While President Trump has vacillated on whether special counsel Robert MuellerRobert (Bob) MuellerSenate Democrats urge Garland not to fight court order to release Trump obstruction memo Why a special counsel is guaranteed if Biden chooses Yates, Cuomo or Jones as AG Barr taps attorney investigating Russia probe origins as special counsel MORE should testify before Congress, Attorney General William BarrBill BarrBannon's subpoena snub sets up big decision for Biden DOJ Five takeaways: Report details Trump's election pressure campaign Biden slips further back to failed China policies MORE has not. He repeated this week that he had no objection to Mueller appearing before Congress.
Critics of allowing Mueller’s testimony contend that the vast majority of Mueller’s 448-page report has been released and there is nothing to be gained by hearing directly from Mueller. In some respects, they are correct. If and when Mueller does testify, we can expect a barrage of questions on topics ranging from the definition of “collusion” to his conversations with Barr regarding the release of his report.
And while the fact of Mueller’s appearance will itself be riveting, his testimony may not. Given his background and temperament, Mueller is likely to choose his words carefully and not stray far from the findings in his report.
But even Barr admits that one question remains unresolved.
Barr testified to Congress that he asked Mueller to reach a conclusion on all crimes. Yet as to obstruction of justice, Mueller failed to do so. We need to know why. Although the report provides some insights into Mueller’s reasoning, only Mueller can provide the complete answer.
Here is what we know about Mueller’s decision.
Mueller adhered to the Department of Justice guidelines prohibiting the indictment of a sitting president. The rationale for that policy is simple: presidents should not be forced to defend themselves from criminal prosecution while running the country. If a president engages in potentially criminal behavior, he or she can be charged with a crime after term’s end. Or, if the conduct is so egregious as to warrant immediate action, Congress has the mechanism of impeachment to remove them from office.
Mueller also followed a second DOJ policy that prohibits naming individuals in connection with allegations of criminal wrongdoing in publicly filed documents, unless the individual is actually charged with a crime. This issue generally arises in the context of what is known as an “unindicted coconspirator,” someone prosecutors believe committed a crime but who, for various reasons, has not been charged. In this instance, the policy is rooted in the belief that it is fundamentally unfair to make allegations against someone in a publicly filed document without providing them with the opportunity to respond and clear their name in a court of law.
Taken together, Mueller concluded that he was permitted to decide that no crime was committed because neither DOJ guideline was implicated, and that he was barred from reaching the opposite conclusion.
And this is exactly what occurred on the obstruction of justice portion of his report. Mueller failed to reach a conclusion on whether the president committed obstruction of justice — not because the evidence was necessarily insufficient, but because he believed that DOJ guidelines prohibited him from doing so. In Mueller’s view, while DOJ guidelines permitted him to clear the president of criminal wrongdoing, as he did on the issue of collusion, he was prohibited from making the opposite finding with regard to obstruction of justice.
Thus, while Mueller’s report walks us through a dozen incidents of possible obstruction of justice in painstaking detail, he failed to reach a conclusion — not necessarily because he could not based on the evidence, as Barr suggested when he released his four-page letter summarizing Mueller’s bottom-line conclusions, but because he determined he was constrained by DOJ policy from even trying.
In other words, for those who believe that Mueller intended to find possible criminal wrongdoing by the president, Mueller makes clear that was never his intention.
Given the gravity of the issues raised in Mueller’s investigation, Americans are entitled to understand why no conclusion was reached on obstruction of justice. While Barr testified to Congress that he asked Mueller to reach a conclusion on all crimes, Barr has acknowledged that he cannot explain the rationale for the special counsel failing to do so.
We are left with an investigation filled with facts but devoid of certain critical conclusions. The appointment of the special counsel was designed to remove the cloud of political influence over the investigation and determine if any laws had been violated. Ironically, the constraints that Mueller read into his mandate have now done exactly the opposite — leaving one half of his report unresolved and the ultimate decision as to whether the president obstructed justice in the hands of Congress.
The American people deserve a better explanation. Perhaps with Mueller’s testimony, they will get it.
Robert A. Mintz is a former federal prosecutor and former deputy chief of the Organized Crime Strike Force Division in the U.S. Attorney’s Office in the District of New Jersey. He is currently the managing partner of the Newark, New Jersey office of McCarter & English, LLP. Find him @Robert_Mintz