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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)
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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+10 # HarryP 2019-06-09 10:03
There’s an error (in the 8th paragraph from the bottom), which says that Mueller “wrote a letter to the attorney general to protect his [Barr’s] four-page summary of the [Mueller] report....”

Mueller wrote his letter to “protest” - not “protect” - Barr’s summary.

Spell-check was unable to catch the error.
+10 # lfeuille 2019-06-09 13:23
When you have a message that so many Republicans and Democratic cowards don't want to hear you have to be very explicit or they will contrive to misunderstand. The Watergate prosecutor did a better job by having the grand jury name Nixon as an unindicted co-conspirator. That leaves no room for misunderstandin g and no need to keep explaining yourself. I don't understand why Mueller didn't follow that precedent.
-1 # Rodion Raskolnikov 2019-06-10 06:41
ife -- " I don't understand why Mueller didn't follow that precedent."

I think in his farewell address, Mueller was very clear. His goal was never to impeach or indict Trump. He knew from day one that both of those were outside of his powers, and that the allegations against Trump were false (Strzok told him that).

He said very clearly, his real target was Russia, and to turn Americans against Russia because Russia intervened in the 2016 election.

In this sense, Mueller has been very successful. He has played a key role in the generation of the New Cold War and in making US major media into Russia hating tabloids. He has also badgered Trump and bullied him right into the arms of the neo-cons.

As things stand now, there is no point in impeaching Trump. He's doing just exactly what the neo-cons want him to do. Mission accomplished. Time to go home.

He also said that Starr was not his role model.
+1 # HarryP 2019-06-11 18:31

Bet you five rubles you don’t have evidence that Strzok told Mueller that the “allegation against Trump were false.”

What you got from Fox News, The Daily Caller, Russia Today, etc. doesn’t count.
-2 # Rodion Raskolnikov 2019-06-12 07:29
This story has been reported many times. Here is just one --

"Sen. Ron Johnson calls attention to what he calls a “jaw droping” text message from Peter Strzok to Lisa Page. The message, dated May 17, 2017, reads:

"You and I both know the odds are nothing. If I thought it was likely, I’d be there no question. I hesitate in part because of my gut sense and concern that there’s no big there there."

What was Strzok talking about when he said “there’s no big there there.” According to Sen. Johnson, he was talking about alleged collusion between Donald Trump and Russia. Where was it that Strzok would be “no question” if there were a big there there. According to Johnson, he was talking about Robert Mueller’s team.

In other words, Strzok had reservations about joining Mueller’s team (although ultimately he did join) because he doubted there was anything significant to the claim that Trump colluded with Russia."

Strzok and Mueller knew each other well since Strzok was head of counterintellig ence for the FBI, right under Mueller for 13 years. Strzok headed the Trump Russia investigation that began in June 2016. So he'd been on this investigation for almost a year when Mueller was appointed. It was Strzok's investigation that morphed into the Mueller Probe.

The inference I make is that Mueller must have known what Strzok knew. They must have talked.

I conclude, Mueller made up things to support a thesis he knew was false from the very start.
0 # HarryP 2019-06-13 10:08

Thanks for your reply, another bit of testimony of how you deal with the issue. You begin by citing a source without telling us it came from “Russia Today.”

Then you write that Mueller and Strzok “must have talked.” That’s your evidence? Both were in the FBI and thus they shoulda, coulda, mighta talked and you know the nature of their conversation.

As for Strzok’s statement, he made it on May 17, 2017. By that time, the FBI/Strzok knew of Papadopoulos’s meeting with Russians and of the Russian overtures to the Trump campaign. But what, at that time, did Strzok know of the Trump Tower meeting, Manafort’s dealings with Russians, the activities of the IRA and GRU, Russian agents operating in the US with fake identities, Maria Butina, etc.?

If you want the answer to these questions, please go to the Mueller report, volume I. Mueller certainly did not conclude (a la Strzok) there was “no there there.”

Turns out that only yesterday, Trump announced he would do it again. Mueller’s lack of resolve is now biting him in the ass.

As for the five rubles you owe me, please send them to RSN next time you make a contribution.
0 # Rodion Raskolnikov 2019-06-09 18:41
I think it is rather that the media was drunk on the euphoria of a Mueller take down of Trump. The media and its followers were so euphoric that they just could not see the short-comings built into the Probe from the start. That blindness has now turned to bitterness against Mueller, the white knight who has now become the wimping weasel.

It is better to look at the Mueller Probe more realistically. It was never about a legitimate investigation. There never was any Russian interference in the 2016 election. There was never any collusion between the Trump campaign and Russians. YOu can't run a legitimate investigation when there were never any crimes to investigate.

Mueller was appointed by Comey and Rosenstein -- not among the brightest people around. They wanted a cover up and they did not even get that.

Well, he's now gone. It is best to forget him and get back to the serious work of governing or since Trump is still in the white house governing as damage control .
+1 # johnescher 2019-06-11 12:04
Quoting Rodion Raskolnikov:
There never was any Russian interference in the 2016 election.

Robert S. Mueller, III, says there was-- and a lot. One of you is wrong.
0 # Rodion Raskolnikov 2019-06-12 07:41
j.e. -- I say Mueller is wrong and I'm right. Mueller's Russian theory depends on three claims:

1. The Internet Research Agency posted adverts in US social media that supported Trump and denigrated Hillary. This claim has been refuted conclusively, esp by Gareth Porter, "33 Trillion More Reasons Why The New York Times Gets it Wrong on Russia-gate."

2. The Russian GRU stole the DNC/Podesta emails and gave them to WikiLeaks to publish. This has been refuted by Bill Binney and the Veterans Intelligence Professionals for Sanity. It was physically impossible that the emails were transmitted over the internet. They were downloaded from the server to a flash drive or some other plug in device.

3. Russian agents had many contacts with members of the Trump campaign. All Russians who had contact with Trump campaign were set up by the CIA or MI6. Joseph Mifsud was not a Russian operative, but rather worked for MI6 and the CIA. Constantin Kilminick was not connected to Russian oligarchs but to the US State Department (Clinton and Nuland) and Ukrainian oligarchs. Veselnikskaya was set up by Glenn Simpson working for the Clinton campaign.

Nothing that Mueller has written stands up to cross examination. That's why he filed ZERO lawsuits against Americans for Russian conspiracy. The two suits he filed against Russians will never come to court. The are "speaking indictments," to tell a story only.

Case closed.
0 # Rodion Raskolnikov 2019-06-11 05:18
This is a very good commentary on the Mueller Report. It derives from the recent article by John Solomon in The Hill in which he reports on the misrepresentati on in the Mueller report of Kliminick, a Manafort associate who was not a Russian oligarch operative but rather a US state department asset in contact with Ukranian oligarchs. Mueller was protecting the Ukranian operations in the 2016 election by making it appear it was Russian.
0 # johnescher 2019-06-11 14:31
Quoting Rodion Raskolnikov:
This is a very good commentary on the Mueller Report. It derives from the recent article by John Solomon in The Hill in which he reports on the misrepresentation in the Mueller report of Kliminick, a Manafort associate who was not a Russian oligarch operative but rather a US state department asset in contact with Ukranian oligarchs. Mueller was protecting the Ukranian operations in the 2016 election by making it appear it was Russian.

Is this supposed to be an answer to what I said?
-1 # Rodion Raskolnikov 2019-06-12 07:46
j.e., no. it is just something I ran across that was relevant to the general subject. It helps to show what a fraud the Mueller Report was. Another story like this comes out every week.

The Mueller report will go down along side the Warren Commission Report, the 9-11 Commission Report, the MLK Assassination Report and all the rest that are more cover ups of what the US intel agencies did than anything.

See Harleysch below. He adds a lot to this discussion.

Mueller was FBI director from 2002 to 2013. He personally knew Mifsud, Carter Page, Sater, Kilminick, Halper, Steele, and many other people who were FBI informants now morphed into Trump campaign Russian assets. Mueller knows the truth but the did not write it.
0 # HarryP 2019-06-13 16:49

This what you get in a discussion with Rodion.

You write that the Mueller report documented Russian intervention. He replies that Mueller was wrong and cites an article (“33 Trillion Reasons....) on how the New York Times got the story wrong. He then declares Kilimnik and Veselnetskaya to be US agents (never mind that Veselnetskaya admitted to be working for the Russian government and had been sent by Yuri Chaika, Russia’s chief law enforcement officer.)

After his sing and dance, Rodion concludes the Russians to be innocent, followed by “case closed.” This from someone who calls himself an “intellectual.”
-1 # harleysch 2019-06-11 15:42
Kliminick is one case of Mueller lying about alleged Russian agents. Felix Sater is another, and Mueller should know this because it was his top prosecutor, Weissman, who made the deal turning Sater from a convicted felon to an FBI operative. Josef Mifsud is another prime case -- not a "Russian," aqs asserted by Mueller, but a shared asset of FBI/CIA and MI6.

Mueller also never proved "Russian hacking", relying on CrowdStrike and CIA/FBI stories. Why did he never interview Bill Binney, former NSA Tech Director, whose forensic study reveals the DNC-Podesta emails were downloaded as an "inside job", not hacked by Russians?

There is much more one could say about Mueller, from his cover-up of the Saudi role in 9/11 to his assertion in Congressional testimony that there is no doubt that Saddam has WMDs.

The real story of Mueller is available. The mainstream media and the anti-Trumpers chose instead to believe the fable of the square-jawed straight shooter -- and now you are disappointed that he didn't "Get Trump."

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