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EPA's 3 Dirty Tricks to Undermine Regulation (and Why They Probably Won't Work) |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=50951"><span class="small">Richard L. Revesz, Slate</span></a>
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Sunday, 09 June 2019 13:41 |
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Revesz writes: "The Trump administration appears to be entering an alarming new stage of its attack on environmental protection."
Fossil fuel emissions. (photo: J David Ake/AP)
EPA's 3 Dirty Tricks to Undermine Regulation (and Why They Probably Won't Work)
By Richard L. Revesz, Slate
09 June 19
 he Trump administration appears to be entering an alarming new stage of its attack on environmental protection. For the past two-plus years, it has used a retail approach, targeting Obama-era environmental rules one by one, trying to suspend compliance deadlines. This strategy has been met with limited success — more than 90 percent of the administration’s deregulatory efforts are being defeated in court, mostly due to sloppy agency actions.
But the Environmental Protection Agency has recently decided it will undertake a new approach in its effort to launch a wholesale attack on environmental regulation: It will change the way it collects and processes data, to provide better justification to dismantle the analytical foundation of its rules. These moves fly in the face of established economics and health sciences, and are inconsistent with the practices of administrations of both parties over four decades. The consequences for the environment and public health could be disastrous. But even as this approach might be more deliberate, these actions are unlikely to survive court challenges as well.
In the coming weeks, EPA plans to finalize vastly weakened versions of two important climate rules: a regulation controlling greenhouse gas emissions from power plants and standards to limit emissions from vehicles. The draft proposals for the Trump administration’s revisions to each of these rules were rife with analytical problems. In the power plant rule revision, the agency exercised its discretion in a manner that imposed billions of dollars’ worth of net harm on the American public. And the vehicle rule analysis is justified by claims about improved safety that rest on a wholly implausible and discredited economic analysis: It assumes that people will buy more — as opposed to fewer — vehicles as they become more expensive.
These failures are likely to reappear in the final rules as well, because the administration would be unable to justify its chosen actions without mangling the underlying analysis. As a result of these analytical failures, the rollbacks will be highly vulnerable to legal challenges and could add to the administration’s string of court losses.
Perhaps sensing urgency as these losses mount and the president’s term slips away, EPA appears to be pivoting from a retail to a wholesale attack on environmental standards. The agency has taken steps to begin an assault on the core foundations of environmental rule-making, signaling that it plans to alter the building blocks of the economic analysis that underlies its rules.
This new EPA attack features three dirty tricks that would erase the bulk of the benefits of critical environmental policies. These benefits—tens of thousands of averted deaths and hundreds of thousands of averted hospitalizations for strokes, heart attacks, and respiratory ailments—would, of course, still be there. The administration’s analysis would just pretend otherwise.
One EPA method involves calling into question the benefit of reducing pollution below the level of the national ambient air quality standards. Since the late 1970s, every administration — Republican and Democratic — has acknowledged that more stringent standards would provide greater health benefits. But earlier this month, William Wehrum, who oversees air quality for EPA, brazenly cast doubt on this long-established, science-based approach, telling the New York Times that counting these benefits in regulatory analyses “doesn’t make any sense” because the standards are set at “safe” levels, thereby implying that there can be no benefits at concentrations below the ones that EPA deems to be “safe.”
The problem with this understanding is that the Supreme Court has made clear that “the word ‘safe’ does not mean ‘risk-free.’” And, the United States Court of Appeals for the District of Columbia Circuit, which hears all the challenges to national ambient air quality standards, explained that in setting these standards, EPA must “‘select … standard levels that … reduce risks sufficiently to protect public health’” even while recognizing that “‘a zero-risk standard is [not] possible.’”
Wehrum should know better, or at least, he did not too long ago. He had previously served under President George W. Bush in senior positions in EPA’s air office between 2001 and 2007. During that time, in setting national ambient air quality standards for particulate matter and for ozone, EPA acknowledged that significantly higher benefits would accrue to the American people if the agency set the standards at levels more stringent that the ones it ultimately chose. The significant concern with this approach is that it will pave the way for EPA to support laxer standards without having to acknowledge that there is a cost to human life in doing so.
A second EPA trick involves concealing “co-benefits” — the indirect (and often enormous) benefits that result when a regulation reduces pollutants besides the ones being directly targeted by a particular regulation. EPA has launched an attack on co-benefits most directly as part of a revision to a finding related to a major mercury pollution rule. It’s trying to argue that the $37 billion to $90 billion in health co-benefits resulting from reductions in harmful particulate matter pollution don’t exist. If the administration’s goal is to obscure the value of environmental rules, undermining co-benefits will certainly help.
Co-benefits are so universally accepted as a worthwhile thing to consider that even the Trump EPA’s own handpicked Science Advisory Board recently highlighted the importance of considering them. Furthermore, a landmark guidance document on regulatory analysis issued by the Office of Management and Budget under George W. Bush explicitly requires the consideration of indirect benefits, though the EPA has consistently taken co-benefits into account since the Reagan administration.
Courts have also ruled that the indirect costs of regulations must be considered, so ignoring indirect benefits would create a lopsided and unjustifiable analysis. Indeed, counting indirect effects when they are negative but ignoring them when they are positive is the embodiment of the type of arbitrary and capricious conduct that the law categorically prohibits. But Trump’s EPA now wants to make this the norm.
EPA’s final dirty trick involves questioning foundational scientific studies on the harmful health impacts of particulate pollution. The detrimental health effects of particulate matter emissions are exceptionally well-documented. Two foundational studies performed in the 1990s found that people in cities with the highest levels of these pollutants were dying two years earlier than those in the least-polluted cities. The results were independently verified by two groups of outside researchers, and these studies have helped inform several major air pollution regulations.
But an EPA rule proposed last year would bar the consideration of studies like these, even though they are widely regarded as state-of-the-art, because their individual patient health data cannot be shared publicly, because of patient confidentiality rules. The administration’s approach would make it virtually impossible for regulatory policy to rely on epidemiological studies, a science-denying approach that is unlikely to find a receptive ear in the courts.
During the retail phase of the Trump administration’s attack on environmental rules, EPA cut corners, which led to most of its actions being overturned in court. This new wholesale attack on environmental rule-making is far more pernicious than the last. The Trump administration is actively trying to undermine and minimize science that has served as a universal baseline for decades. But once again, it’s pursuing its case sloppily, which means the courts are likely to see through these dirty tricks and stop them before they have a massively negative impact on public health.
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FOCUS: Joe Biden Worked to Undermine the Affordable Care Act's Coverage of Contraception |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=47633"><span class="small">Ryan Grim, The Intercept</span></a>
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Sunday, 09 June 2019 12:00 |
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Grim writes: "As vice-president, Joe Biden repeatedly sought to undermine the Affordable Care Act's contraception mandate, working in alliance with the U.S. Conference of Catholic Bishops to push for a broad exemption that would have left millions of women without coverage."
Vice President Joe Biden answers questions at Central Bucks High School West in Doylestown, Pa., on Jan. 13, 2012. (photo: Alex Brandon/AP)
Joe Biden Worked to Undermine the Affordable Care Act's Coverage of Contraception
By Ryan Grim, The Intercept
09 June 19
 s vice president, Joe Biden repeatedly sought to undermine the Affordable Care Act’s contraception mandate, working in alliance with the U.S. Conference of Catholic Bishops to push for a broad exemption that would have left millions of women without coverage.
Biden’s battle over contraception is a window into his approach to the politics of reproductive freedom, a function of an electoral worldview that centers working-class Catholic men over the interests of women. The issue has been causing his presidential campaign some discomfort — on Wednesday, Biden’s campaign clarified that he remains a supporter of the so-called Hyde Amendment, a provision that bars federal money from being used to fund reproductive health services. Biden had recently told an activist with the American Civil Liberties Union that he opposed the amendment, and wanted to see it repealed.
On contraception, according to contemporaneous reporting and sources involved with the internal debate, Biden had argued that if the regulations implementing the Affordable Care Act were going to mandate coverage, it would have angered white, male, Catholic voters, and threatened Barack Obama’s re-election in 2012. Biden’s main ally in the internal fight over contraception was chief of staff William Daly; both men are Catholic.
Opposing Biden was a faction of mostly women advisers, joined by some men, who argued that Biden had both the policy and the politics wrong. On policy, they noted that if his broad exemption went into effect, upwards of 6 million women who happened to be employed by religious-affiliated organizations would lose contraception coverage. The politics were just as bad, they argued, given that women were increasingly becoming central to the party’s success. To turn on them on the issue of access to birth control — embracing a fringe position not even adopted by most Catholics who aren’t bishops — would put that support at risk.
Biden has long said that he is personally opposed to abortion, but supports the legal right. His support of Roe v. Wade has not always been full-throated.
“When it comes to issues like abortion, amnesty, and acid, I’m about as liberal as your grandmother,” Biden said in a June 1974 article. “I don’t like the Supreme Court decision on abortion. I think it went too far. I don’t think that a woman has the sole right to say what should happen to her body.”
Because Biden’s anti-Roe comments came so long ago — more than four decades — some have argued they are of little value in gauging his current politics. But his battle against contraception, and his unwillingness to join the bulk of the Democratic field and call for the repeal of the Hyde Amendment, puts him dramatically out of step with today’s party.
Biden is so out of step, in fact, that when he was shown polling data during the contraception fight, he dismissed it as inaccurate. He has a view of the American electorate’s politics on abortion that can’t be influenced by new facts. Jake Tapper, then reporting for ABC News, reported in February 2012:
The two sides couldn’t even agree about what they were debating. In the fall, [Planned Parenthood head Cecile] Richards brought in polling indicating that the American people overwhelmingly supported the birth control benefit in health insurance. She also highlighted statistics showing the overwhelming use of birth control.
The Vice President and others argued that this wouldn’t be seen as an issue of contraception — it would be seen as an issue of religious liberty. They questioned the polling of the rule advocates, arguing that it didn’t explain the issue in full, it ignored the question of what religious groups should have to pay for. And they argued that women voters for whom this was an important issue weren’t likely to vote for Mitt Romney, who has drawn a strong anti-abortion line as a presidential candidate, saying he would end federal funding to Planned Parenthood and supporting a “personhood” amendment that defines life as beginning at the moment of fertilization.
Similarly, Mike Dorning and Margaret Talev reported, “Vice President Joe Biden and then-White House chief of staff Bill Daley, also Catholics, warned that the mandate would be seen as a government intrusion on religious institutions. Even moderate Catholic voters in battleground states might be alienated, they warned, according to the people familiar with the discussions.”
It was ultimately public anger that led to Biden and Daley’s defeat on the issue. On January 31, 2012, as the administration was finalizing its policy, it was reported that Susan G. Komen for the Cure had cut its funding of Planned Parenthood, in a push led by abortion foe Karen Handel. The fury over the decision stunned the organization, which backtracked and apologized within a week, as Planned Parenthood raised hundreds of thousands of dollars from angered supporters of abortion rights. “We want to apologize to the American public for recent decisions that cast doubt upon our commitment to our mission of saving women’s lives,” Komen said in a statement on February 3, 2012.
The White House watched the affair unfold closely, and the blowback punctured the mythology that there is no real public support for abortion rights. It also sent a signal that if the White House backtracked on access to contraception, it could expect a livid response. The exemption that was ultimately granted, on February 10, was a very narrow one, frustrating the bishops.
In his vice presidential debate with Mitt Romney’s running mate, Paul Ryan, Biden attempted to portray it as a broad exemption. “No religious institution — Catholic or otherwise, including Catholic social services, Georgetown hospital, Mercy hospital, any hospital — none has to either refer contraception, none has to pay for contraception, none has to be a vehicle to get contraception in any insurance policy they provide. That is a fact,” Biden said in the debate.
In a rare public disagreement with Biden, the U.S. Conference of Catholic Bishops shot back with a statement, accurately saying that Biden’s claim was “not a fact.” Indeed, many religious-affiliated entities that had hoped to win an exemption, and which had Biden’s support inside the White House, had failed. But with Biden now a frontrunner for the Democratic nomination for president, they may get another shot at denying access to contraception to their employees.
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FOCUS: Facebook Purges Are More Extensive Than You Think |
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Sunday, 09 June 2019 10:55 |
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Taibbi writes: "While there's an argument to be had about clamping down on the purveyors of hate speech, what social or journalistic purpose is served by concealing the existence of such people?"
Right-wing hate speech on YouTube. (photo: Daily Beast)
Facebook Purges Are More Extensive Than You Think
By Matt Taibbi, Rolling Stone
09 June 19
Legitimate journalists are again being caught in the wash of internet cleanups
 f you turned on cable news this week, or read our own coverage in Rolling Stone, you might have heard about YouTube’s decision to demonetize well-known conservative commentator Steven Crowder.
Crowder’s offense involved calling Vox journalist Carlos Maza a “lispy queer” and a “gay Vox sprite,” leading, says Maza, to further harassment. Much press commentary either cheered YouTube’s move or called it belated.
Simultaneously, YouTube announced it would ban whole genres of videos that fell under a hate/conspiracy label. From a Yahoo news summary:
“YouTube announced Wednesday it would ban videos promoting or glorifying racism and discrimination as well as those denying well-documented violent events, like the Holocaust or the Sandy Hook elementary school shooting.”
Yahoo quoted a YouTube announcement:
“Channels that repeatedly brush up against our hate speech policies will be suspended under our YouTube Partner Program.”
Many greeted these stories with a shrug. If blue-state audiences even know who Steven Crowder is, they think he’s a jerk. And what could be wrong with removing videos “denying well-documented violent events”?
At least two big things, as it turns out:
1. Platforms may not distinguish between reporting on hate speech, and promoting it
A site called News2Share, run by journalist Ford Fischer, was removed by YouTube this week under the new plan. Fischer received a notice:
“We found that a significant portion of your channel is not in line with our YouTube Partner Program policies.”
Fischer was one of the first people I spoke with for a Rolling Stone story about Internet censorship published last year. His site acts as a kind of clearing house for political footage of all kinds, including demonstrations, marches, police misconduct and even flash mobs.
News2Share content spans the spectrum: the site currently contains everything from a protest against the “Barr Coverup” of the Mueller report, to pro-Assange protests in Britain, to a square-off between gun militias and Antifa in Ohio.
It’s valuable, original journalism, not aggregated clickbait.
“Almost the entire channel is video shot by me, or someone I hire,” Fischer says.
Two videos apparently determined his fate under the new program. One involved a pro-Israel activist and pro-Palestine activist arguing with a Holocaust denier. The second was video of a speech given by white nationalist Mike “Enoch” Peinovich.
Fischer says that “while unpleasant,” the footage is “essential research for history.” It was even used as part of a PBS documentary called “Charlottesville.” Fischer was listed as an executive producer in the film.
His work regularly appears in documentaries about subcultures of all types, including the Frontline series “Documenting Hate” (you can see him credited just above Getty Images at the end). Fischer’s videos have even appeared in Vox.
Now his work has been removed because the new policy does not distinguish between showing a Holocaust denier or a white supremacist, and being one. Fischer describes the first video that got him in trouble, which showed Antifa protesters arguing with a Holocaust denier: “While it’s true that the Holocaust denier says Holocaust-denier stuff,” he says, “this is raw vid documenting him being shut down.”
Being demonetized on YouTube will deal a blow to Fischer’s business. He says YouTube ad revenue is “about half of my reliable, baseline income,” the rest coming from Patreon.
The Fischer case speaks to the inherent inanity of asking nameless, faceless Silicon Valley overlords to weigh things like journalistic intent. While there’s an argument to be had about clamping down on the purveyors of hate speech, what social or journalistic purpose is served by concealing the existence of such people? And what possible rationale could there be for allowing PBS or a commercial news network to publish such videos, but not smaller shooters like Fischer?
As part of the new program, YouTube also pulled down a video published by the Southern Poverty Law Center. In it, journalist Max Blumenthal interviewed Holocaust denier David Irving. Blumenthal quickly said the removal program had “gone beyond its stated aim” to “carpet-bombing style censorship.”
Blumenthal, like many of the people targeted in removal campaigns, is a controversial figure who has been a consistent critic of U.S. policy. He worried that such deletions are “just a test balloon for a much wider campaign to suppress content by dissenting voices.”
YouTube in his case seemed to acknowledge throwing the baby out with bathwater.
“We know that this might be disappointing,” it told the L.A. Times, “but it’s important to us that YouTube is a safe place for all.”
YouTube has not responded to a request for comment about why Fischer remains removed.
2. Internet platforms have neither the ability nor the resources to sort out good reporting from bad — and may even perpetuate the latter
On May 28th, the New York Times ran a piece by Choe Sang-Hun that talked about tourists in South Korea now being allowed to visit sites of atrocities perpetuated under past dictatorial rule. In particular, the piece mentioned tour groups being able to visit Jeju Island, where 30,000 people lost their lives. The Times wrote:
“These so-called ‘dark tours’ reflect a growing freedom under the government of President Moon Jae-in to revisit the abuses perpetrated when South Korea was governed under a dictatorship…”
Investigative reporter Tim Shorrock, frequently published in The Nation, found the article a mixed bag. Well-known among other things as an Asia expert (he was raised in Japan and Korea) and an iconoclastic exposer of intelligence community misbehavior, Shorrock was bothered by the Times failing to mention the American role in Jeju atrocities.
He posted a series of tweets that included photos from a museum at Jeju, exhibits that included the headline, “U.S. Military Decides on Tough Crackdown Operation.” Shorrock wrote:
“This is what you see at the Jeju museum: photos and documentation of US military officers overseeing the brutal crackdown, which took place when South Korea was ruled by the US military government. Why no mention of this, NYT?”
When Shorrock recently posted this same content on Facebook, it was removed. He had no idea why. He was told only that his posts “violated community standards.”
“I’ve asked for an appeal but have not heard back,” Shorrock said early Friday. “The post remains down and people on FB cannot link to it when it’s been reposted by me and others.”
Shorrock is familiar and respected in the journalistic community. He often takes tough stances on other reporters and has been critical of outlets like MSNBC for a variety of reasons, usually having to do with failing to question American foreign policy. His comments may be uncomfortable to some, but they don’t cross lines.
“What’s astonishing to me is that my post is a critique of a newspaper’s coverage and uses no inflammatory or crude language,” he says.
On Friday afternoon, in response to a query by Rolling Stone, a Facebook spokesperson said the issue had been corrected:
“We mistakenly removed a post for violating our spam policy but this decision was appealed and we identified our error. The post has since been restored to Facebook because it does not violate our Community Standards.”
Despite the fix, Facebook at press time still hadn’t contacted Shorrock (and the post still wasn’t up). “So far, no response to me,” he said. “They didn’t act until press asked.”
Is this algorithmic error or something else? The opacity of the platforms’ review systems makes it impossible to know.
What happened to Shorrock highlights another problem: the biggest deniers of “well-documented violent events” are often not small-time conspiracy theorists, but governments, especially our own. Moreover, some of the worst spreaders of conspiratorial news are not Twitter geeks, but America’s biggest media organizations. Moreover, some of the worst spreaders of conspiratorial news are not little Twitter geeks, but America’s biggest media organizations.
In late May, Shorrock was one of just a few reporters who cried foul when mainstream news outlets made what may have been a serious factual error.
Beginning with Bloomberg on May 30th, and including the Daily Beast, the Wall Street Journal and a long list of other major Western outlets, it was reported that North Korean official Kim Hyok Chol — who headlined a group of nuclear arms negotiators who met with Trump officials last year — was “executed” as part of a “purge of officials.”
The story was based upon a single unnamed source in the South Korean newspaper Chosun Ilbo.
A few days later, Chol was supposedly seen with Kim Jong Un and his wife at an “amateur art performance.” This was according to North Korean media. Multiple news outlets have since reported the development, including Reuters, the Times, and the Washington Post. The Post headline read: “The rumor of Kim Jong Un’s purge: Why it matters even if it’s wrong.”
The Post led off by pointing the finger not at big news organizations, but “social media,” which it said “was ablaze last week with reports” about the purges. The paper noted that a mistake would be unfortunate, but, “even a false purge story doesn’t justify ignoring the larger trend in North Korea’s authoritarian regime.”
It’s worth pointing out that nothing seems to have been proven one way or another in this tale. Still, Shorrock’s original comment on Twitter — which criticized Bloomberg for running a report based on one unnamed source in a paper he said has a “history of false stories” — seems salient. What happens when mainstream platforms get things wrong en masse? Do small-timers get yanked, while big organizations get to make mistakes?
From WMD to inaccurate reports about drone strikes to things like the attitude of South Koreans toward a peace process, the most troublingly conspiratorial reporting often comes with an official imprimatur. A frequent theme is overhype of villainous news about targets of American “regime change” plans. Especially if people believe “fake news” is being carefully rooted out, they will now be even more susceptible to such official deceptions.
This speech-regulation issue — with its vast potential for misuse — is bigger than Alex Jones or Stephen Crowder. This is Brave New World territory, and people should realize that a few deletions here and there could quickly snowball into something far worse, if it hasn’t already.
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Reflections on Robert Mueller |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=45295"><span class="small">Bob Bauer, Lawfare</span></a>
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Sunday, 09 June 2019 08:46 |
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Bauer writes: "Robert Mueller must have known that he was having serious trouble with his public when New York Times columnist Gail Collins suggested he might be a wimp."
Former FBI director Robert Mueller. (photo: Getty Images)
Reflections on Robert Mueller
By Bob Bauer, Lawfare
09 June 19
 obert Mueller must have known that he was having serious trouble with his public when New York Times columnist Gail Collins suggested he might be a wimp. When Mueller was appointed special counsel, Collins was satisfied that he was “a very serious choice” for the role; last week she mused that while “a lot of us thought he’d wind up as a chapter in the history books of the future,” he may qualify now for no more than “an asterisk.” Others commented more in sorrow than in anger. In a Times op-ed, Robert De Niro even stepped outside his “Saturday Night Live” portrayal of Mueller to implore him to speak out more forcefully. Overall, there was evidence of smashed hope, as in this headline: “Disappointed Fans of Mueller Rethink the Pedestal They Built for Him.”
Now Democrats, progressives and others horrified by Donald Trump have come to at least this agreement with the president: There are problems with the way Mueller did his job. Republicans were first, and quick, to sour on the special counsel. The president they chose to follow pounded away at the illegitimacy of the investigation, alleged partisan bias in its conduct, and concocted zany theories of personal conflicts of interest that disqualified Mueller from holding the position. For entirely different reasons, and expressed far less virulently, the other side of the aisle has begun to join the crowd of Mueller critics.
It has been a steep fall for Mueller, the straight-arrow law enforcement professional known and much admired for going “by the book.” His background, history of service and reputation had made his appointment especially compelling. In 2011, when Congress extended his FBI director term by two years, the Senate vote was unanimous. Congressional leaders made clear that it had not lightly made the exception to the 10-year limit for the position; but Mueller—then described in news reports as “widely respected by lawmakers on both sides of the aisle”—was deemed a good reason to do it.
Then, when Mueller was appointed as special counsel, USA Today advised its readers that “a Congress utterly fractured by partisan bickering came to rare bipartisan agreement … as members of both parties effusively praised the selection of former FBI director Robert Mueller.” Jason Chaffetz, a reliable Republican congressional warrior, pronounced it a “great selection,” one that should be “widely accepted.” Even Freedom Caucus Chair Mark Meadows, noting that Mueller credibility might be greater with Democrats than Republicans, offered that “he has credibility on both sides.”
In these polarized times, many imagined that, drawing on his well-earned reputation, Mueller could take on this extraordinary assignment in a deeply divided political environment and pull it off. He would, because he was Bob Mueller, get the benefit of the doubt on the hard calls.
But playing by the book did not at all times appear adequate to the task. To be the straight arrow was both a blessing and a curse, the reason for the disappointment as well as the original, warm welcome. In the Russia investigation, Mueller was under pressure to enforce not just the law but also norms of appropriate presidential conduct; to stand up for the rules but, if necessary, break new legal ground; to vindicate regular order when the president and key associates at the center of his inquiry hold regular order in contempt.
Many of those who cheered his arrival and supported him in his mission had little use for a “by the book” conservative approach, believing that he was operating under emergency conditions. This was a case, after all, about a president charged with colluding with a foreign power to win an election; a president who felt free to throw up one obstacle after another to accountability. Commentators calling for aggressive prosecution counseled Mueller to find ways around the limitations imposed by the special counsel rules. He was urged to steer around the Office of Legal Counsel (OLC) opinion prohibiting the indictment of a sitting president. He was exhorted to find ways to inform congressional impeachment deliberations, via a “road map” or otherwise, when, under the special counsel rules, he lacked the authorization formerly given to independent counsels to identify potentially impeachable offenses and was limited to communicating on confidential terms with the attorney general.
In many respects, Mueller held his familiar ground, going by the book. Unlike Independent Counsel Kenneth Starr, he stayed out of the press, eschewing leaks and tit-for-tat exchanges through spokespersons with the ceaselessly bellicose Trump and his lawyers. He was conservative in much of his reading of the law—such as, at least in my view, the punches he pulled in the campaign finance analysis of the Trump campaign’s engagement with the Russian government. He not only accepted that he was bound by the OLC opinions immunizing the president from prosecution, but he also read them, surprisingly (again, in my view, mistakenly), as preventing him from expressing even a conclusion about the legality of the president’s obstructive conduct. He took a sort of institutional high road, arguing that an unindictable president should not be confronted with a legal finding he could not challenge in a formal legal proceeding. He did not force the issue of the sit-down interview Trump rejected, apparently weighing its possibly limited value against the extended delay and uncertainties, and possibly even further disruption to government, entailed by protracted litigation.
Yet Mueller also improvised, apparently concluding that he had to depart in some respects from the most conservative editions of the “book.” The report he wrote was not a simple statement of the reasons his office pursued or declined prosecutions, which seems more like what the special counsel rules contemplated. He turned out an opus, packed with detail, which he surely understood—and, by his own account, hoped—would see the light of day, as it did. While he declined to make a “traditional prosecutorial judgment” about obstruction, he staked out aggressive, controversial ground on the theory of presidential liability for this offense and then indulged in un-Mueller-like commentary in explicitly refusing to “exonerate” Trump. He wrote a letter to the attorney general to protect his four-page summary of the report knowing that this, too, would become public, even though the rules commit all questions of publication or public commentary to the attorney general.
In the end, Mueller was hardly as free-wheeling as a Comey, but he was not the purest version of the straight arrow. One could imagine a range of choices far more self-limiting, more conservative in approach and theory, than the ones he made. He worked with the materials at hand and within challenging conditions: the OLC opinions, certain of the limitations of the special counsel rules, the outrageous behaviors of a president that tested the boundaries of established law and norms, the unprecedented nature of a number of the legal issues. To navigate this treacherous course, with all the intense expectations, Mueller eventually pushed the boundaries.
It would not be enough for some critics and far too much for others. If too much the straight arrow, he would risk being a chump, failing to rise to the demands of the moment. If not enough the straight arrow, he would put at risk the credibility, accumulated over the course of an exceptionally distinguished career, that prompted his well-received appointment.
Of course, the disposition, or suspended judgments, affecting Trump personally does not tell the whole tale of Mueller’s work. In two years, he secured indictments, convictions or pleas from 34 individuals and three companies. His prosecutions included Trump’s former campaign manager and his national security adviser but also members of Russian military intelligence and individuals with clear ties to the Kremlin. He sent an unambiguous message to Moscow. He did so in less than two years.
But there was little chance that Mueller would end his investigation to the bipartisan acclaim that greeted his appointment. This era is not one with much room for the hero who can overcome the pervasive partisanship; it is one in which the legitimacy of a process is judged primarily by its outcome. American political culture is not especially kind to the straight arrow right now. In principle, a special or independent counsel is an outstanding lawyer with a record of impartiality and fairness who has earned the public’s confidence and will keep it. In the politics of the day, a law enforcement professional like Mueller who might have been celebrated as having “near mythic” status will not enjoy it for long.
Did Mueller make mistakes? Democrats and Republicans are increasingly united in the belief that he did. First-rate scholars have argued a range of failures, including Richard Pildes’s contention that Mueller abdicated a “core responsibility” in declining to reach a judgment on obstruction of justice and Jack Goldsmith’s argument that the Mueller report misapplied the law governing a president’s exposure to liability for obstruction..
Perhaps it is inevitable that by one standard or another, given the choices he faced, Mueller would make mistakes or misjudgments, or leave himself exposed to the charge. The most that can be hoped of someone in Mueller’s position is that if he makes mistakes, it will be apparent that he erred in good faith, not for condemnable lack of judgment, independence or courage—and that had another been appointed instead, that special counsel would have done no better and, in all likelihood, far worse.
And now, at the end, we have the squall over his wish to have his report speak for him without further comment or congressional testimony. In this sense, he is one more time going by the book—the one he wrote, online and in bookstores around the country, still number one on the New York Times bestseller list.
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