Departing special counsel Robert S. Mueller III finally spoke publicly Wednesday, and his carefully chosen comments highlight the ways in which he disagrees with his boss, Attorney General William P. Barr, about the facts and the law surrounding the investigation into President Trump.
“If we had had confidence that the president clearly did not commit a crime, we would have said so,” Mueller said Wednesday.
Barr had that confidence. He declared in March that while Mueller’s principal conclusions did not include a determination of whether the president had committed the crime of obstruction of justice, Barr had reviewed the evidence and concluded Trump did not break the law.
“The Special Counsel’s decision to describe the facts of his obstruction investigation without reaching any legal conclusions leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime,” Barr wrote to Congress at the time.
In his report and his public remarks, Mueller indicated he holds a different view on the question of potential presidential crimes, refusing to clear the commander in chief and alluding to Congress’s impeachment power as the constitutional arbiter.
Mueller’s remarks also made clear how heavily his office relied on a long-standing legal opinion from the Justice Department’s Office of Legal Counsel that a sitting president cannot be indicted. That opinion, Mueller said Wednesday, “says that the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.”
Asked about his disagreements with Mueller, Barr has made a point of emphasizing that when the two men met privately on March 5 to discuss the findings, Mueller said he would not claim the president would have been charged with a crime if he weren’t the president.
“We specifically asked him about the OLC opinion and whether or not he was taking a position that he would have found a crime but for the existence of the OLC opinion. And he made very clear several times that that was not his position,” Barr told reporters last month.
Democrats have accused Barr of misleading lawmakers and the public on this point.
Rep. Adam B. Schiff (D-Calif.), chairman of the House Intelligence Committee, called Mueller’s comments Wednesday “a direct rebuke” of the attorney general’s statements. He accused Barr of “deliberately and repeatedly” misleading the American people on the issue of the OLC opinion.
Spokesmen for Mueller and Barr said Wednesday evening that the two men’s statements about the OLC memo are not in conflict.
Since filing their 448-page report, Mueller and his team have been frustrated by what they perceive as a lack of public understanding about this point — that Justice Department policy and fairness prohibit the special counsel from reaching a decision, even secretly, on whether the president committed a crime.
“That was the Justice Department policy, and those were the principles under which we operated,” Mueller said. “From them we concluded that we would not reach a determination — one way or the other — about whether the president committed a crime. That is the office’s final position, and we will not comment on any other conclusions or hypotheticals about the president.”
Having adopted that stance, Mueller and his team also concluded it would be improper for him to say that the president would be charged with obstruction if it were not for the Justice Department policy, because saying that would also amount to a criminal accusation against Trump, according to people involved in the discussion.
Mueller’s team came to believe that making any sort of impeachment referral to Congress also would fall under the category of accusing the president of a crime, according to people familiar with their discussions who spoke on the condition of anonymity to discuss internal deliberations.
For those reasons, Mueller was guarded in his comments about the findings and wants to avoid being drawn into a back-and-forth in congressional testimony that could be construed as accusing the president of a crime, these people said.
Barr and Mueller also disagreed in other telling ways.
On Wednesday, Mueller said there was “insufficient evidence” to show a conspiracy among Trump associates or Americans to aid Russian efforts to interfere in the 2016 election.
When Barr announced Mueller’s findings, he said there was “no evidence” to show any such conspiracy.
But Mueller’s appearance also sought to play down any tension between the two longtime friends over recent areas of disagreement. After the special counsel’s report was filed in March, Mueller had privately urged the attorney general to quickly release the executive summaries.
Barr refused, arguing he wanted a nearly full version of the document to be released all at once.
“We appreciate that the attorney general made the report largely public,” Mueller said Wednesday. “I do not question the attorney general’s good faith in that decision.”
Mueller also said no one had pressured him to avoid testifying to Congress.
“I hope and expect this to be the only time that I will speak about this matter. I am making that decision myself — no one has told me whether I can or should testify or speak further about this matter,” Mueller said.
Robert Mintz, a former federal prosecutor, said Mueller’s statements show “a major disconnect with Barr on the issue of obstruction of justice.”
“Mueller made clear that he would have exonerated the president on obstruction if he believed the evidence warranted such a finding. Yet Barr, looking at the same evidence, came to the opposite conclusion and issued a statement that the evidence was insufficient to establish that the president committed obstruction of justice,” Mintz said.
Mueller’s appearance Wednesday seemed to put the issue squarely before Congress, while also signaling that, going forward, he would not be a willing participant in that process.
The work, Mueller said, “speaks for itself,” and he said he would not provide Congress any information beyond what lawmakers have in the report.
Trump and his team have been effective in eight weeks of shaping the findings — and his supporters declared Mueller’s statements a fresh political victory for the president.
“Today was phenomenal news. Former Director Mueller said he was going to ride off into the sunset and let his report stand,” said Jason Miller, a Trump adviser and former campaign spokesman. “For Americans who have already made their decision here, that’s very definitive. Everyone has already decided on this issue.”
Trump has repeatedly praised Barr to White House aides and friends — saying he has defended him and proved to be a “real” attorney general. Trump gave positive reviews to Barr’s congressional testimony, his news conference before the report and his public comments, White House officials said.
The president was pleased that Mueller does not want to testify, an aide said.
Rep. Hakeem Jeffries, a New York Democrat on the Judiciary Committee, said Mueller’s comments undercut Barr’s past claims.
At some point, Jeffries insisted, Mueller is “going to tell the whole story.”