Mueller’s obstruction ‘punt’ has Washington confused

Special Counsel Robert Mueller walked past the White House after attending St. John's Episcopal Church on Sunday.Associated Press/FR170079 AP via AP

WASHINGTON — In the end, the decider did not.

For two years, Robert S. Mueller was celebrated as a principled arbiter and an enigma, and a relentless investigator who would take the slurry of allegations surrounding the Russian government’s efforts to influence the 2016 election and separate truth from fiction.

As he doled out indictments and secured guilty pleas from President Trump’s associates, Mueller’s reputation — at least among his supporters — for surgical precision and clear-cut cases only grew. Trump repeatedly lashed out at the proceedings as a “witch hunt,” and Democrats urged impeachment-hungry colleagues to hold their fire until Mueller finished his work.

But instead of clarity, one key result of the Mueller inquiry thus far has been a bipartisan befuddlement in Washington. Relying on Attorney General William Barr’s four-page summary of Mueller’s work, Trump’s allies, his Democratic enemies, and Mueller’s former colleagues have all been left wondering why a man known for being painstakingly thorough left a key loose end as he wound down his inquiry.

Barr’s memo says Mueller did not find the president committed obstruction, but did not entirely exonerate him either, leaving Trump with a head-scratching coda to the investigation that he has otherwise hailed as a vindication. Barr also said Mueller did not establish collusion between Trump’s campaign and the Russian government.

Trump “feels maybe the guy was confused and he punted it,” said Rudy Giuliani, Trump’s personal lawyer, on Tuesday in an interview with CNN.

The confusion is playing out as the country remains completely in the dark about the contents of the Mueller report aside from Barr’s four-page summary, delivered over the weekend.

“I want to know what he found, what he said, and what his conclusions were — and why he didn’t make a decision,” said Senator Angus King, a member of the Intelligence Committee who caucuses with Democrats. “We don’t know if the Mueller report is 5 pages or 500 pages.”

Barr’s summary contained only a smattering of phrases that were quoted from Mueller’s actual report, all of which have become fodder for Washington lawyers and partisans on both sides seeking to unravel the special counsel’s thinking and intentions. The parlor intrigue is focused on the line that says Mueller had neither concluded Trump committed the crime of obstruction — nor had it exonerated him.

“I find that puzzling,” said David Kris, a founder of the Washington-based Culper Partners consulting firm who was assistant attorney general for the National Security Division of the Department of Justice. “I certainly don’t think he’s a person who normally has difficulty making decisions. There was some reason here that he chose not to do this, and I just don’t know what it was.”

Barr’s memo says Mueller was grappling with “difficult issues” of law and fact. But some liberals, still reeling from the lack of a collusion finding, are dismayed that Mueller’s reported both-sides take on obstruction allowed Barr to declare the president’s innocence on the matter. MSNBC’s Rachel Maddow featured a former US attorney criticizing his “incredibly curious” failure to reach a conclusion on Tuesday night.

One of the key players in the obstruction drama, former FBI director James Comey, who was fired by Trump, tweeted out a picture of himself gazing upwards in the woods with the tag-line “so many questions,” after Barr’s letter was released.

“I have great faith in Bob Mueller,” Comey said Tuesday at an event sponsored by Queens University, “but I just can’t tell from the letter why didn’t he decide these questions when the entire rationale for a special counsel is to make sure the politicals aren’t making the key charging decisions.”

Some have argued that Mueller’s hesitance to drop the hammer on Trump on obstruction could embolden future presidents to attempt to intervene in law enforcement proceedings. Trump frequently attacked the Mueller investigation and his own attorney general; he reportedly had to be dissuaded from firing Mueller; and he said in an interview he dismissed Comey in part because of “this Russia thing.”

But people who have worked with Mueller have bristled at the suggestion that he somehow fell short of what was asked of him.

“The notion of Bob Mueller not doing his duty is the notion of the sun not rising in the east and not setting in the west,” said Chuck Rosenberg, who served as counsel to Mueller when he directed the FBI and later as chief of staff to Comey. “He was a Marine infantry officer, a federal prosecutor, and the director of the FBI.”

Mueller’s defenders have pointed out that he was subject to strict rules around the role of a special counsel. Unlike Special Prosecutor Ken Starr, who released a sometimes lurid report to Congress accusing President Bill Clinton of wrongdoing and was a fully independent player, Mueller reported to the attorney general, not Congress.

They also say his approach to the question of obstruction may have been influenced by his knowledge of the Justice Department’s view that a sitting president cannot be indicted.

“There is only one person on the planet who cannot be charged with a crime, at least by federal prosecutors under Department of Justice policy, and that is the president,” Rosenberg said.

Some in Washington have theorized that, as a result, Mueller decided to lay out the evidence on the obstruction charge and leave the decision about what to do to someone else — either Barr himself, future officials in the Justice Department, or Congress.

Preet Bharara, the former US attorney for the Southern District of New York, and Neil Katyal, the former solicitor general who wrote the special counsel rules that governed Mueller’s appointment, have said in interviews and on Twitter they believe Mueller deliberately punted the obstruction decision to Congress.

But others have thrown cold water on that theory, since Mueller knew he reported to Barr, not Congress. They also point out that it’s far from clear Congress and the public will see the full report, as the Justice Department will likely hold back key portions of it on national security and privacy grounds. Instead, they see in Mueller’s non-decision an exercise of personal restraint that has characterized his entire career.

Tim Heaphy, a former US attorney for the Western District of Virginia, said obstruction of justice was one step outside Mueller’s “core mandate” of Russian interference and any Trump campaign involvement, which could have made him more cautious about drawing his own conclusions. Prosecuting obstruction is also incredibly difficult, as it requires proving bad intent.

As to the question of Mueller’s legacy, those who know him say he is likely unruffled by the criticism — and, as always, taking the long view.

“He has far more information than any of us have and he knows this is an evolving story that will have many different chapters to it,” said Paul McNulty, a former deputy attorney general who has worked with both Mueller and Comey.

He added, “He knew that there would be more to the judgment of history than just whether or not his opinion was one way or another.”