What happens when one side in a dispute plays carefully by the rules and the other side repeatedly lies, threatens and intimidates? Too often, we know, the tough guys win.
That’s what troubles me most at the end of this week, when Robert S. Mueller III resigned from the Justice Department and ended his mission as special counsel investigating Russian meddling in the 2016 presidential election. Mueller was a supremely responsible public servant — to a fault — and he’s getting trashed by President Trump anyway.
Mueller went out like a lamb in his remarks Wednesday, when the country needed a lion. He was so polite and deferential, so insistent on following Justice Department rules limiting his actions that, in practical terms, he ceded the ground to Trump and his apologists.
In addressing questions central to how the United States will maintain the rule of law during Trump’s presidency, Mueller was coy. His language was maddeningly indirect — almost deliberately obtuse.
On the evidence he had gathered about obstruction of justice: “If we had had confidence that the president clearly did not commit a crime, we would have said so.” On the path of impeachment (as opposed to the criminal indictment that Mueller felt was proscribed by DOJ policy): “The Constitution requires a process other than the criminal-justice system to formally accuse a sitting president of wrongdoing.”
What could Mueller have said instead? Based on his report, he could have stated: In at least four instances, Trump’s conduct appeared to meet the three-level standard that prosecutors use in weighing whether an obstruction of justice charge is warranted.
Based on his reading of the Constitution, he could have said: Because a president cannot be indicted, the special counsel’s evidence should be referred to the House of Representatives, which under the Constitutionis charged with weighing evidence of presidential “high crimes and misdemeanors.”
At a minimum, Mueller could in his farewell have paraphrased this memorable statement from his report: “The President’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests.”
But he didn’t say anything so clear or direct. Historians will puzzle over why.
Perhaps Mueller truly thought a more forthright version would be unfair to the president. Perhaps he worried about overstepping the limits of his office. Perhaps his review had convinced him that the president had, as Trump claimed, been unfairly hounded by Congress and the media over Russian collusion, and that any obstructive actions were attempts to protect himself from harassment.
We’ll probably never know. Members of Mueller’s team will eventually leak their own versions of why Mueller made the choices he did, but the only reliable account is Mueller’s. And, as he said this week, the only narrative we’re likely to get from him is the one in the report.
Mueller’s discretion had been, until the end of the story, one of his greatest virtues. He steadfastly refused to comment on the investigation while it was ongoing to preserve his credibility and integrity. But when he completed his work, Mueller had an obligation to the country to explain his findings and what he thought should be done with this evidence. Instead, he ducked it.
Mueller needed to voice his conclusions this week so clearly that they would echo across the country in the difficult months ahead. Instead, he spoke in that quiet, almost passive voice that, I fear, fell flat.