The very first and purportedly only press conference by special counsel Robert Mueller had the feeling of a Mount Sinai moment for Washington this week. Indeed, his message seemed to be the same as that of Moses, which is have faith and do not question. Mueller spoke some 1,200 words before virtually admonishing the press corps that “I hope and expect this to be the only time that I will speak to you in this manner.” After refusing to answer questions, he went back to the place from whence he came.
Last week, I wrote that it has become sacrilegious to question the motives or performance of Mueller. His press conference was the greatest test of such blind faith. Mueller announced that “the report is my testimony” and that he would not answer questions from Congress either, beyond what is already in his final report. From anyone else, such a statement would be denounced as arrogant, evasive, or both. However, many members of Congress and the media accepted it as the gospel according to Mueller.
The problem is that Mueller was uttering absolute nonsense about his inability to reach a conclusion. He likewise did not offer a principled basis for refusing to answer any questions. This includes obvious questions such as why he refused to comply with the request from his superiors to identify grand jury material, which delayed the release of his report. The disconnect in the coverage of his remarks was striking. Attorney General William Barr testified for hours on his role and has answered dozens of questions. He was promptly dismissed as evasive and even perjurious. Mueller declared he would tolerate no questions and declined to address any of the criticism of his work with very little objection from the media.
The press conference this week should be an embarrassment for the Justice Department. The agency has long maintained that the special counsel could perform the same function as an independent counsel in determining whether high ranking officials committed criminal acts. For two years, Congress and the Justice Department expressly anticipated findings of any criminal conduct. Mueller employed a massive staff and spent tens of millions of dollars. Yet, it now appears that he never intended to make any findings of possible crimes by President Trump.
Mueller insisted that, because there is a Justice Department policy not to indict a sitting president, he interpreted that to bar him from finding the basis for criminal conduct. According to Mueller, you can investigate but not reach basic conclusions on what the investigation found. One could understand why he would not be eager to answer questions about such an absurd interpretation, when his cited sources directly contradict him.
I testified on these flawed memos from the Office of Legal Counsel during the Clinton impeachment. Like many other academics, I view the policy as unsupported by either the Constitution or the convention debates, but that does not matter because the memos have simply nothing to do with a special counsel finding criminal conduct by a president. The memos focus entirely on the indictment and prosecution of a sitting president. They do conclude that being a defendant in a criminal case would thus prevent any president from performing his duties, but they do not challenge the need to investigate a sitting president. History shows presidents routinely accused of criminal conduct, including in impeachment proceedings.
Indeed, President Clinton was investigated and found to have committed crimes by an independent counsel. The Justice Department memos did not find that the investigation or such findings were improper. When the Independent Counsel Act subsequently expired, Congress was assured that the same investigatory function would be performed by any special counsels. The memos only addressed when a president can be indicted and said that prosecution must wait until he leaves office, since he could not function while in the docket of a criminal court or a federal prison.
Mueller has insisted that the policy “says that the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.” That is not actually what it says. The Justice Department concluded that its view “remains that a sitting president is constitutionally immune from indictment and criminal prosecution.” It focuses on the prosecution of sitting presidents, not the investigation of sitting presidents. In referencing a process other than the criminal justice system, it refers to the only legal way to remove a president from office.
Nothing in the memos even remotely bars a special counsel from reaching conclusions on the basis of possible criminal charges. Indeed, the memos accept that the Justice Department needs to establish such evidence to preserve a record for possible later charges. That is why Mueller was told by his superiors that there was no policy barring him from finding criminal conduct, only the policy against indicting while the president is in office. Even if you twist the memos to suggest some prohibition to reaching conclusions on criminal conduct, that debate should have ended when his two superiors, the attorney general and deputy attorney general, told him there was no such policy and asked him to reach a conclusion.
His instructions and mandate were crystal clear. His position is even more nonsensical when you look at what he has already done. Mueller declared that “we concluded that we would not reach a determination one way or the other about whether the president committed a crime.” Yet, Mueller contradicted that statement when he declared that “if we had confidence that the president clearly did not commit a crime we would have said so.”
So which is it? Mueller actually did reach a “determination one way or the other” on crimes related to collusion. In his special counsel report, he found that he could “not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.” In effect, Mueller ultimately came across as almost coquettish in his declaration that he would not make a clear finding of a possible crime but could not rule out criminal conduct by the president.
In other words, Mueller can produce hundreds of pages of evidence of possible criminal conduct and repeatedly refer to not exonerating Trump of crimes but somehow cannot reach a conclusion on the weight of the evidence. Of course,Mueller did not address such questions because he would not tolerate questions. The media simply listened obediently as he claimed that he was only being “fair” when he repeated that he could not clear Trump of the crime. That, of course, led the media to declare that Mueller really was searching for criminal conduct with a wink and a nod.
Whatever space Mueller occupied in maintaining such a position, it was neither created nor countenanced by federal law or Justice Department policy. Instead, he accepted the job of special counsel and then radically redefined it, without telling anyone outside of his staff. In that sense, he failed as special counsel. Mueller was not appointed to be a chronicler of allegations. Mueller was appointed to perform a prosecutorial function in the investigation of a president and his associates. Moreover, he does not get to dictate what Congress can investigate, or to stonewall the media.
I agree with Mueller on his hope and expectation that this will be “the only time that I will speak to you in this manner.” Next time, I hope and expect Mueller will finally address the growing questions about his investigation.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.