gracchusdixit

Little more than a week ago, Robert S. Mueller III surprised the nation by holding his first, and what he declared would be his last, press conference regarding the investigation he led into Russia’s assault on the 2016 presidential election.  Although the press conference itself came as a surprise, most of what Mueller had to say did not, since he largely confined himself to reciting what had already appeared in his written report.  Even so, Mueller’s low-key nine and a half minutes at the podium were deeply troubling.

From the day two years ago, when Robert Mueller was appointed Special Counsel, we have been told repeatedly that he is little less than an American icon:  a decorated war hero, an upholder of the rule of law, and an utterly non-partisan public servant.  There is little reason to question any of this.  On the contrary, everything in Robert Mueller’s life and career points to it being true.  

What does deserve questioning, however, is the nearly universal assumption that Mueller’s virtues should insulate him from scrutiny.  One truth does not rule out another.  Robert Mueller’s estimable virtues do not foreclose the possibility that he is capable of making mistakes or may be flawed by personal, professional, or ethical failings.  We cannot responsibly accept the verdict of his two-year investigation without asking ourselves whether such failings, if they exist, may have influenced the outcome. 

When I use the word, “ethical,” I do not mean to suggest that Robert Mueller is tainted by any sort of compromise or corruption.  By all accounts, he is capable of neither.  I use the word in a broader sense, to mean professional conduct that serves the greater public good.  And in that sense of the word, Robert Mueller truly failed us.

To begin with, he decided to play strictly “by the book,” despite the blatant and unprecedented lawlessness of the person he was investigating.  To quote Mueller’s own words from the podium:

If we had had confidence that the President clearly did not commit a crime, we would have said so.  We did not, however, make a determination as to whether the President did commit a crime.  The introduction to the Volume II of our report explains that decision.  It explains that under long-standing Department policy, a President cannot be charged with a federal crime while he is in office.  That is unconstitutional.

This statement is frankly inexplicable coming from an attorney as experienced as Robert Mueller.  The “policy” he refers to is simply an opinion—and a highly questionable opinion at that—from the Office of Legal Counsel within the Department of Justice.  As such, it has no constitutional force.  Indeed, the DOJ has no authority to determine the constitutionality of anything.  It is not a judicial institution but a law enforcement agency, created almost a hundred years after the constitution was written.  Neither the DOJ nor Robert Mueller is empowered to decide whether a president may be indicted while in office.  That is up to the courts.    

Moreover, Mueller was plainly wrong in asserting: 

The Special Counsel’s office is part of the Department of Justice and by regulation, it was bound by that Department policy.  Charging the President with a crime was, therefore, not an option we could consider.

Robert Mueller was not “bound” to abide by a Department of Justice policy based on a mere legal opinion.  He was perfectly free to have challenged that opinion.  In fact, his Trump-appointed boss, Bill Barr, said as much.  That Mueller declined that “option” was a choice that he, and he alone, decided to make.

More baffling still, Mueller chose to treat Donald Trump as if he were any ordinary defendant in an everyday criminal trial, thereby failing to address the unprecedented threat posed by the Trump presidency to our most fundamental democratic institutions:

And beyond Department policy, we were guided by principles of fairness.  It would be unfair to potentially accuse somebody of a crime when there can be no court resolution of the actual charge.

To state the obvious:  Donald Trump isn’t “somebody;” he is the President of the United States.  He certainly doesn’t need a “court resolution” to defend himself against charges or accusations, because he is capable of mustering the virtually unlimited power of the federal government to that purpose.  It is hard to fathom why Robert Mueller thought otherwise.  It is even harder to understand why he imagined that “principles of fairness” should be applied to a man who has shown nothing but contempt for such principles.  Mueller’s duty—his “ethical” obligation—was to call Trump’s corruption to account.  Instead, he chose to pretend that it doesn’t exist.

Finally, there is no way of sidestepping the unpleasant reality that Robert Mueller’s high-minded righteousness is marred by a whiff of arrogance:

Now I hope and expect this to be the only time that I will speak to you in this manner.  I am making that decision myself.  No one has told me whether I can or should testify or speak further about this matter  There has been discussion about an appearance before Congress  Any testimony from this office would not go beyond our report.  It contains our findings and analysis and the reasons for the decisions we made.  We chose those words carefully and the work speaks for itself. And the report is my testimony.  I would not provide information beyond that which is already public in any appearance before Congress.

It is not up to Robert Muller to decide that a press conference will be “the only time” he speaks to the American people, nor is it his prerogative to say whether he will or will not appear before Congress.  

No matter what he had to say during his press conference, Mueller’s work does not “speak for itself”.  On the contrary, it leaves many important questions hanging.  What became of the intelligence community’s investigation into the Trump campaign’s numerous contacts with the Russians?  Why did Mueller allow Trump to get away without testifying personally?  Why did he write a letter to William Barr, protesting the latter’s characterization of his work?  

Robert S. Mueller III was hired by the American people to do a job.  It is no part of that job to insist that he “would not provide information beyond what is already public in any appearance before Congress”.  If he is called to testify before Congress, if he raises his hand and swears to tell the whole truth, it will be his ethical duty to do so.   If he refuses, he will have failed the nation once again.