“He took a mulligan and hit it into the lake.” So said historian Jon Meacham, my co-panelist on Sunday’s “Meet the Press,” in a quippy but devastating conclusion about Robert S. Mueller III. He did so after I had delivered the center-right legal world’s hardening conclusion that the report of the special counsel was not only incomprehensible but also indecipherable (news organizations are divided on something as basic as whether there are 10 or 11 specific fact patterns reviewed in Volume II) and profoundly irresponsible.
Page 8 of Volume II of the report, its “conclusion,” begins “Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President’s conduct.” But there was an implied conclusion in the report that Mueller left to Attorney General William P. Barr to make explicit as the Justice Department’s conclusion: There was insufficient evidence that President Trump obstructed justice or committed any other crime.
The sidebar chatter on whether a president can be prosecuted has nothing to do with this bottom line that there was insufficient evidence to conclude that the president committed any crime. Former U.S. Court of Appeals for the 4th Circuit judge J. Michael Luttig — one of America’s great legal minds, whose law clerks now populate the federal bench and highest levels of government — rarely goes on the record about law or politics. He did so in this paper last week, saying that “The fact that a president cannot be prosecuted does not foreclose a finding by a special counsel of whether a president committed a crime.” He is 100 percent correct.
For two years on television, radio and print, I have defended the special counsel’s integrity. I don’t know him, but share many friends and colleagues, and I think him among the most honorable of men: a decorated combat veteran of Vietnam, a lifelong prosecutor, a defender of the country as a superb leader of the FBI after 9/11. I still believe these things. But these truths are not inconsistent with a fumble of the last ball he was tasked with carrying, and fumble it he did.
With the Mueller fiasco, the damage to the idea of a special counsel is complete, and that is a good thing. Long ago I served as law clerk to the panel of circuit court judges that selected “independent counsels” because the judge I clerked for, Roger Robb, was its senior member. As a special assistant to Attorneys General William Smith and Ed Meese, and a member of the White House Counsel’s Office under the estimable Fred Fielding, I saw firsthand how difficult it was for the Justice Department and the White House to deal with the bizarre idea of a prosecutor independent of everyone, an idea deeply at odds with the framers’ design for the executive branch. I’ve taught constitutional law for 25 years and always teach that the Supreme Court affirmed the constitutionality of the independent counsel statute that replaced the ad hoc special counsel arrangements of the Nixon era. But I also point out that, crucially, Congress decided not to renew that statute because of its malignant consequences.
The sorry collapse of the Russia investigation proves — again — that neither the “special counsel” nor “independent counsel” position can be made to work, even by as upright and experienced men as Robert Mueller and Kenneth Starr. The regulations concerning matters which trigger these fiascos should be deleted from the Federal Register, and the attorney general and Congress should be charged with investigation of executive branch wrongdoing. And if wrong-doing is found, the attorney general, Congress and voters can decide on the consequences.
Crucially, the attorney general has assigned experienced prosecutor John Durham, the U.S. attorney in Connecticut, to investigate a critically important question: Whether, as Barr put it, a small group of senior law enforcement officials developed among themselves a “Praetorian Guard mentality,” and set about to “stop Trump” by whatever means necessary.
I now offer the left the same counsel on Durham that I offered the right on Mueller: Withhold judgment until his report. But when Durham concludes his investigation, if he finds no crime was committed, he or the attorney general ought simply to declare the investigation is complete and no crimes were committed that the Justice Department could prove to our law’s requirements. That is what Hillary Clinton was owed, and denied, by James Comey. That is what Trump was owed, and denied, by Mueller. That is what all the people under a cloud because of “Spygate” charges around the Steele dossier are owed, whether you like them or not. One of our country’s great principles is “innocent until proven guilty.” Politics is corrupting this standard, and Mueller, for whatever reason, contributed to that corruption.