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What Mueller got right (Gen. Michael V. Hayden, David Priess, Lawfare)
Special Counsel Robert Mueller has concluded his investigation, and many questions remain. Chief among them is what animated Mueller’s decision not to reach a conclusion on possible obstruction of justice by the president. Why did he choose to follow Department of Justice policy prohibiting the indictment of a sitting president? Would he have indicted the president without that policy? Why did he seemingly leave it to Congress—and, perhaps inadvertently, to Attorney General William Barr—to make a final judgment on the president’s conduct?
Some observers have criticized Mueller for not leaning forward more. Even those who have admired his approach to the investigation overall, like Paul Rosenzweig, argue that Mueller elevated the institution of the presidency over the rule of law by declining to opine on “whether or not the evidence supported the conclusion that the president committed crimes.” Rosenzweig points out that the special counsel “chose not to even characterize the president’s actions.”
In fact, Robert Mueller did precisely what he should have done and precisely what the country needed: He played it straight, defining his prosecutor’s role narrowly. The fact that he did so does not surprise us one bit.
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The special counsel had an excruciatingly narrow channel to navigate. On one side lay the Scylla of under-reporting: giving the attorney general (and Congress) too little information to have full confidence in the evidentiary basis for his prosecution and declination decisions. The other side hosted the Charybdis of over-analyzing: opining about criminal charges that he knew he could not bring against the president due to Department of Justice policy.
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…there’s also honor in what Mueller chose not to do.
He did not, either before the report or since its release, go public to deny or rebut repeated attacks on his integrity, and on the integrity of his staff, from Trump and the president’s allies. Instead, he let his team’s investigatory work do the talking.
…. (cont.)