Sunday Long Read: Why It Was Never Mueller Time

Legal analyst Jeffrey Toobin goes over the autopsy report of the Mueller Report's death on arrival in this week's Sunday Long Read , and how the Justice Department was able to defuse it from his first day on the job. In hindsight it was clear how Mueller's careful, by-the-book actions were doomed from the start, and all of them, save Michael Cohen's conviction, will be undone by the time Trump leaves office.

Robert Mueller submitted his final report as the special counsel more than a year ago. But even now—in the midst of the coronavirus pandemic and the Administration’s tragically bungled response to it, and the mass demonstrations following the killings by police of George Floyd, Breonna Taylor, and many others—President Trump remains obsessed with what he recently called, on Twitter, the “Greatest Political Crime in the History of the U.S., the Russian Witch-Hunt.” In the past several months, the President has mobilized his Administration and its supporters to prove that, from its inception, the F.B.I.’s investigation into possible ties between his 2016 campaign and the Russian government was flawed, or worse. Attorney General William Barr has directed John Durham, the United States Attorney in Connecticut, to conduct a criminal investigation into whether F.B.I. officials, or anyone else, engaged in misconduct at the outset. Senator Lindsey Graham, of South Carolina, the chairman of the Senate Judiciary Committee, has also convened hearings on the investigation’s origins.

The President has tweeted about Mueller more than three hundred times, and has repeatedly referred to the special counsel’s investigation as a “scam” and a “hoax.” Barr and Graham agree that the Mueller investigation was illegitimate in conception and excessive in execution—in Barr’s words, “a grave injustice” that was “unprecedented in American history.” According to the Administration, Mueller and his team displayed an unseemly eagerness to uncover crimes that never existed. In fact, the opposite is true. Mueller had an abundance of legitimate targets to investigate, and his failures emerged from an excess of caution, not of zeal. Especially when it came to Trump, Mueller avoided confrontations that he should have welcomed. He never issued a grand-jury subpoena for the President’s testimony, and even though his office built a compelling case for Trump’s having committed obstruction of justice, Mueller came up with reasons not to say so in his report. In light of this, Trump shouldn’t be denouncing Mueller—he should be thanking him.

The events that led to Mueller’s appointment began shortly after Trump took office, when he met several times with James Comey, the director of the F.B.I. Over dinner at the White House, on January 27, 2017, Trump said that he expected “loyalty” from Comey—specifically, as he would later make clear, he wanted an announcement from the F.B.I. that he was not under suspicion for misconduct with Russia during the campaign. At the time, Michael Flynn, Trump’s former national-security adviser, was being investigated for lying to the F.B.I. As Comey later testified, on February 14th, at a meeting in the Oval Office, the President told everyone else to leave, then asked Comey to drop the investigation of Flynn. “I hope you can see your way clear to letting this go, to letting Flynn go,” Trump said. “He is a good guy.”

Comey declined either to publicly clear Trump of wrongdoing or to close the investigation of Flynn, and the President resolved to fire him. On May 8, 2017, Trump told Rod Rosenstein, who had recently been confirmed as the Deputy Attorney General, to write a memo describing Comey’s performance as the F.B.I. director, in particular his handling of the investigation into Hillary Clinton’s use of private e-mail. The following day, Rosenstein submitted the memo and Trump fired Comey. Sean Spicer, the President’s press secretary, told reporters that the President had done so for the reasons stated in Rosenstein’s memo, but, as Trump soon confirmed in an interview with NBC’s Lester Holt and in a conversation with visiting Russian officials, the real reason was related to the Russia investigation.

Rosenstein was distraught over how the White House had used his memo. Concerned about Trump’s firing of Comey, he named an independent prosecutor, now known as a special counsel, to look into a possible connection between the Trump campaign and Russia. (Jeff Sessions, the Attorney General, had recused himself from matters relating to Russia.) Rosenstein didn’t consider anyone except Mueller for the post. Mueller had both the skills and the bipartisan credibility that the job required. Having worked in the Justice Department during the Cold War, he hardly needed lessons on the malign intentions of the government in Moscow. Mueller had been a federal prosecutor in the nineteen-eighties, the head of the Justice Department’s criminal division during the George H. W. Bush Administration, and then, starting in 2001, the F.B.I. director for twelve years. Until May 17th, when Rosenstein named him as the special counsel, Mueller knew very little about the state of the Russia investigation. Andrew McCabe, who, as Comey’s former deputy, was the acting director of the F.B.I., invited Mueller to the J. Edgar Hoover Building for a briefing.

At the first Senate Judiciary Committee hearing on the Russia investigation, on June 3, 2020, Graham opened the proceedings by saying, “It’s important to find out what the hell happened.” He wanted to know whether, when Mueller was appointed, there was any evidence that Trump’s campaign had been colluding with the Russians. McCabe’s briefing of Mueller, along with a subsequent meeting between Mueller and Rosenstein—neither of which has been previously reported—begin to address Graham’s question. These meetings demonstrate that, from the beginning, Mueller was instructed to conduct a narrow, fact-based criminal investigation.

The new information here is the mettings between Mueller and Andrew McCabe, and Mueller and Rod Rosenstein, with the express intent of limiting the scope of Mueller's investigation in order to make sure there was no indication of impropriety.  Mueller of course had no defense against being constantly accused of it, and the investigation found nothing on Trump himself that he could reveal. Toobin goes on to reveal that as most of us suspected, the Mueller team was handcuffed from day one because they didn't know how to deal with cheaters like Trump and especially Barr.

In other words, Mueller was told not to exceed his mandate.  He didn't.  And it cost the country everything, as the regime has been able to hide all the evidence since then, including the grand jury testimony, from House Democrats.  It's entirely possible that we'll never know the full story of what Trump did with Russia for years, if ever.

In all honestly think Joe Biden's first act as President should be to declassify the entire Mueller report and make it public. It won't happen, but it needs to.