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.