The Monday morning quarterbacks are out to get Robert Mueller.
Fresh off the revelation that the special counsel decided to skirt the question of whether Donald Trump obstructed justice in the Russia probe, Mueller is getting hit with abrupt criticism over his decision not to press more forcefully for an in-person interview with the president.
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The second guessing is a new phenomenon. For nearly two years, Democratic lawmakers and legal experts appeared largely willing to give the widely respected former FBI director the benefit of the doubt over his handling of the politically sensitive probe.
But the dynamic changed in the wake of Attorney General William Barr’s decision Sunday to publicly release his summary of Mueller’s work. The four-page document’s topline findings explained that Mueller had not found any Trump campaign conspiracy to work with the Russians and that the special counsel opted to not say definitively whether the president obstructed justice, choosing instead to lay out the evidence on both sides.
Suddenly, Democrats and the legal community seemed freer to question the special counsel’s tactics. In addition to the interview critique, others accused Mueller of failing to even fulfill his directive by punting on the obstruction of justice question.
But one element that Democrats in particular are hammering is Mueller’s approach to a possible sit-down with Trump himself.
“I’ve said this all along: It was a mistake to rely on written responses by the president,” House Intelligence Chairman Adam Schiff said Sunday on ABC’s “This Week,” adding that the concession Mueller made to only accept written answers meant he was hearing “generally more what the lawyer has to say than what the individual has to say.”
“Why not a subpoena for Donald Trump?” echoed Sen. Richard Blumenthal (D-Conn.) on MSNBC. “I have great respect for Bob Mueller, but I said from the very start that Trump has to be interviewed under oath just as other presidents have been before.”
Senate Minority Whip Dick Durbin agreed, telling the Associated Press that “it would have been helpful” for Mueller to question Trump in person. “Certainly, no president wants to go through that, remembering what happened to Bill Clinton,” the Illinois Democrat added in reference to the former president whose testimony under oath before a grand jury in the Kenneth Starr investigation led to his impeachment on charges of perjury and obstruction of justice.
The criticisms could presage a growing narrative in the coming weeks, as Capitol Hill Democrats push for hearings on Mueller’s findings and lean on the Justice Department to hand over more information about the investigation into whether Trump broke the law by meddling in the underlying Russia probe.
According to a CNN report on Sunday, the special counsel’s office engaged in lengthy conversations about subpoenaing the president for testimony, a debate lawmakers will inevitably ask about in the weeks to come.
Trump and his lawyers ultimately prevailed in their showdown with Mueller over the special counsel’s demand for an interview. But that came after a lengthy and drawn out fight that included both private negotiations and the president’s own public flip-flop on the question.
In the spring of 2017, Trump said he would “100 percent” sit for testimony under oath about alleged Russian ties to his campaign. But by early 2018, Trump’s lawyers and allies were warning him that answering questions in person in such a high-pressure moment could get him in trouble. Instead, they urged him to try a different strategy with the special counsel.
“The president could assert his Fifth Amendment privilege and tell Mueller to shove it,” Roger Stone, one of Trump’s longtime associates, told POLITICO last February.
Like many others around the president, including former House Speaker Newt Gingrich, Stone urged the president to offer the special counsel the chance to review his written questions. “I think there can be a reasonable compromise. I recognize the political and legal danger of just stiffing the guy,” said Stone, who was later indicted by Mueller for lying to Congress about his attempts to contact WikiLeaks during the election.
Mueller’s team initially rejected Trump’s written interview pitch. But by the end of last year, their opposition appeared to have faded after the president’s lawyers indeed submitted written responses.
Rudy Giuliani, the president’s personal lawyer, said in an interview last Thursday the fight over an in-person interview “got resolved months ago.” He added that Mueller never followed up in any substantive way seeking more information from the president after the written answers were filed.
“I can’t speak for him and tell you he was satisfied with the answers, but he never seriously raised any issue with them,” Giuliani told POLITICO.
Even if there were extensive internal discussions about subpoenaing the president, the special counsel never formally proposed the move. Barr said every major action Mueller proposed was approved. If the special counsel’s supervisors had nixed such a desired move, Barr would have had to report it to Congress at the conclusion of the probe.
Looking back on the interview showdown, the emerging Mueller critics are signaling plans to press for more answers on the internal debate over whether to pursue the presidential sit-down.
“I can certainly understand why the lawyers like Giuliani were fighting this because this president is someone who seems pathologically incapable of telling the truth for long periods of time,” Schiff said. “But nonetheless, if you really do want the truth, you need to put people under oath, and that should have been done.”
Renato Mariotti, a former federal prosecutor from Chicago and frequent Mueller probe pundit, said he, too, would have kept pushing for a Trump interview.
“I would not have concluded an obstruction of justice investigation without at least trying to interview Trump,” Mariotti said in an email. “It’s unclear to me why Mueller did so, and Congress should conduct oversight to determine how and why the decision not to subpoena Trump was made.”
Others reject such critiques, noting that had Mueller pursued a presidential subpoena, it would have kicked off a lengthy legal battle with no guarantee of success, given the Supreme Court’s new conservative-leaning majority. The special counsel was also under intense public pressure to wrap up his probe as swiftly as possible as the 2020 presidential race inched ever closer.
Legally, too, it’s an unorthodox move to press for an interview with an investigation’s subject and expect that person to admit, under oath, to corrupt motivation or knowledge of breaking a law.
“It is a stupid, pathetic argument,” said Sol Wisenberg, a former deputy to independent counsel Kenneth Starr who participated in the grand jury questioning of Clinton in 1998. “Trump was never going to sit for an interview with Mueller on obstruction. He would have claimed executive privilege or taken the Fifth in the unlikely event he lost the Executive Privilege fight.”
Julian Epstein, a chief counsel for House Judiciary Committee Democrats during the Clinton impeachment fight, said the recent burst of questioning over Mueller’s decision on forcing a Trump interview “helps medicate hard feelings but serves little purpose.”
“Sure, Mueller could have leaned in more forcefully on the subpoena, but to what end?” he added. “This is a president that would have no qualms about an extended legal standoff on a subpoena battle that could have latest months or years. And if Mueller didn’t think he had the goods on conspiracy with the Russians, he is then mostly left with an obstruction case, which is more tricky to prove than most every-day commentators realize.”
With the advantage of hindsight, several former federal investigators said they understand why Mueller settled for written responses.
“Given what we know now, it is hard to consider the obstruction investigation complete without Trump’s testimony,” Julie Myers Wood, another former Starr deputy, said in a Reddit “Ask Me Anything” chat that POLITICO hosted on Monday.
Trump’s written answers and all of his public statements about the Russia case, she added, “may be compelling and provide context for why these aggressive prosecutors did not push harder to interview Trump.”
Randall Samborn, a former senior DOJ aide on the George W. Bush-era special counsel investigation into how CIA operative Valerie Plame had her identity leaked, said on the Reddit chat that Mueller’s decision looked like the obvious one.
“Mueller simply made a strategic decision at some point not to subpoena the President and engage in a year or more of litigation that not only would have delayed completing his mission, but would risk an adverse ruling in the Supreme Court with consequences lasting well beyond the Trump presidency,” he said.