I had to talk myself into responding to Charles C.W. Cooke because it’s exhausting to deal with these people. But some things just can’t go unanswered, so here goes. The premise of Cooke’s piece is that Robert Mueller treated the president unjustly by refusing to exonerate him despite the fact that he did not bring any charges against him. For some, like Jonathan Chait, this is a nonsensical objection since Mueller concluded that he could not charge the president with a crime. Cooke’s answer to this is twofold.
First, he disputes that Mueller concluded that he could not charge the president. To do this, he cites testimony that Attorney General William Barr delivered to the Senate Judiciary Committee (I’ve bolded the most relevant part):
“Now, we first heard that the special counsel’s decision not to decide the obstruction issue at the March 5th meeting when he came over to the department and we were frankly surprised that they were not going to reach a decision on obstruction. And we asked them a lot about the reasoning behind this and the basis for this. Special counsel Mueller stated three times to us in that meeting in response to our questioning that he emphatically was not saying that but for the OLP opinion he would have found obstruction. He said that in the future the facts of a case against a president might be such that a special counsel would recommend abandoning the OLC opinion but this is not such a case. We did not understand exactly why the special counsel was not reaching a decision.”
It’s true that William Barr gave this version of events to Congress. It’s also true that the Special Counsel and the Department of Justice issued a joint statement on Wednesday that read:
The Attorney General has previously stated that the Special Counsel repeatedly affirmed that he was not saying that, but for the OLC opinion, he would have found the President obstructed justice. The Special Counsel’s report and his statement today made clear that the office concluded it would not reach a determination — one way or the other — about whether the President committed a crime. There is no conflict between these statements.
Based on the fact that Barr testified that Mueller could envision a scenario in which he could have charged the president and that Mueller did not call Barr a liar in their joint statement, Cooke concludes that Mueller must not have charged the president because he didn’t have a case.
There are several problems with this but the biggest one is that the Mueller Report explains why he didn’t feel he could charge the president with a crime and that Mueller followed that up in person by explaining his rationale again during his brief press appearance.
The introduction to the Volume II of our report explains that decision. It explains that under longstanding department policy, a president cannot be charged with a federal crime while he is in office. That is unconstitutional. Even if the charge is kept under seal and hidden from public view, that, too, is prohibited. A special counsel’s office is part of the Department of Justice, and by regulation, it was bound by that department policy. Charging the president with a crime was therefore not an option we could consider.
He says that he could not consider it, but Barr says that he privately said he could consider it under different circumstances. Charles C.W. Cooke chooses to believe Barr on this point, but he does so by pretending he doesn’t have to disbelieve Mueller in order to reach that conclusion.
Cooke’s second approach is to dispute that Mueller meant to infer that crimes were committed by the president. This is an odd and difficult take for someone who wrote a whole column based on their outrage that Mueller had left that exact impression with the public. Nonetheless, he attempts to refute Chait by saying:
[Mueller] didn’t say that “Trump committed crimes”; Chait inferred it. And he didn’t say that “department policy prevents him from labeling those actions as crimes”; Chait inferred it. This being so, there’s no need for anyone to accuse Robert Mueller of being a “liar,” because there’s no need for anyone to accept Chait’s characterization of what Mueller said.
Let me start with the second point about department policy preventing Mueller from labeling Trump’s actions as crimes. Going back to the transcript of Mueller’s press appearance, I find this (again I have bolded the most relevant point):
First, the [Office of Legal Counel] opinion explicitly permits the investigation of a sitting president, because it is important to preserve evidence while memories are fresh and documents available. Among other things, that evidence could be used if there were co-conspirators who could be charged now.
And second, the opinion says that the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing. And beyond department policy, we were guided by principles of fairness. It would be unfair to potentially — it would be unfair to potentially accuse somebody of a crime when there can be no court resolution of the actual charge.
So that was Justice Department policy. Those were the principles under which we operated. And from them, we concluded that we would not reach a determination one way or the other about whether the president committed a crime. That is the office’s final position, and we will not comment on any other conclusions or hypotheticals about the president.
Now, there is admittedly a bit of ambiguity in what Mueller is saying there. It’s pretty clear that he is he saying that it’s the policy of the Department of Justice that Congress has the responsibility to “formally accuse a sitting president of wrongdoing.” On the other hand, he appears to be saying his office determined independently of formal department policy that a basic sense of fairness should preclude them from accusing the president of a crime in the absence of some formal process whereby he could defend himself. Taken together, however, the drivers of the decision-making process are not very murky. The OLC memo said he could not charge the president, so he could not charge the president.
This seems to undermine Mueller’s assent to the construction that he would not have charged a crime even in the absence of the OLC policy. But to make things a little clearer, we have to look at a couple of other things that Mueller said.
Does this sound like he thought the president obstructed his investigation?
The indictments allege, and the other activities in our report describe, efforts to interfere in our political system. They needed to be investigated and understood. And that is among the reasons why the Department of Justice established our office. That is also a reason we investigated efforts to obstruct the investigation. The matters we investigated were of paramount importance. It was critical for us to obtain full and accurate information from every person we questioned. When a subject of an investigation obstructs that investigation or lies to investigators, it strikes at the core of their government’s effort to find the truth and hold wrongdoers accountable.
He definitely makes it sound like someone obstructed, and when he later says that “if we had had confidence that the president clearly did not commit a crime, we would have said so,” he makes it obvious that the president is one of those people. At most, you could quibble that he only went so far as to express a lack of confidence that the president is innocent of the charge.
Cooke suggests that Chait and many other people are only inferring that Mueller felt constrained in labeling or charging crimes, but it’s much more than a mere inference.
Here’s how I put this debate in a tweet.
A less smart-ass way of rendering that is that Mueller was asked if he would have charged a crime in the absence of a policy that precluded him from charging a crime, and he basically said the policy precludes me from answering that question. I used this example to show how the joint Special Counsel/DOJ press release made no sense, but it gets to the heart of the confusion here.
Mueller is saying that the president cannot be accused of a crime and that it’s wrong to infer that he committed a crime. That’s for Congress to decide. Barr is saying that Mueller’s refusal to insinuate a crime in more explicit terms is a form of exoneration. But Mueller was willing to go so far as to say that he could not exonerate the president.
In the matter of a conspiracy, he only said that his case was obstructed and that he could not prove the case. In the matter of obstruction, he said he would have told us if he could have cleared the president. In other words, he could not.
This is how Cooke objects to Mueller’s actions:
That’s not how it works in America. Investigators are supposed to look for evidence that a crime was committed, and, if they don’t find enough to contend that a crime was a committed, they are supposed to say “We didn’t find enough to contend that a crime was committed.” They are not supposed to look for evidence that a crime was not committed and then say, “We couldn’t find evidence of innocence.”
But, again, Mueller followed Cooke’s prescription to a ‘T’ on the conspiracy charge. He said outright, “We didn’t find enough to contend that a crime was committed.” But it’s possible that the reason he couldn’t contend that is because his investigation was obstructed, and what he conspicuously did not do is clear the president of that charge.
To summarize: the Office of Special Counsel found evidence of crimes and they explained the evidence in a report. They took the position that they could not say one way or the other whether a sitting president was guilty and that it is Congress’s constitutional obligation to create a “process other than the criminal justice system to formally accuse a sitting president of wrongdoing.”
For some reason, people like Cooke are hung up on whether the OLC memo is the sole reason why Mueller took this position. It doesn’t seem relevant to me. Given the totality of what Mueller said and what he produced, it’s clear that he thinks someone ought to judge the case. It’s also clear that that that someone isn’t William Barr.
It’s up to Congress to decide. So, let’s get on with the impeachment inquiry and let the cards fall where they may.