The special counsel took this inviolate principle and slyly “inverted” it.22 He argued that he could not prove that the president had not committed a crime. In the annals of American jurisprudence, that was a new one. Think about what it really means. It is a double negative. Mueller was contending that he can’t prove that something didn’t happen. What if this were the standard for all criminal investigations? Apply it to yourself. Let’s say you deposit your paycheck at the bank on Monday, the same day it’s robbed. A prosecutor then announces that he cannot prove you didn’t rob the bank, so you are neither criminally accused nor “exonerated.” The burden of proof has now been shifted to you to disprove the negative. How would you feel? You’ve been maligned with the taint of criminality and no longer enjoy the presumption of innocence.
This is the equivalent of what Mueller did to Trump. The special counsel created the impression that Trump might have engaged in wrongdoing because he could not (or would not) prove otherwise. The consequential injustice and harm that inevitably followed is what happens when we reverse the burden of proof and abandon the presumption of innocence standard that is revered in a democracy as a fundamental right. Yet that was what Mueller did: he improvised a new extralegal standard that applies only to Trump: presumption of guilt. Under this novel “guilty until proven innocent” paradigm, it is up to the accused to show that the allegations are false. When Mueller testified before two committees of Congress on July 24, 2019, he was asked how he came up with this unprecedented standard and whether it had ever been used before in any case. The special counsel stammered and then replied, “I cannot, but this is a unique situation.”23 This was an evasion. Trump deserved the same presumption of innocence as any American. There were no examples of when it had ever been used before because none exist.
Attorney General Barr recognized that Mueller had queerly mangled the legal process, describing his statement as “actually a very strange statement.”24 Barr told Congress that he had been forced to correct Mueller’s intolerable mistake. “I used the proper standard,” said Barr. “We are not in the business of proving someone did not violate the law—I found that whole passage very bizarre.”25 The attorney general was being polite. It wasn’t just bizarre, it was legally deranged.
If Mueller had adhered to the special counsel regulations, his report would have been brief—not 448 pages long. On “collusion,” it should have been easy to explain his declination decision, stating that no evidence of a conspiracy had been uncovered. Perhaps a short and succinct recitation of the major facts would have been in order. As to the question of obstruction, Mueller decided not to decide. Hence, he should have delivered to Barr a concise explanation of why he had chosen to abdicate his responsibility and simply handed over the evidence files for the attorney general to consider. Nothing more was appropriate, especially not a nearly two-hundred-page obstruction chimera.
Prosecutors do not compose reports for public consumption. They make a binary choice: charge someone or decline to do so without commentary. There is no middle ground. The reason for this should be obvious. It is intrinsically unfair to sully an uncharged individual who has no opportunity to counter the adverse effects that derogatory information can have on that person’s name and reputation. Evidence cannot be challenged in a court of law because no indictment was rendered. Instead, the prosecutor’s one-sided point of view of noncriminal wrongdoing is presented untested in the court of public opinion without a counterbalance from the party who was never charged for lack of evidence or proof. An innocent person can be forever stained by the imputation of suspicious acts. There is little recourse once the stigma sticks.
That did not seem to bother Mueller in the least. He produced a prodigious exegesis of every perceived or imagined sin Trump might have committed—maybe, sort of, if you squint your eyes at just the right angle. As the president’s lawyer Emmet Flood observed, he “produced a prosecutorial curiosity—part ‘truth commission’ report and part law school exam paper.”26 That is a generous portraiture.
Our system of justice is designed to protect the innocent. That is why there are laws that prevent disclosure of grand jury testimony and even more expansive rules at the Justice Department that prohibit prosecutors to disclose negative information about uncharged individuals. Mueller was well aware of that. In the introduction to volume II on obstruction, he recited the duty of prosecutors to be fair by refraining from comment. In the case of a sitting president, wrote Mueller, “The stigma and opprobrium could imperil the President’s ability to govern.”27 In that he was correct.
Ironically, the special counsel then proceeded to ignore his own warning. He produced his own “dossier” on Trump that was filled with suspicions of wrongdoing. He refused to recommend a future indictment of the president in a court of law but was more than willing to indict him in the court of public opinion. His report was a nonindictment indictment. It was calumny masquerading as a report. The special counsel cleverly accomplished it under the guise of providing a “confidential” report to the attorney general, as regulations required. But Mueller knew his report would be made public because political pressures would demand it, and Barr had already acquiesced by pledging transparency during his confirmation hearing.
Rules of professional responsibility and conduct forbid prosecutors to make “extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.”28 Mueller’s report was an accusatory document, albeit not a charging one, that was replete with such extrajudicial comments. Moreover, leaks to the media that claimed Trump was being investigated for obstruction of justice could only have come from the investigators themselves, the special counsel team.
Mueller also demolished other ethical rules. He recklessly abridged the attorney-client privilege by seizing protected documents and then insisted that counsel be questioned (interrogated), thereby invading confidential communications.29 Worse, he relentlessly pursued a “collusion” investigation that he must have known for months, if not a year, was unsupported by the evidence. Hundreds of innocent people were harassed under threat of prosecution, and many were left financially in debt, having been forced to retain lawyers to assist in their defense. One lawyer, offended by those tactics, penned the following description of what Mueller had done in The Federalist:
Consider that 500 Americans were interrogated by federal agents during the probe—one per business day. Imagine federal agents looking through your private email, pictures, and other electronic data. Imagine FBI agents swarming your house with guns drawn. Mueller executed approximately 500 search warrants against our fellow Americans, all to no end.30
Mueller’s Bias Writ Large
Though Mueller’s report is notable for his failure to decide the obstruction issue, it is conspicuous for another, equally egregious, failure. He did not investigate how the Clinton campaign and the Democratic National Committee (DNC) had “colluded” with others, especially Russia, to interfere in the 2016 presidential election.
In the order authorizing Mueller’s appointment, the special counsel was instructed to examine not only “the Russian government’s efforts to interfere in the 2016 presidential election” but “any matters that may arise directly from the investigation.”31 It would have been impossible for Mueller to have studied Russian interference without discovering how the FBI’s “collusion” investigation had originated at the hands of the Clinton campaign and Democrats through financial payments and other surreptitious operations. Yet nowhere in the 448 pages is there a word about how the Clinton campaign and the DNC commissioned Russian disinformation that was fed to Christopher Steele, who, in turn, delivered it to the FBI and more than a dozen members of the media.
There is nothing in the report about the composition of the anti-Trump “dossier” and its alleged Russian sources, how it appears to have been used as a pretext for initiating the FBI’s investigation of the Trump campaign, the extent to which the FISA court was deceived by unverified evi
dence presented to it, the suspected improper surveillance of a Trump adviser, and the source of government leaks that fueled the “collusion” narrative that permeated the public discourse for more than two years. Only a passing reference is made of the notorious “dossier.” The role of Fusion GPS, Glenn Simpson, Nellie Ohr, and others? Apparently written with invisible ink. When confronted about these omissions during his congressional testimony, Mueller either refused to answer or said it was not in his “purview.”32 It should have been. Astonishingly, the special counsel did not seem to know what Fusion GPS is.33
The arrant misconduct and biased decision making by senior FBI officials, including Mueller’s friend James Comey, were also omitted from the Mueller Report. So, too, were the suspect actions of intelligence agencies that appear to have gathered information on the Republican candidate and his associates. Was law enforcement weaponized for partisan advantage in an “attempt to neutralize and denigrate a political opponent,” as Senator Charles Grassley wondered aloud in a Senate floor speech?34 Was the intelligence community, under the supervision of James Clapper and John Brennan, intimately and strategically involved? It is inconceivable that Mueller could have conducted his comprehensive probe without discovering that kind of incendiary evidence. It was hiding in plain sight. He either turned a blind eye to what he saw or chose to remain silent to protect the agency he had once led, as well as his friend Comey. In either case, it was wrong to do so.
Mueller’s anti-Trump bias was writ large throughout his opus. Observations were presented as evidence. Numerous “facts” were inconclusive or untested. Key findings presented by Mueller were later discovered to be false or obscured. For example, Konstantin Kilimnik is identified as working for Russian intelligence. In fact, documents show he was an important source for the US State Department “who informed on Ukrainian and Russian matters.”35 Joseph Mifsud is portrayed as Russian-connected or maybe a Russian agent. In fact, he is neither, but the reader must “wade through the fine print of Mueller’s report” to discover this.36
In another instance, the transcript of a phone call from the president’s lawyer, John Dowd, to the attorney for former national security adviser Michael Flynn was edited by the special counsel to make it appear sinister when, in truth, the full transcript shows it was not.37 Facts and evidence seem to have been massaged in a way most detrimental to Trump. There was no attempt at fairness or objectivity.
This should come as no surprise, given Mueller’s disqualifying conflicts of interest and the team of partisans that he assembled. As explained in detail in The Russia Hoax, Mueller should never have been selected as special counsel. Once the job was offered to him, he was obligated to decline it.
Mueller Should Have Been Disqualified from the Start
The regulations governing Mueller’s appointment prohibited him from serving as special counsel if “he has a personal or political relationship with any person or organization substantially involved in the conduct that is the subject of the investigation or any person or organization which he knows has a specific and substantial interest that would be directly affected by the outcome.”38 The regulation then clarifies that a personal relationship includes “friendships” and is a cause for disqualification if the friendships pose “a close and substantial connection of the type normally viewed as likely to induce partiality.”39
The first conflict was Mueller’s close personal and professional association with fired FBI director James Comey. It is well documented and indisputable that they have been friends, allies, and partners for many years.40 Various publications have profiled their bond as driven by a mentor-protégé relationship, which makes the likelihood of favoritism and partiality self-evident. This represented an acute conflict of interest. Even the appearance of a conflict merited recusal under the law, as well as the rules of professional responsibility to which lawyers must adhere.41
Comey was “substantially involved” in any obstruction investigation of Trump. Indeed, he was the only witness to the alleged Oval Office discussion about the firing of National Security Advisor Michael Flynn and was involved in conversations with the president that led to his termination. That was one part of Mueller’s obstruction of justice investigation of Trump. The other part involved the firing of Comey himself and whether it constituted an obstructive act by the president to interfere with the FBI’s counterintelligence investigation of “collusion” with Russia. In both areas of Mueller’s probe, Comey was an instrumental witness.
By his own admission, Comey was the one who engineered the appointment of his friend as special counsel. When he was fired as FBI director, he improperly removed presidential memos from the FBI building, converted them to his own use, and then purposefully delivered them to a friend to leak to the media. Appearing before the Senate Intelligence Committee in June 2017, he had the audacity to boast about his actions, saying “I thought that might prompt the appointment of a special counsel.”42 It was a typical Comey maneuver—deviously effective.
Clearly, he had a keen interest in the outcome of Mueller’s probe and the potential prosecution of the man who had fired him, Trump. Comey was hardly an innocent or disinterested bystander. More important, Mueller could not be viewed as a neutral party, either. His close friendship with the key witness raised the likelihood of prejudice or favoritism, which is anathema to the fair administration of justice. How could Americans have confidence in the result of Mueller’s investigation if they suspected that the special counsel harbored a bias in favor of the witness testifying against the target? Which man would the special counsel believe? His good friend or the president who had fired his good friend? How could Mueller fairly and impartially assess Comey’s credibility versus Trump’s?
A second conflict of interest that should have forced Mueller’s recusal was his previous service as director of the FBI for twelve years. He had a relationship with an “organization substantially involved in the conduct that is the subject of the investigation. [author’s italics]”43 That disqualified him under the regulation cited earlier. There is no doubt that Mueller felt a strong allegiance to the agency he had once led. Protecting its reputation and its people was a factor. Naturally, he was predisposed to trust the evidence the Bureau had already collected against Trump by the time he assumed the special counsel position. He would also have been predisposed to believe the version of events told by Bureau officials and agents as opposed to that told by Trump, and he might have been inclined to slant facts in favor of the very agency he had overseen in order to protect the interests of the FBI.44 That meant that both the FBI and Mueller had a “specific and substantial interest” in an outcome that he alone would determine. Each had a stake in the result. This is not allowed.
Mueller had no choice but to disqualify himself. The binding regulations afforded him no discretion because the recusal was mandatory in its language. It does not say “may” or “can” or “might.” It states unequivocally that the special counsel “shall” recuse himself in such instances. Mueller ignored it. It is known that Justice Department officials granted him “an ethics waiver to serve as special counsel.”45 They were wrong to do so and equally wrong to cover up the details of how they had reached their decision.
The special counsel regulation contemplates the selection of someone “outside” the Department of Justice, which includes the FBI. It specifically uses that term in the appointment provision.46 Although Mueller had retired from the Bureau, he remained the ultimate “insider.” He had spent years as a top official at the Justice Department and then served as director of the FBI for thirteen years. He knew just about everyone involved in the case. That undermined the whole point of choosing someone who would be impervious to personal influences and institutional prejudices. Mueller was exactly the kind of person the regulations sought to avoid. Many other qualified lawyers in America would have been better suited for the job and could have brought a greater sense of impartiality and legitimacy to the process.
There is
a third reason why Mueller should have disqualified himself: he was interviewed by Trump to possibly return to the FBI as Comey’s replacement just one day before reversing course and accepting the job as special counsel to investigate the president.47 That was extraordinary and ethically problematic. Is it even possible that a discussion about Comey, his aberrant conduct, and the reasons for his firing did not take place during the Trump-Mueller meeting in the Oval Office on May 16, 2017? It quite likely did, especially given Trump’s proclivity to talk openly about Comey’s misconduct. “With obstruction a focus of the investigation, that made Mueller a possible witness in his own investigation,” wrote law professor Jonathan Turley.48 A lawyer is strictly prohibited from being both a prosecutor and a witness in the same case.49 Even if Mueller did not solicit or obtain evidence from the president for the ensuing obstruction investigation, his interaction created the appearance of a conflict of interest, which is also disqualifying.
Incredibly, the Mueller Report dismissed that conflict by suggesting that the Oval Office meeting had not been a job interview at all but a discussion whereby Mueller had offered the president insights and “a perspective on the institution of the FBI.”50 Steve Bannon, a former White House chief strategist, is cited as the source of this statement. There are several problems with this account. First, Bannon was not present at the meeting. Second, when I interviewed the president he pointedly told me he had not been interested in gaining a perspective on the FBI but only in finding a proper replacement for Comey and that Mueller said he wanted the job.51 Third, Trump’s personal secretary, Madeleine Westerhout, who arranged the meeting with Mueller and was privy to its purpose and content, confirmed to me that he had been there for a job interview, nothing else.52 The explanation in the report is not only wrong but self-serving. But all of this is irrelevant. The meeting between the president and Mueller unquestionably occurred the day before he accepted the job to investigate Trump. Even if their discussion was broadly about the institution of the FBI and its future in the wake of Comey’s firing, it makes it more likely that the director’s misconduct and the reasons for his removal were discussed. When he testified before Congress, Mueller was directly asked whether the president discussed with him the firing of Comey. The special counsel replied, “Cannot remember.”53 The ensuing exchange took place:
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