general and his deputy that there is no such policy.

Mueller, however, is an experienced litigator who knows not to ask a question when you do not know the answer or when you know the answer and do not want to hear it. His position is even more curious, given his lack of action after Barr and Rosenstein did precisely what he said could not be done under Justice Department policies. If Mueller believed such conclusions are impermissible, why did he not submit the matter to the Justice Department inspector general?

His press conference captured his report perfectly. It was an effort to allude to possible crimes without, in fairness to the accused, clearly and specifically stating those crimes. Mueller knew that was incrimination by omission. By emphasizing he could not clear Trump of criminality, Mueller knew the press would interpret that as a virtual indictment.

What is concerning is not that each of his three decisions clearly would undermine Trump or Barr but that his decisions ran against the grain for a special counsel. The law favored the other path in each instance. Thus, to use Mueller’s own construction, if we could rule out a political motive, we would have done so. This is why Mueller must testify and must do so publicly.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.

162 thoughts on “Mueller’s Lack Of Explanations Raises New Questions of His Motivations On Three Key Decisions”

  1. Mueller has proven to be what I thought he was. A smoother James Comey.
    The sad part is that the media are so incompetent that there is no call for him to be accountable.

  2. It is ludicrous that such discussions of Mueller leave out the fact that he is a 9/11 conspirator, having lead the FBI in its non-investigation of the events of 9/11/2001.

  3. Mueller cannot testify. If he did, that his motivation was political would come out, and what little of his tattered reputation that remains would be destroyed. Barr stated that he does not care about his legacy, and I believe him. Mueller hasn’t said anything about his own legacy, but I’m betting he cares deeply about it.

  4. Meuller is a proven incompetent.

    Bungled Hells angels RICO trial
    Failed in oversight duties Boston office of FBI which colluded with informant Whitey Bulger in his murders resulting in the imprisonment of two FBI officers– a day late a dollar short for the victims!
    Misidentified and smeared Stephen Hatill as anthrax suspect when it was somebody else
    IRAQ WMDS”

    are we now surprised he botched this job too?

    Maybe Rod Rosentein who appointed him really is on Trump’s side after all! LOL

  5. You’re going to need a bigger blog. Many more questions:

    1. In his report he says if you cannot bring charges, then a prosecutor should not lay out allegation because the accused has no way to fight back. Then he goes on for 200 pages doing just that. The accusations were all one-sided, many from people he set up under coercion to say things. In other cases, they were “recollections” or written memories after the fact – and what rational person would not put themselves in the best light in those conditions. Often it read like a NYT or WaPo anonymously sourced article where Mueller’s team quotes Trump or quotes others in a room where no one could been in the room taking these quotes down. So he slimes Trump and even then lists 10 things that don’t come close to obstruction. (He asked his lawyer to fire someone (which is legal), the lawyer does not; and Trump drops it (does that SOUND like Trump or is that the lawyer’s way of trying to make himself a hero?). None of that comes close to obstruction- obstruction of a non crime by the way.
    He then does the same in his exit statement – he states that no prosecuting attorney should accuse someone unless brining charges, and then does just that.
    Why would he say one thing and then do another in these cases?
    2, Why did he name so many partisan attorneys to the team; attorneys that had clear conflicts of interest?
    3. Why did tell multiple attorneys including Barr during meetings that the reason he did not charge Trump had nothing to do with DoJ guidelines, but then come out in the news conference and say that was the only reason he didn’t?
    4. Why did he wait months to fire Stzok and Page from his office after he had unearthed the texts clearly showing ethical lapses and biases?
    5. Why, if he spent two years delving into crimes from 30 years ago that had nothing to do with the Russian investigation does he claim that he did not have authority to investigate the FBI, DoJ, and others for the origins of the Russian collusion – which included Russian collusion by Steele and Fusion?
    6. Why, knowing there was no collusion did he work to create process crimes and then use that coercion to get weak statements to be used against the president?
    7. Why, knowing there was no collusion after about six months of work did he carry on for two more years of putting a cloud over the presidency and leaking damaging information?

    1. Oh, much of it was obvious before. They just didn’t want to believe it. Now we are watching them backpedal and pretend they were never wrong.

  6. When I was at the polling place on election day in the election between Trump and Hillary there was someone there stating to others that Hillary had sex with a dog in high school. A male dog. Did that kind of false statement (or true) alter the election results?
    I voted for her because I approve of dogs.

    1. If I had confidence that the Hilary clearly did not have sex with a dog while in high school, I would say so.

  7. Was Monica Lewinsky paid by the Russians to flirt with Bill Clinton and thence get his physical touching and whatnot?

  8. What election issue, election topic, false facts, provided by some Russian government agent, helped get voters over to Trump on election day?

  9. Which person, named a “Russian”, or which Russian persons, did Trump “collude with”?
    What was the “collusion”?
    After all this media blather I have not heard or seen evidence that Trump colluded with some Russian who was connected to the Kremlin or other Russian government office in order to do something illegal or to help win his election.
    What about Hillary?

      1. can you believe a perverted lying snitch like this? I can’t. whatever he said was just to keep his own evil self out of prison. so much for “informants”

  10. P T, I’m bored by it all, why are are you supporting the American hating Traitor Bob Mueller?

    Sage advise P Turley, I tell you, you are on the wrong road! Stop, get the correct bearing , turning around & head in the correct direction. (Infowars.com, etc….)

    (To you’re credit, AG Bob Barr, so far seems pretty solid!)

    Or don’t! My family, at least 6 went with Patrick Henry, where are you going?

    BTW: As a friend, I see you/your family/friends are vulnerable, you are retarded if you don’t warn them to Arm themselves & take a hard look at their security. It’s one of those weird times in history, don’t over think it, bring in some security for your family/friends!!!

    You chose to be stupid, go ahead, I warned you, lunatics everywhere nowadays.

  11. It seems Mueller and Comey were cut from the same brown shirt cloth.
    Then again Josef Stalin had a defender in the NYT.

    “As FBI director, Mueller repeatedly misused and abused the authority granted to him by Congress. Mueller and Comey utterly bungled the federal investigation into the 2001 Anthrax attacks, resulting in a $5.8 million judgment against the government after the two men falsely accused an innocent man of being behind the attacks.

    Even after the court judgment against him, Mueller was defiant.

    “I do not apologize for any aspect of the investigation,” Mueller said afterward. He then doubled down and said it would be wrong to say there were any mistakes in how he handled the investigation.

    Then there was Mueller’s handling as FBI director of a case in which FBI agents framed innocent men of murders the FBI knew had been committed by their own informants. One of the innocent men died in prison awaiting justice for a crime he never committed.”

    https://thefederalist.com/2019/05/29/mueller-just-proved-his-entire-operation-was-a-political-hit-job-that-trampled-the-rule-of-law/

  12. MUELLER LEFT US IN A LURCH

    SOMEDAY WE MIGHT LEARN THE REASON

    I find it intriguing that Robert Mueller failed to write what he believed. Democrats and Republicans alike are exasperated that Mueller only ‘implies’ Trump’s guilt on obstruction.

    That failure to take ownership strikes many as disingenuous. Not what we’d expect from a decorated soldier and government professional. If anything we expected Robert Mueller to be a hero sheriff standing up to the Cattle Baron.

    This Mueller paradox leads me to suspect intrigue lurk beneath the surface. Robert Mueller knows something we don’t know. Something that makes him feel like being noncommittal is safer than recommending an indictment on Obstruction.

    Perhaps Mueller learned Mike Pence is hopelessly unready for the Oval Office. I mention that because it would be a fear of mine.

    As Governor of Indiana, Pence was not that popular. His prospects for reelection were uncertain at best. Pence could be one of those men who bumble to high places. Fellow Hooter Quayle bumbled to that job!

    Another theory for Mueller’s lack of clarity could be the Republican-led Senate. Mueller may believe Mitch McConnell would fight impeachment with scorched-earth tactics. Sounds like McConnell to me. If Republican Senators label impeachment an ‘attempted coup’. Or if Rightwing Media calls it an ‘attempted coup’ and repeats it every hour violence could result.

    Donald Trump would call impeachment an ‘attempted coup’. Rightwing Media would back him up. ..Then what..?? That’s the big question.

    If half the public honestly believes an ‘attempted coup’ is playing out, we have the recipe for ‘civil unrest’. That possibility may have spooked Robert Mueller. But could he really tell us?

    1. “MUELLER LEFT US IN A LURCH SOMEDAY WE MIGHT LEARN THE REASON”

      Maybe the reason is Mueller doesn’t want to end up being prosecuted himself.

      1. Alan, for once I might agree with you. Trump might just say he wants to prosecute Mueller. And rightwing media would cheer with support. ..Then what..??

        The Supreme Court would have to side with Mueller who was legally appointed and recognized as Special Counsel. But that wouldn’t stop Trump from claiming Mueller was part of an ‘illegal plot’. ..Then what..?

        Where does it go for arbitration ‘after’ the court has ruled? That could be a problem with Donald Trump.

        1. Peter, Trump has done nothing wrong and would stay clear of such a thing though I think Mueller has a lot to answer for. Of course in his own defense Mueller could claim stupidity and that probably could cover most of what he has done that was wrong, but intentional stupidity would be more accurate.

          Take note Mueller should have been fired for not having an arms length distance from the events but Trump didn’t do that. Democrats, however, are still trying to convince people that Hillary won.

          1. Alan, you’re in denial here. Republicans controlled Congress during the first year and a half of Mueller’s probe. If indeed Mueller was abusing his office, Republicans had 18 months to stop him. That didn’t happen though. How do you explain?

            1. Peter, you are so ideological that you are unable to think clearly. I think the Republicans have acted terribly with the only factors in their favor is that a few Republicans have acted appropriatley while the Democrats acted destructively and against America and American Citizens.

              There were reasons for investigating all things Russian and that goes for all people working for the federal government now and before. It also includes Hillary Clinton, John Podesta, Joe Biden and his son and a whole host of prominent people. The investigation should have also looked into the abuses by the FBI, Clapper and Brennan.

              I don’t know why you keep asking me to defend Republican actions that I disagreed with. I am not a Republican.

            2. The Republican lifers in Congress didn’t embrace Trump at first because, oh, let’s see, he’d been a Democrat for so long, and he was a loose cannon whom they didn’t control and couldn’t influence, and he was… icky, with all the undignified tweeting and weird hair and all. They didn’t start believing he was going to be an actual Republican president until they started to see his judicial nominees.

              But even then, there was literally NO WAY for them to rein in the Mueller team without being painted in bold, bright colors as Trump’s – choose your rude term to replace “puppets.” The field had been prepared well in advance: any attempt to limit the investigation would be proof of guilt. They weren’t going to risk their own seats for that – especially with Trump adamantly protesting his innocence. They had nothing to gain from trying to close an investigation that the president himself was giving cover for, by saying repeatedly that it was a witch-hunt and would ultimately have to conclude with no charges filed against him. Which is what happened. So the R’s in Congress let the process run its course, avoided any appearance of (let’s go ahead and say what would have been said if they’d acted differently) obstruction, and the proper conclusion was reached.

              Now the only problem is that the D’s don’t like that conclusion.

    2. Cable news in the house?
      Get over it.
      Mueller’s crew is an extension of the Democrat/Deep State/Media complex. Weissmann lurks as lead attorney and Mueller takes calls and long lunches.
      If you can’t see through any of this after all this….Let your wife negotiate for your next high-ticket item.
      Reading Turley or Andy McCarthy chronologically is extremely helpful, but I’m hoping you’re just fishing for an actual debate and can see the shocking behavior and from whence it comes.

    3. So, if I understand your comment correctly, you believe that Mueller acted against norms because he is trying to protect the American public from the evils (or incompetence, or both) of the Trump administration.

      In other words, you believe Mueller is a partisan, and you think that’s appropriate… because you agree with his partisan leaning.

      I’m going to go out on a limb and guess that you don’t think your position IS a partisan one, but is the only reasonable position – the only way to protect the American people (apparently largely from themselves). That seems to be a common view among left-leaning people: that their hatred of Trump, their disdain for him as both president and human being, their unswerving conviction, no matter what counter-evidence is presented, that TRUMP is a criminal, a doofus, and possibly a Manchurian candidate, yet CLINTON and OBAMA were and are ethically pure and intellectually unassailable – that these opinions they hold are in no way partisan. Instead, these opinions are, they believe, facts. Unquestionable. Self-evident.

      We’ll get a lot farther in political discourse if we all do a better job of recognizing opinion for what it is. Feel free to hate Trump; feel free to believe he’s a bad president. But don’t mistake your feelings for facts. The “attempted coup” language is overblown… but so was and is the “Trump is destroying the Constitution” language on the other side.

      1. Sorry, my comment is misplaced in the thread! It was supposed to follow the one about Mueller (for instance) wiring that if Trump were actually impeached and convicted, Pence would be totally out of his depth as President.

        1. i felt like the “coup” language was metaphorical but also I was very concerned about the over the top comments from former DNI and Cia honchos against Trump

          Keep in mind these spooks, CIA specifically, have been involved in governmental regime changes aka coups very much in the past, and I don’t put it past them to try it here

          hence, I approve of Stone calling for Clapper to get locked up for treason. let that be a lesson to the rest of them who come after! Clapper really has run his mouth way too much.

          McCabe also so much as admitted coup ideas

          https://www.commdiginews.com/politics-2/mccabe-admits-treasonous-path-confesses-coup-conspiracy-113662/

      2. Jamie you make a sound and moderate point

        However I think there was an attempt to “throw the snitch jacket” at trump

        that’s jailhouse talk for framing someone as a snitch; and it’s a favorite trick of snitches trying to draw attention away from themselves.

        i think they painted Trump as collaborating with foreign intelligence, but the foreign intelligence interference that really mattered was the bogus excuse for the FISA warrants supplied by some former British spook based on his dubious Russian sources. hmm, see how that works?

  13. The violent left:

    “Lovebirds Canceled
    Posted: 01 Jun 2019 08:31 PM PDT
    (John Hinderaker)
    Phelim McAleer and Ann McElhinney are Irish documentary filmmakers who have made several notable movies, including Gosnell. Their latest project is a play called FBI Lovebirds: Under Covers:

    The play, “FBI Lovebirds: UnderCovers,” casts Dean Cain and Kristy Swanson as FBI agents Peter Strzok and Lisa Page. The production’s dialogue comes straight from the pair’s texts, which revealed both their romantic affair as well as plans to battle Donald Trump’s rise to the Oval Office.

    It is a nice concept, one that another playwright used effectively with grand jury testimony in the Michael Brown case. All of the dialogue is taken straight from the texts exchanged by Peter Strzok and Lisa Page. Unfortunately, the production has been canceled due to threats of violence:

    The team behind the project just announced the theater canceled its contract to host the performance in an email alert. The theater cited “threats of violence” for why it reversed course on the production, according to “FBI Lovebirds” email.
    ***
    Here’s the official statement from the D.C.-based theater.

    Studio Theatre has cancelled its contract with third-party rental client Unreported Story Society. Media reports have made us aware of undisclosed details about the event and have generated open and violent threats against the theater and event participants. Studio has an institutional responsibility to consider the safety of our staff, patrons, community, event organizers and attendees. These concerns must be paramount.

    So, once again, liberals get their way by threatening violence. This is a common feature of today’s landscape. Liberals have dropped all pretense of wishing to live in a diverse, pluralistic, civil society. They are making all-out war on all who do not buy into their extreme views. This is an interesting case, because the play’s script consisted entirely of statements that were actually made by Strozk and Page in texts. But for leftists, some facts are too explosive to be allowed to see the light of day.

    The play’s authors say they will continue to try to find a theater willing to produce their play:

    “We’re used to this. This has happened to us in every project we’ve done when we’re trying to tell the truth and report stories no one else is reporting,” Ann McElhinney said in a video released today.

    It’s another day in the life of those who try to bring a sane perspective to public life in 21st century America.”

  14. Once again the far left under whatever name proves the need for our standing Military and it’s Oath of Office.Now if the left is just stupid enough to get their oft asked for martial law. One can only hope

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