What did Mueller know?

In May 2017, immediately after the firing of FBI Director James ComeyJames Brien Comey'Fox News Sunday' to mark 25 years on air Showtime developing limited series about Jan. 6 Capitol riot Wray says FBI not systemically racist MORE, Robert MuellerRobert (Bob) MuellerWhy a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel CNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump MORE was appointed special counsel to investigate conduct concerning any links and/or coordination between the Russian government and the Trump campaign in 2016, as well as any matters that arose from the investigation, including obstruction of justice. Although Trump supporters were angered by any appointment, the choice of Mueller was applauded, he being perhaps the singularly best person for the job. He became an instant media darling — his almost reclusive nature and unwillingness to say anything outside of court becoming a hallmark of his nonpartisan tenure.   

But what do we find now? Apparently, Mueller’s surely nonpartisan nature may have been eclipsed several weeks ago by his confidential disclosure to Attorney General William BarrBill BarrDemocrats, activists blast reported Trump DOJ effort to get journalists' phone records Trump admin got phone records of WaPo reporters covering Russia probe: report The Hill's Morning Report - Presented by Emergent BioSolutions - Facebook upholds Trump ban; GOP leaders back Stefanik to replace Cheney MORE that his report would offer no conclusion as to whether the president had obstructed justice. Some reporting suggested that Trump’s lawyers have theorized there may have been a difference of opinion in Mueller’s own office over whether the president did, in fact, commit the offense.


But even assuming for the sake of argument that was the case, it is a prosecutor’s job — some would say mandate — to make a decision. That is so even if it means declining to prosecute because while there is evidence to suggest the president was obstructive, that evidence does not amount to proof beyond a reasonable doubt that a crime was committed.

Mueller, of course, was well aware that Barr is a presidential appointee, unquestionably partisan. Indeed, it has been widely reported that Mueller and Barr are personal friends whose families socialize together. What’s more, Mueller knew that, prior to Barr’s being appointed, that Barr — unsolicited — in June 2018 had given a memo to the Justice Department stating that Trump’s firing of Comey was not, could not be, obstruction of justice because, according to Barr, the firing was well within a president’s powers. Was he auditioning for the job? Who knows. And it’s not particularly important here.

What is critical (and it goes to the heart of assessing Mueller’s performance) is whether Mueller knew, when he submitted his unexpurgated report, that the attorney general would take it upon himself to declare the president had not committed the crime of obstruction. That is, did Mueller know that, after his two years of painstaking and scrupulous investigation, he was relinquishing to Trump’s appointee — whose impartiality was vigorously challenged by almost every Democrat senator — a decision that Mueller himself was unwilling to make?    

Now, maybe Mueller knew that Barr would do this. Maybe Mueller thought Barr would recuse himself, as his predecessor did in the Russia investigation. Or, Barr simply seized on a convenient opportunity to do what he honestly believed was the right thing. Perhaps Mueller had simply had enough, or his team could not agree on whether they could charge obstruction. There are too many possibilities to guess.

And that is precisely the issue. Not only does the public need to see the entire report (putting aside appropriately redacted material) but, in light of Barr’s complete vindication of the president, the public needs to understand why Mueller made the choice he did. We have no question whatsoever that both special counsel and attorney general will tell the absolute truth before Congress. And one would hope they would be asked (ironically) the same question about Mueller as was asked during Watergate about Richard Nixon: “What did he know and when did he know it?”

It’s a fair question, the answer to which the public has an absolute right to know. Because right now, a large portion of the public is wondering if the entire investigation, as it involves obstruction, was all for naught — that is, an investigation that would specifically allow “the president’s guy” to exonerate him.       

Joel Cohen, a former prosecutor, practices white-collar criminal defense law at Stroock & Stroock & Lavan LLP and is an adjunct professor at Fordham Law School. He is the author of “Blindfolds Off: Judges on How They Decide.”

Gerald B. Lefcourt practices criminal defense law in New York City. He is a past president of the National Association of Criminal Lawyers, a founder of the New York State Association of Criminal Defense Lawyers, and founder and past president of the New York Criminal Bar Association.