Did Robert Mueller abdicate his duty to make a charging determination?

White House Counsel Emmet Flood in a five-page letter to Attorney General William Barr dated April 19, took Special Counsel Robert Mueller to task for not making a charging determination (snippet):

[T]he SCO had only one job – to “provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel. [citation omitted] Yet the one thing the SCO was obligated to do is the very thing the SCO – intentionally and unapologetically – refused to do. The SCO made neither a prosecution decision nor adeclination decision on the obstruction question.

Attorney General William Barr in his testimony to the Senate Judiciary Committee last week also criticized Special Counsel Robert Mueller for refusing to make a charging determination about whether his Russia investigation showed that President Donald Trump committed an obstruction of justice offense. Attorney General William Barr criticizes special counsel Robert Mueller for not saying whether Trump obstructed justice:

During the Senate Judiciary Committee hearing Wednesday morning, Barr said that he believed the special counsel should have stated whether his 22-month probe found enough evidence to show whether Trump had committed an obstruction crime.

“I think if he felt that he should not go down the path of making a traditional prosecutive decision, then he should not have investigated,” Barr said.

“That was the time to pull up.”

In an op-ed in the Washington Post, David E. Kendall, who represented President Clinton during the independent counsel investigation led by Kenneth Starr, agrees writing that Mueller’s conclusion was a dereliction of his duty (excerpts):

[T]he failure to draw any conclusion on whether the president obstructed justice was a massive dereliction of the special counsel’s duty, and the report’s explanation of this failure is both incoherent and illogical.

The second volume of the report lays out the Mueller’s analysis of 10 instances of possible obstruction of the Russia probe by Trump. On four of these, Mueller concludes that there is “substantial” evidence to support a prosecution. But it draws no final conclusion, declaring instead that “difficult issues . . . prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”

It did not take long for Attorney General William P. Barr and Deputy Attorney General Rod J. Rosenstein to resolve those “difficult issues” and decree that the president did not obstruct justice.

This exoneration was made possible by a massive flinch: Mueller failed to follow Justice Department regulations, which say a special counsel “shall provide” the attorney general a confidential report “explaining the prosecution or declination decisions reached by the Special Counsel.” The special counsel is not authorized to bypass the required binary decision; he must decide to prosecute or not.

Mueller’s explanation for this flinch does not withstand scrutiny. He notes that the Justice Department’s Office of Legal Counsel (OLC) has held that a sitting president may not be criminally charged, but this was well known when he was appointed. Besides, the OLC ruling does not preclude alternative action when evidence of criminal conduct by the president is discovered, and there is clear precedent for such action: In 1973, the Watergate special prosecutor transmitted to Congress a “road map” of evidence developed in its investigation of President Richard M. Nixon, with the approval of the chief judge of the district court. It is no excuse to declare that a criminal charge would “potentially preempt constitutional processes for addressing presidential misconduct,” since Mueller could have submitted a similar “road map” without filing criminal charges.

The report’s contention that “fairness” would be violated by a prosecutorial accusation in circumstances where the president would have no “adversarial opportunity for public name-clearing before an impartial adjudicator” also rings hollow. The report proceeds to lay out nearly 150 pages of evidence of possible obstruction, concluding that much of it is “substantial.” Even with then-FBI director James B. Comey’s smear of Democratic presidential nominee Hillary Clinton in 2016, there was at least a clear determination that “no prosecutor” would have brought criminal charges under the circumstances.

Likewise, the fact that “difficult issues” are presented when determining whether criminal conduct occurred is no justification, since prosecutors frequently must resolve complex questions when determining whether to indict. Mueller was uniquely situated to make an informed judgment, since he had conducted a massive investigation, heard the witnesses and analyzed the evidence.

In fact, some of the four instances where Mueller found “substantial” evidence of obstruction do not actually appear “difficult” at all. For example, the report asserts that in June 2017, Trump met one-on-one with former aide Corey Lewandowski and instructed him to tell then-Attorney General Jeff Sessions that he would have to “unrecuse” himself to take charge of the Russia investigation and mandate that it would be limited to future election interference only. Trump allegedly directed Lewandowski to instruct Sessions to declare that Sessions knew “for a fact” that “there were no Russians involved with the campaign” because he “was there.” And Trump ordered Lewandowski to direct Sessions to explain that Trump should not be subjected to an investigation “because he hasn’t done anything wrong.” Lewandowski declined to make these requests, instead passing them to a current White House aide, who also declined. This is not a hard case. The conduct is more aggravated than that recorded on the “smoking gun” tape: Nixon’s 1972 direction that the CIA director tell the FBI that the Watergate investigation involved important national security matters and should not be pursued.

Mueller’s failure to come to a conclusion about obstruction is even more bizarre, since it analyzes at length the contention (espoused by Barr in a June 2018 memo, before he became attorney general) that a president cannot be guilty of obstruction when what is at issue is “facially lawful” presidential conduct, such as firing prosecutors or ordering criminal investigations terminated. Mueller demolishes this contention, concluding that overwhelming precedent supports the theory that “the obstruction-of-justice statutes can validly prohibit a President’s corrupt efforts to use his official powers to curtail, end, or interfere with an investigation.” Though the Mueller report said it was not exonerating the president, it left the coast clear for Barr to do just that.

In leaving Barr — who lacks the independence that the special counsel role was designed to preserve — to render judgment on the evidence and the law, Mueller abdicated his duty. Congress should now interview Mueller and his senior staff. Each of the 10 instances of possible obstruction should be reviewed and the following question asked and answered: Allowing for the differences between the president and a private citizen, had analogous conduct been engaged in by the citizen, would a grand jury indictment have been sought for obstruction of justice?

This would provide, albeit belatedly and bootlessly, a knowledgeable and neutral judgment on the president’s conduct during the Russia investigation.

Comedian Bill Maher excoriated Robert Mueller a couple of weeks ago in this “New Rule” segment, “Crime and No Punishment” (not safe for work).

“We needed Superman and we got Clark Kent.” “If Dostoevsky had written the Mueller Report, it would be called ‘Crime and No Punishment’.”

“Greatness sometimes means not doing everything ‘by the book’.” “All he had to do is what people in the justice system do every day, use the law to come to justice. Not be so restricted by technicalities that the bad guys win.”

“What good is leaving a roadmap for impeachment if you know a tribal ‘party before country’ Republican Senate will never remove the president? Bob, your trail of breadcrumbs isn’t good enough. We’re not that smart anymore.”

“To me this report is summed up in the words ‘Donald Trump, Jr. declined to be voluntarily interviewed.’ So make him. Was he too busy? You couldn’t work around his tweeting schedule? And you, tough guy, couldn’t get the president’s taxes? You didn’t ‘follow the money’? You didn’t interview Trump – we’re told – because he couldn’t possibly testify under oath without perjuring himself? And that’s our problem? It’s one feckless punt after another.”

“Rudy Giuliani this week said ‘There’s nothing wrong with taking information from Russians.’ That’s where we are now. I lay that on Mueller. From now on you can meet with foreign governments, invite them to hack your opponents, break campaign finance laws, as long as it’s by reason of ‘Duh, I’m plausibly too dumb to know what I was doing’.”

“For a guy who didn’t want to break precedent by indicting  president, Mueller sure created a lot of new precedents.” “You can’t indict a sitting president? It’s not in the Constitution, it’s not even a law. It’s a guideline.”

“In Watergate, the Special Prosecutor Leon Jaworski faced a similar guideline, but he understood the big picture, and his role in history. And he sued a sitting president anyway. Mueller coul have done that. And the headline the next day would have been ‘Mueller breaks with precedent, indicts Trump.’ And then that would be our new reality. And it would have been a better reality. Because now Trump goes into the election as a vindicated martyr, and hell hath no fury like a whiny little bitch scorned.”

“Maybe we should have brought back Ken Starr as prosecutor. At least he knew how to go after a dick in the oval office.”