But his prosecutors unspooled vivid details about an anxious and angry president willing to break long-standing traditions of presidential behavior to try to control the course of what was supposed to be an independent criminal investigation.
Some Democratic lawmakers contend a public airing of the president’s behavior at the coming hearing will move public and congressional opinion and may help build a case that Trump’s actions warrant impeachment — even if Mueller did not recommend criminal prosecution.
“For many Americans this will be blockbuster, new information,” predicted Rep. Ted Lieu, a California Democrat on the Judiciary Committee, who said he plans to quiz Mueller about the instances of possible obstruction of justice described in the report.
“We just need him to convey the facts, and that will result in people learning . . . there is a lot of evidence that the president obstructed justice,” Lieu said.
The ranking Republican on the panel, Rep. Douglas A. Collins (Ga.), predicted during a Fox News interview last week that the hearing is going to demonstrate “nothing is there” in terms of Trump’s alleged collusion with Russia.
It will reinforce what the report said, Collins told Fox, adding he hoped the hearing might also reveal more about “the corrupt cabal” — a reference to the FBI officials involved in the investigation who had expressed strong feelings against the president.
Mueller’s report painted a portrait of a president who repeatedly sought to get aides and associates to disrupt the special counsel’s investigation and whose efforts were periodically stymied only because underlings refused to follow his instructions.
When informed of Mueller’s appointment in May 2017, Mueller’s report indicates Trump slumped in his chair and declared, “Oh my God. This is terrible. This is the end of my presidency.”
Trump then quickly lashed out.
At one point, he ordered his White House counsel to direct that Mueller be fired over conflicts of interest his own staff had told him were “ridiculous.” Later, after news reports revealed how close White House counsel Donald McGahn had come to resigning rather than be involved with Mueller’s firing, Trump tried to pressure McGahn to announce the accurate stories were in fact false and file an inaccurate memo for White House files denying the report.
Trump also directed his former campaign manager — a private citizen — to order the attorney general to limit the scope of Mueller’s investigation only to future elections — not to Trump and his team’s actions. He lashed out at witnesses who were cooperating with the investigation, including his onetime personal attorney Michael Cohen, and publicly praised witnesses like Paul Manafort, who seemed to be withholding key testimony from the special counsel.
Mueller may resist a dramatic retelling of those events. In a 10-minute-long news conference announcing the end of his investigation in May, he said he did not wish to testify publicly, saying his testimony is all contained in the 448-page document his team submitted in the spring.
Still, Democrats hope he will agree to reaffirm details already outlined in the document. Lieu said a fair review of these examples and others in the report would lead a reasonable person “to an inescapable conclusion: Donald Trump committed a felony.”
Mueller did not draw that conclusion. Instead, he wrote that his team decided to avoid a “traditional prosecutorial judgment” one way or the other.
Mueller has so far offered only a brief description of how he came to that decision, which took many legal experts by surprise, and lawmakers will probably press him to offer more information about his thinking.
In his report, Mueller wrote that he felt bound by Justice Department policy memos that prohibit the criminal indictment of a sitting president.
He then went a step further, writing that if Trump could not be indicted — a step that would initiate a process that would allow the president to defend himself in court — then “fairness concerns” counseled against even an analysis that could result in a conclusion that Trump broke the law.
Still, Mueller added, “if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state.”
Former prosectors have expressed particular confusion because Mueller’s team offered a detailed analysis of 10 episodes that raised concerns of possible obstruction of justice and, in several, appeared to conclude evidence existed that the elements that comprise an obstruction violation were present.
For instance, McGahn told prosecutors Trump called him twice at home over a weekend in June 2017 and directed him to get Deputy Attorney General Rod J. Rosenstein to fire Mueller. “Mueller has to go,” McGahn recounted Trump told him. “Call me back when you do it.”
Rather than following the order, McGahn drove to the White House to pack up his things and informed three other White House staffers he intended to resign. Ultimately, McGahn remained in his post, and Trump let the matter drop.
Mueller wrote that “substantial evidence” existed that Trump’s efforts to remove Mueller were linked to the special counsel’s investigation of Trump’s conduct.
He likewise wrote there was “substantial evidence” that Trump’s intent was to shield himself from inquiry when, two days later, he had a one-on-one meeting in the Oval Office with his loyal former campaign manager, Corey Lewandowski. In that meeting, Lewandowski told prosecutors Trump directed him to pass a message to Attorney General Jeff Sessions.
Trump wanted Lewandowski to get Sessions to limit Mueller’s investigation and declare Trump’s activities off limits. Discomfited by the request, Lewandowski ultimately asked a colleague, then-White House adviser Rick Dearborn, to pass the message instead. Dearborn also declined to follow through.
More than 1,000 former federal prosecutors from Republican and Democratic administrations have signed a statement first circulated in May saying Mueller’s findings would have produced obstruction charges against Trump, were he not a sitting president.
But the United States Attorneys’ Manual requires that prosecutors do more than determine whether there is evidence that the elements of a particular crime are present before they decide to file charges.
They must also decide if prosecution would serve a “substantial federal interest” and whether there exists an “adequate noncriminal alternative to prosecution.” There is no evidence in the report that Mueller’s team performed an analysis of those additional questions.
“Mueller was a failure as a special counsel the minute he decided that he would not fulfill his most basic task,” said Jonathan Turley, who teaches constitutional law at George Washington University.
He called Mueller’s legal interpretation “incomprehensible” and likewise called him to task for not informing the public or his superiors at the Justice Department that he intended to duck a decision as to whether the president committed a crime.
A former Watergate prosecutor, Richard Ben-Veniste, said Mueller has a public service obligation at the hearing to explain the significance of his findings.
“He can do more to explain the danger of foreign meddling in our election process and the obstructive behavior of the president in the context of normal prosecutorial tradecraft,” Ben-Veniste said. The former prosecutor recommended Mueller look back at the news conference conducted by Watergate prosecutor Archibald Cox just before he was fired in what is commonly called the Saturday Night Massacre.
Cox’s eloquent review of complex legal questions circulating in Washington in October 1973 gave the public the opportunity to see his reasons for rejecting a White House proposal to allow President Richard M. Nixon to avoid turning over tapes as ordered by the courts. Providing public explanations of such knotty constitutional decisions, Ben-Veniste said, is part of the job of a special counsel.
“What report on its own has ever galvanized the public into action?” Ben-Veniste asked.