Mueller lost much of our trust — and that's a shame, for him and for us

Some hopeful day, when planets and stars align, when cars fly and dilithium crystals are discovered, when baseball drops the designated hitter and presidential debates include people we’ve actually heard of, perhaps then we’ll learn why in the world Robert MuellerRobert (Bob) Swan MuellerTrump calls for probe of Obama book deal Democrats express private disappointment with Mueller testimony Kellyanne Conway: 'I'd like to know' if Mueller read his own report MORE ever agreed to a) be a special counsel and b) testify before Congress and the world.  

Neither decision has turned out well for him, which is unfortunate. I was with Bob Mueller all day on 9/11 when he had been FBI director for exactly one week. He displayed competence and leadership in ways the public will never know. His pedigree of service to this nation is well documented and all approbation is well deserved. His unsteady testimony before Congress this week should not define his legacy.

But this does not inoculate him from fair criticism, and this he invited in a number of ways during his appearance before the House Judiciary and Intelligence committees.  

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First: Mueller came across as hesitant, uncertain and ill-prepared. He seemed unfamiliar with his own report, which led to some gross inconsistencies in his testimony. Couple this with his unusual request to have his deputy counsel along for backup and suddenly there was a very real perception that Mueller was not fully in command and control of the special counsel effort.  

This was amplified by his efforts to heavily redact himself. It’s one thing to stand by your report; it’s quite another to hide underneath it and swat away even innocuous questions. It’s not a good look and leads reasonable people to wonder what’s being concealed. Trust seemed to erode.

Second: Mueller was given a mandate to conduct a counterintelligence investigation based on that which the FBI started. He instead decided on his own, according to his testimony, to conduct a criminal investigation.  

He did this even though the memo authorizing the special counsel provided no justification for a criminal investigation of the Trump campaign or the president. In other words, he started a criminal investigation for which there was no predication. We don’t do that in this country — or, at least, we didn’t until now. 

Truth be told, a true counterintelligence investigation would not have required a special counsel who was a prosecutor or even an attorney. FBI counterintelligence investigations never involve the U.S. Attorney’s Office. Their purpose is to expose foreign intelligence efforts, methodologies and strategies targeting our country.  

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The ultimate customer for the results of a counterintelligence investigation, ironically, is the president so that appropriate policies and protections can be set. Counterintelligence investigations do not result in prosecutions.

So instead of a report that does a deep dive into all the ways the Russians tried to interfere with the 2016 presidential election, which the special counsel was explicitly asked to examine, we were left with a narrow and perfunctory declaration that, indeed, the Russians tried to interfere with the election, along with indictments of some Russian social media manipulators.  

Most normal people — who aren’t certain members of Congress — already knew the Russians actively spy. As Mueller himself pointed out in his testimony, Russian intelligence services have, are, and will attempt to interfere in our elections (plus many other things). That is what they do, that is their raison d’être. If they didn’t try to interfere they should be sued for malpractice in some grimy Kremlin court.  

Russian interference and influence intelligence operations are a big deal and real threat. We know their potential impact because, frankly, we deploy our own effective efforts. The fall of the Soviet Union was in no small part prodded along by western intelligence operations. 

These threats matter and, despite clear marching orders to examine them in detail, the special counsel team seems to have given this issue short shrift in favor of pursuing a criminal conspiracy case that didn’t exist. Where can we go for a refund?

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Third: Mueller’s decision to articulate in his report possible obstruction of justice behaviors on the part of the president was ill-advised, particularly because he was unwilling to determine whether the president committed a crime. If you’re not going to indict, then don’t incite.

But incite the opposition party he did, and most of the Democratic committee members tried to make a case for obstruction where Mueller would not.

This was more wishful thinking than legal pragmatism. Mueller likely was unwilling to claim a crime had been committed because he knew he didn’t have a case. Here are the headwinds he was staring at:

  • There was no underlying crime or properly predicated investigation to obstruct.
  • There may be no precedent for charging obstruction of a counterintelligence investigation.
  • The intertwined political motivations and overtones were an unsavory factor.
  • It’s difficult to argue that an innocent person can be culpable for resisting efforts to punish.
  • Most allegations were based on uncorroborated single witness statements.
  • None of the allegations actually impeded or obstructed the work of the special counsel.  

In the end, Mueller’s rough day of congressional testimony brought added texture to what the American people are seeing more clearly with each passing day: The processes and infrastructure of government that we trust to fairly administer justice were imperiled for naked political motivations and advantage. It was cynical and wrong, and it begs for reform so that it never happens again.        

Kevin R. Brock, former assistant director of intelligence for the FBI, was an FBI special agent for 24 years and principal deputy director of the National Counterterrorism Center (NCTC). He is a founder and principal of NewStreet Global Solutions, which consults with private companies and public-safety agencies on strategic mission technologies.