This piece by Jeffrey Toobin in the New Yorker about the Mueller investigation is a must, must read. I think this gets to the crux of its thesis:
The President has tweeted about Mueller more than three hundred times, and has repeatedly referred to the special counsel’s investigation as a “scam” and a “hoax.” Barr and Graham agree that the Mueller investigation was illegitimate in conception and excessive in execution—in Barr’s words, “a grave injustice” that was “unprecedented in American history.” According to the Administration, Mueller and his team displayed an unseemly eagerness to uncover crimes that never existed.
In fact, the opposite is true. Mueller had an abundance of legitimate targets to investigate, and his failures emerged from an excess of caution, not of zeal. Especially when it came to Trump, Mueller avoided confrontations that he should have welcomed. He never issued a grand-jury subpoena for the President’s testimony, and even though his office built a compelling case for Trump’s having committed obstruction of justice, Mueller came up with reasons not to say so in his report. In light of this, Trump shouldn’t be denouncing Mueller—he should be thanking him.
I have to say that I’m sort of embarrassed that I put as much faith in Mueller’s reputation for straight-arrow, integrity as I did. I assumed that he and his team would be as appalled by what we were seeing in broad daylight and when they found whatever was hidden, and there was plenty, that they would not hesitate to “do the right thing.”
But “do the right thing, is open to interpretation. And apparently, he was restricted in his mandate from the start and didn’t ever push the boundaries:
At the first Senate Judiciary Committee hearing on the Russia investigation, on June 3, 2020, Graham opened the proceedings by saying, “It’s important to find out what the hell happened.” He wanted to know whether, when Mueller was appointed, there was any evidence that Trump’s campaign had been colluding with the Russians. McCabe’s briefing of Mueller, along with a subsequent meeting between Mueller and Rosenstein—neither of which has been previously reported—begin to address Graham’s question. These meetings demonstrate that, from the beginning, Mueller was instructed to conduct a narrow, fact-based criminal investigation.
After McCabe’s briefing, Mueller, Zebley, and Quarles went to the Justice Department for an introductory meeting with Rosenstein. Rosenstein wasn’t as familiar with the evidence as McCabe and his team were, but he had a broader piece of advice for Mueller. Now that he was Mueller’s boss, it could be interpreted as a command. “I love Ken Starr,” Rosenstein said, according to people present. (Starr was the independent counsel who oversaw the Clinton Whitewater investigation; Rosenstein had been a prosecutor on the Arkansas portion of that inquiry.) “But his investigation was a fishing expedition. Don’t do that. This is a criminal investigation. Do your job, and then shut it down.”
In other words, far from authorizing a wide-ranging investigation of the President and his allies, the Justice Department directed Mueller to limit his probe to individuals who were reasonably suspected of committing crimes. Temperamentally as well as professionally, Mueller was inclined to follow this advice. The very notion of a criminal investigation lasting more than eight years, as the Whitewater case had, was repellent to him, as was Starr’s seemingly desperate search to find something to pin on his target. Persistent news leaks from Starr’s office and Starr’s frequent sessions with reporters in the driveway of his home, in suburban Virginia, were also anathema to Mueller, who began his inquiry by imposing a comprehensive press blackout.
Perhaps that would have made sense in another era with a thoroughly corrupt imbecile for a president who was 100% clueless about the constitution and democratic norms and wouldn’t have cared if he wasn’t. But common sense showed that Trump was a rogue president from the start and a grave danger to the country.
According to Toobin, they determined right at the outset that there were possible criminal charges against Flynn, Papadopoulous and Manafort and that was it. And Mueller never intended to go beyond that.
Mueller did not use the F.B.I. information as a catalyst for a deeper examination of Trump’s history and personal finances. Nor did he demand to see Trump’s taxes, or examine the roots of his special affinity for Putin’s Russia. Most important, Mueller declined to issue a grand-jury subpoena for Trump’s testimony, and excluded from his report a conclusion that Trump had committed crimes. These two decisions are the most revealing, and defining, failures of Mueller’s tenure as special counsel.
Dear God. Why did they bother?
In a way, I’m a little bit more sympathetic to Barr after all this. If the investigation was never intended to go any further than these small potatoes probes then all the secrecy just lent a whole lot more drama to the whole thing than was necessary. Just as Starr’s wide-ranging probe created an atmosphere of impending doom for the president, Mueller’s secrecy ended up doing the same thing. Jesus.
And then there is the report.
Mueller had uncovered extensive evidence that Trump had repeatedly committed the crime of obstruction of justice. To take just the most prominent examples: Trump told Comey to stop the investigation of Flynn (“Let this go”). When Comey didn’t stop the Russia investigation, Trump fired him. Trump instructed his former aide Corey Lewandowski to tell Attorney General Sessions to limit the special-counsel investigation. Most important, Trump told Don McGahn, the White House counsel, to arrange for Mueller to be fired and then, months later, told McGahn to lie about the earlier order. (Both Lewandowski and McGahn declined to help engineer Comey’s firing.)
The impeachment proceedings against Nixon and Clinton were rooted in charges of obstruction of justice, and Trump’s offenses were even broader and more enduring. Moreover, Mueller’s staff had analyzed in detail whether each of Trump’s actions met the criteria for obstruction of justice, and in the report the special counsel asserted that, in at least these four instances, it did. But Mueller still stopped short of saying that Trump had committed the crime.
Mueller’s team faced a dilemma. If Mueller had brought criminal charges against Trump, the President would have had the chance to defend himself in court, but, in light of the O.L.C’s opinion, Mueller could not charge Trump. So Mueller decided not to say whether Trump committed a crime, because he was never going to face an actual trial. The report stated, “A prosecutor’s judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.” In other words, in a gesture of fairness to the President, Mueller withheld a final verdict.
That still left the issue of what Mueller should say about Trump’s conduct. His judgment was announced in what became the most famous paragraph of the report:
Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President’s conduct. The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.
Nothing in Mueller’s mandate required him to reach such a confusing and inconclusive final judgment on the most important issue before him. As a prosecutor, his job was to determine whether the evidence was sufficient to bring cases. The O.L.C.’s opinion prohibited Mueller from bringing a case, but Mueller gave Trump an unnecessary gift: he did not even say whether the evidence supported a prosecution. Mueller’s compromising language had another ill effect. Because it was so difficult to parse, it opened the door for the report to be misrepresented by countless partisans acting in bad faith, including the Attorney General of the United States.
Toobin goes into how Barr manipulated the results of the report and Mueller’s displeasure. We knew about this, of course, but it’s still stomach churning to read it.
He concludes:
Barr was able to dismantle the Mueller report only because the special counsel and his staff had made it easy for him to do so. Robert Mueller forfeited the opportunity to speak clearly and directly about Trump’s crimes, and Barr filled the silence with his high-volume exoneration. Mueller’s investigation was no witch hunt; his report was, ultimately, a surrender.
The vaunted Mueller team was outmaneuvered at every stage by ..(checks notes) … Jay Sekulow, John Dowd, Rudy Giuliani and Bill Barr.
Good God.
There’s much more interesting detail in the piece and I highly recommend reading the whole thing.