Robert Mueller Didn't Finish the Job, and We'll Never Know Why

By Elie Mystal, Above the Law

19 April 19

The Mueller report treats Trump and his family with kid gloves.

f you ever have the opportunity to choose who will prosecute you for you potential crimes, ask to be prosecuted by Robert Mueller. Apparently, he will spend half of his time making your legal arguments for you, and will not try to secure your testimony under oath if it looks like you’ll give him too much trouble.

I have read through (well, scrolled through) the entire Mueller report, and I am deeply dissatisfied with the thoroughness of Mueller’s investigation. Yes, yes, I know, I’m supposed to parrot the line about how “thorough” this investigation was because… it took a lot of time and the report is very long. Big whoop. For all the time spent on it, and the obvious meticulous dedication to the cause, Mueller did not finish the job. Maybe he was pressured by new Attorney General William Barr. Maybe the constant drumbeat of “wrap it up” coming from the Trump administration wore him down. Maybe we’ll never know. But the 22-month investigation into Russian interference in the 2016 election and President Donald Trump’s potential obstruction of justice punted investigative functions to Congress that his office should have completed before turning over his report.

And that’s because Mueller declined to seek subpoenas to compel testimony from Donald Trump, Donald Trump Jr., Jared Kushner, Ivanka Trump, or Eric Trump. Mueller was willing to put the screws to everybody else. Paul Manafort is in jail; Michael Cohen is going to jail. Michael Flynn is going to jail; Robert Gates is going to jail; Roger Stone will most likely be going to jail. Many of these people are going to jail because they lied to Robert Mueller. But the First Family is not going to jail. And it’s not because they are innocent. It’s because Mueller refused to ask them a damned question.

As has been widely understood — and now confirmed with the release of the report — Mueller made the decision that his office did not have the authority to charge President Donald Trump with a crime. That’s… a questionable legal conclusion. I can more or less accept it on the issue of conspiracy with Russia to influence the election. But when it comes to obstruction of justice, I just can’t. Literally, what is the point of having an “independent,” “non-political” appointee conduct an investigation into the President if only political appointees and elected officials can actually do anything about it? It’s like hiring a restaurant critic who isn’t allowed to eat the food.

Fine. Whatever. It is what it is. Given Mueller’s legal conclusion, his only use then was to put together information that would allow political appointees and Congress to make their own determination on how to proceed. If your charge is to investigate the Trump campaign’s actions, then how in the hell can you conduct that investigation without at least attempting to interview the people who were in charge of Trump’s campaign? Yes, Mueller did try to secure testimony from Paul Manafort and Corey Lewandowski and Steve Bannon and Hope Hicks and any number of hangers-on and sycophants that Trump surrounded himself with. But, the people in charge of Trump’s operations have always been Trump, his adult children, and his son-in-law.

Mueller didn’t say “boo” to those people. And that means his investigation is, at best, incomplete, if not an actual failure. The report is divided into two parts and the parts on Russian interference show that time and time again, Russian officials sought access to Don Jr., Jared Kushner, and Ivanka Trump. Some of the people who were charged with crimes, like Michael Cohen, told Mueller that their interactions were primarily through one of Trump’s family members. And there is no Department of Justice convention that I’m aware of that says the FAMILY of a sitting president cannot be charged with a crime.

But Mueller didn’t interview them, didn’t subpoena them, and didn’t look like he even tried. The issue of Don Jr., in particular, is infuriating. The June 9th meeting at Trump Tower — the one to collect “dirt” on Hillary Clinton where Don Jr. said “if it’s what you say I love it” — was the subject of much discussion in the report. This meeting was organized by Don Jr., and roped in Jared Kushner. Later Donald Trump would lie about the meeting, dictating a false statement about it that he forced Don Jr. to issue. This meeting is one of the clearest indications we have that the Trump campaign generally and Don Jr. specifically were willing to work with the Russians to win the election. But Mueller declined to pursue Don Jr. The report explains:

I’m amenable to the argument that Don Jr. is too stupid to have the necessary mens rea to commit crimes. I really am. Don Jr. is dumb. I believe that. But I don’t see how you can make that legal conclusion without putting Donald Trump Jr. under oath. I don’t see how you can make that legal conclusion without investigating him. I don’t see how you can make the legal conclusion without interviewing Jared Kushner, who was roped into the meeting at the behest of Don Jr. Maybe Don Jr. fights the subpoena all the way to the Supreme Court. Maybe he takes the Fifth Amendment and refuses to testify. Maybe he decides to testify and lies, like EVERYBODY ELSE who has been charged in connection with the Mueller probe, and you get at the truth that way. But this argument of “oh, it’s super hard to prove, so screw it” is just UNACCEPTABLE.

Maybe it’s Congress’s job to put Don Jr. under oath (again). But, again, if that’s the case then what the hell was the point of an independent investigation? Anything Democrats do against Don Jr. will be looked at as partisan. That doesn’t mean they shouldn’t do it, but it does mean that the chance at having this proceed along nonpartisan grounds has been lost. It’s been lost because Mueller decided to not make that part of his job.

The overview from the Russian conspiracy section is that the members of the Trump campaign were bumbling idiots, too addled to be working with the Russians to a criminally chargeable extent. Again, that’s an acceptable argument. But it’s hollow without interviewing the bumbling idiots actually in charge.

The overview from the obstruction of justice section is that Trump most definitely obstructed justice but Mueller doesn’t feel he has the authority to charge him. Make no mistake, the Mueller report does not say “no obstruction,” in fact it goes out of its way to say that it does not “exonerate” Trump on that charge.

But here again, Mueller’s decision to not secure Trump’s testimony under oath is frustrating and weak. Mueller said he very much sought an in-person interview with Trump, but Trump repeatedly refused (as of course, he should have). Mueller settled for written questions. The report now includes those written answers, and they show Trump (his lawyers really) saying “I don’t recall” some 37 times. The report itself calls Trump’s answers “inadequate” and unsatisfying.

AND YET MUELLER DID NOT SUBPOENA TRUMP. His argument, from the report:

I’m sorry, but that’s crap. Mueller is an honorable man and I don’t impugn malicious intent, but his argument here is freaking crap. The thought that Trump would fight too hard against a subpoena, or it would take too long for the legal process to play out, is not a sufficient reason to not attempt to secure testimony under oath. Again, who ELSE is supposed to secure Trump’s testimony? Congress? Then it becomes a partisan battle and not a legal one.

I can’t be sure, but I bet you 10 bucks that the redacted part of that passage is the grand jury asking for Trump to be brought before them to testify. I bet you that the grand jury asked Mueller to bring Trump before them, and Mueller declined to listen to them and issue the subpoena. Why? Why would he do that? I can only guess, but it sure looks like Mueller determined it would make him and his office look bad. If he had made the decision based solely on the “right thing to do,” the right thing to do would have been to gather as much testimony as possible from the person suspected of obstructing justice.

If you’ve decided to artificially limit your job to merely providing evidence of obstruction, instead of actually prosecuting obstruction, then you damn well better provide all the evidence you can… which would INCLUDE testimony from the most important player, Donald Trump.

I’m sorry, but this report is incomplete. It is not good enough. Not because it doesn’t reach conclusions I would have liked it to reach, but because it does not investigate the principle actors thoroughly.

Mueller clearly wants Congress to finish the job. But he should have finished his job first.