Special counsel Robert Mueller departs the Capitol after a meeting with the Senate Judiciary Committee in Washington on June 21, 2017.(AP Photo / J. Scott Applewhite)
I don’t know how you can read the 448-page Mueller report, as I just did, and come to any conclusion other than that President Donald Trump obstructed the investigation into Russia’s interference with the 2016 election. Even if you think that the Trump campaign didn’t criminally conspire with Russia to achieve such interference, that Trump then tried to kill and mislead the investigation about that interference is made more than obvious by the second half of the special counsel’s report.
Robert Mueller didn’t charge Trump with “obstruction of justice.” As was widely expected, Mueller determined that his office lacked the authority to charge a sitting president with a crime.
If that was all Mueller did, you’d thank him for his service and patiently wait for Congress to impeach the president for obstruction. That’s what happened to President Bill Clinton. He was impeached by Congress for perjury and obstruction. If we live in a world where one president gets impeached for obstructing an investigation into his extramarital affairs, we should certainly live in a world where this president gets impeached for obstructing an investigation into a foreign conspiracy to tilt the outcome of an American election.
But even under the standard Mueller held himself to, he didn’t finish the job. He didn’t finish the investigation.
Mueller didn’t subpoena Donald Trump. Or Donald Trump Jr. Or Ivanka Trump. Or Eric Trump. Or Jared Kushner. His failure to directly ask those five principals a single in-person question represents a failure of his investigation. It’s a failure that will haunt this country for some time.
Mueller’s reasons for not subpoenaing Trump are what the scientists would call “bad.” The report says that investigators sought a sit-down interview with Trump, but were rebuffed. It says that they received written answers from Trump’s team, but these were “inadequate.” The report includes those written responses, and Trump’s lawyers use the phrase “can’t recall” 37 times, which puts Trump’s memory on par with a goldfish. Mueller concludes that the cost of issuing Trump a subpoena that would delay the investigation as Trump fought all the way to the Supreme Court outweighed the benefits of securing his testimony.
That’s unacceptable. You can’t hold yourself out as a nonpolitical prosecutor only concerned about the facts, and then make a decision to not secure additional facts based on a purely political calculation. Getting Trump to testify under oath about Trump’s intention behind all of the acts he committed that look like obstruction of justice is crucial to the inquiry of obstruction of justice. You are just not investigating obstruction of justice if you do not attempt to get those facts, and saying, “Well, he’d resist,” is simply not what we deserved from the special counsel.
Would Trump have fought subpoenas all the way to the Supreme Court? Maybe. But we don’t actually know that. Politically, it would have been very, very hard for “No Collusion” Trump to so spectacularly refuse to testify. It would have been difficult for Trump to constantly call for the “end” of the investigation if Mueller was sitting there saying that the investigation would end just as soon as Trump sat down for an interview. And would Trump really want to be engaged in a drawn-out court process over his testimony as he’s running for reelection in 2020? How many times could he have actually said “I have nothing to hide” on the campaign trail as he was actively in court trying to hide something? How would he have taken the Fifth Amendment under those circumstances?
We’ll never know how Trump would have reacted to a subpoena, because Mueller never tested him. Instead, he’ll leave it to Congress to test him. That might be better for Bob Mueller, but that’s certainly not better for America. The whole point of having a special counsel was to conduct a nonpartisan investigation into these potential crimes. If Congress has to do it, it becomes partisan by definition.
Whatever theory of executive untouchability Mueller graciously extended to Trump shouldn’t have been extended to his adult family members. But Mueller’s decision not to pursue testimony from Donald Trump Jr. is just as flawed as his decision to not get Senior under oath.
The Mueller report examines in detail the Trump Tower meeting where Don Jr, Jared Kushner, Paul Manafort, and others met with Russian officials on the promise of obtaining damaging information about Hillary Clinton. There are two potential crimes from that meeting: a campaign-finance violation (to the extent that proffered “dirt” on Clinton constitutes a contribution to the Trump campaign), and obstruction of justice arising from all the ways the Trump team lied about that meeting after it became public knowledge.
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I don’t know how you answer either of those questions without interviewing Donald Trump Jr., but the Mueller team didn’t even try. The Mueller report explains that investigators thought it would be very hard to make a charge stick to Don Jr., mainly because it would be hard to show that Jr. had the requisite knowledge that what he was doing was wrong in order to make the charge hold up. Yes, Mueller essentially says Don Jr. is too stupid to commit campaign-finance fraud.
Which, is probably true, but you don’t really know how dumb Don Jr. is until you talk to him, and Mueller didn’t. He didn’t try to subpoena Don Jr., who organized the meeting. He didn’t try to subpoena Jared Kushner who was at the meeting and had the emails proving that the meeting took place.
Ivanka Trump and Eric Trump weren’t at the Trump Tower meeting, but they were at other meetings with Russians that were detailed in the Mueller report. Their testimony was not subpoenaed either. Mueller subpoenaed no Trump family member—people who had knowledge of the Trump campaign’s operations but could not hide behind sitting-president privilege.
Why? I’m sorry, but if I were Paul Manafort or Michael Cohen or Rick Gates or any of the people that Mueller has put the screws to, I’d find the Mueller report entirely unfair. These investigators went out and took down a number of people in Trump’s orbit, many of them for lying to Robert Mueller. But when it came to the big fish—the president and his family—Mueller was too timid to even ask them a question. Maybe if Mueller had asked, these people would have lied to investigators too; the family seems pretty comfortable lying to everybody else.
This investigation was not good enough. It was not thorough enough. Mueller was given a huge task, and he only did the easy bits. He only went after the weaker links.
If he was prevented from pursuing these leads—by Rod Rosenstein or Bill Barr or anybody else—he must say so. If his investigation was terminated before he could finish, he must say so. But I’m forced to wonder if Robert Mueller got so wrapped up in the idea of “Robert Mueller’s reputation” that he wasn’t willing to risk it in order to complete his job. If Mueller had gone after Trump’s “kids,” as his own evidence demanded he do, maybe the right wing would start throwing real dirt on Mueller’s reputation. Maybe that reputation was worth more to him than finishing the job.
Robert Mueller wasn’t willing to subpoena Trump and his family. Now Congress is going to subpoena Robert Mueller. I hope he has better answers for why he did not follow the evidence than what he has given in his report. The country deserves better answers than this.
Elie MystalTwitterElie Mystal is The Nation’s justice correspondent and the host of its legal podcast, Contempt of Court. He is also an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution, published by The New Press. Elie can be followed @ElieNYC.