In his new book, “Where Law Ends: Inside the Mueller Investigation”, the chief lieutenant on Mueller’s special counsel team, Andrew Weissman, writes that in a fateful meeting, the team pressed Mueller to subpoena Trump. They pleaded with him not to pull his punches, and to treat Trump and his family like any other criminal defendants in the United States.
As Weissman says, by the end of the meeting, he and his crestfallen colleagues could tell that they had failed to convince Mueller.
No. Mueller would allow his obsession with following a DOJ internal policy letter to overcome his broader knowledge of historic context and constitutional law, and would decide not to subpoena Trump, not to indict Trump, not to meet the challenge of history, despite the vocal urging of top constitutional law experts like Laurence Tribe.
With time, we also now know that in addition to the shortcomings listed below, he failed entirely to investigate counter-intelligence leads because of a misunderstanding and belief that the FBI would do this! He also failed to follow the money, a bad idea, we are now learning, as we see a window into Trump’s taxes and finances.
Sometimes even great and admirable men fail to meet a specific challenge. I got heavily criticized on this blog for daring to criticize Mueller at the time. Here is what I wrote on April 19, 2019:
by Terry McGinty
Published, April 19, 2019
The reason I continue to believe that people are being far too deferential to Robert Mueller, is that his treatment of the other players in the Trump-Russia conspiracy bears no resemblance to how ordinary people are treated in my courts every day on issues of both obstruction AND conspiracy.
Mueller decided not only to stick to the DOJ rule against indicting a sitting president -despite everything that Trump is openly doing to undermine the rule of law – but also to treat Trump, Jr. and Kushner with kid gloves compared to the treatment ordinary people receive in our courts, and then to be silent on that outrageous contrast. Kushner and Trump, Jr. are not, to my knowledge, presidents of the United States.
I understand that Mueller is a stickler and that he carefully explained his standards that viewed as his legal restraints, but even highly intelligent non-lawyers can not be expected to immediately understand or know just how distant Trump’s treatment is from that of everyday people. So let me tell you.
And when when I refer to “treatment” ordinary people receive in our courts, I am referring to two particular things:
1. Prosecutors prove the existence of conspiracies every single day in our courts through circumstantial evidence and through inference and common sense about what they contend had to have been in the minds of conspirators.
So for Mueller to insist that anything short of direct proof of actual knowledge by Trump, Jr. and Kushner of their own criminality at the time of their conduct at Trump Tower is not sufficient to demonstrate a conspiracy, is applying a kid-gloves standard that the rest of us do not get in court; and
2. Every day in our courts prosecutors go forward with cases against people when a case meets a probable cause standard (50%+ likelihood) but it is not clear whether a jury or judge will decide it meets a beyond a reasonable doubt standard.
So even if Mueller has (inexplicably in my view) decided that he’s constrained to slavishly adhere to this internal DOJ rule because of either respect for internal DOJ norms or traditions or because of constraints of the Special Counsel statute with regard to Donald J. Trump, why on earth is he not treating Trump, Jr. and Kushner the way the rest of us would be treated?
Some surprises still may coming in terms of prosecutions, but on balance it appears that Mueller may not have applied his full ability to view his role in full historic context nor lived up to his obligations to our nation and to the preservation of the rule of law against corruption.
Mueller has to have known that he would be played by Barr. He knows him well. He knows of his ‘Job Application Memo’ regarding his wild views of the powers of the president. He knows why Barr was hired. Yet he allowed two years of work to be distorted in the public mind for weeks on end.
Will Mueller surprise us when he testifies? Will he surprise us in the prosecution cases that have been farmed out to other federal prosecution offices?
Time will tell. It’s not over. But it does not look good from the perspective of one lowly defense lawyer who is familiar with how corruption works around the world.”
Remember. The words over the Supreme Court building in Washington do not read:
“Rules Above Law and Justice”.
“Equal Justice Under Law”.