There have already been comments on Ethics Alarms regarding Robert Mueller’s surprise public statement to, I assumed, clarify some things being muddled in the political grandstanding and media mush. Frankly, I am not certian what he thought he was doing, but my suspicions aren’t pretty. The statement was either unethical, or incoherent. Just so we are on the same page, here is the full statement. I’ll be back at the end…
Good morning, everyone, and thank you for being here. Two years ago, the acting attorney general asked me to serve as special counsel and he created the special counsel’s office. The appointment order directed the office to investigate Russian interference in the 2016 presidential election. This included investigating any links or coordination between the Russian government and individuals associated with the Trump campaign.
Now, I have not spoken publicly during our investigation. I am speaking out today because our investigation is complete. The attorney general has made the report on our investigation largely public. And we are formally closing the special counsel’s office and as well, I’m resigning from the Department of Justice to return to private life.
I’ll make a few remarks about the results of our work. But beyond these few remarks, it is important that the office’s written work speak for itself.
Let me begin where the appointment order begins, and that is interference in the 2016 presidential election. As alleged by the grand jury in an indictment, Russian intelligence officers who are part of the Russian military launched a concerted attack on our political system.
The indictment alleges that they used sophisticated cyber-techniques to hack into computers and networks used by the Clinton campaign. They stole private information and then released that information through fake online identities and through the organization WikiLeaks. The releases were designed and timed to interfere with our election and to damage a presidential candidate. And at the same time as the grand jury alleged in a separate indictment, a private Russian entity engaged in a social media operation where Russian citizens posed as Americans in order to influence an election.
These indictments contain allegations and we are not commenting on the guilt or the innocence of any specific defendant. Every defendant is presumed innocent unless and until proven guilty.
The indictments allege and the other activities in our report describe efforts to interfere in our political system. They needed to be investigated and understood. And that is among the reasons why the Department of Justice established our office.
That is also a reason we investigated efforts to obstruct the investigation. The matters we investigated were of paramount importance. It was critical for us to obtain full and accurate information from every person we questioned. When a subject of an investigation obstructs that investigation or lies to investigators, it strikes at the core of their government’s effort to find the truth and hold wrongdoers accountable.
Let me say a word about the report. The report has two parts, addressing the two main issues we were asked to investigate.
The first volume of the report details numerous efforts emanating from Russia to influence the election. This volume includes a discussion of the Trump campaign’s response to this activity as well as our conclusion that there was insufficient evidence to charge a broader conspiracy.
And in the second volume, the report describes the results and analysis of our obstruction of justice investigation involving the president. The order appointing me special counsel authorized us to investigate actions that could obstruct the investigation. We conducted that investigation and we kept the office of the acting attorney general apprised of the progress of our work.
And as set forth in the report, after that investigation, if we had had confidence that the president clearly did not commit a crime, we would have said so. We did not, however, make a determination as to whether the president did commit a crime.
The introduction to the Volume 2 of our report explains that decision. It explains that under long-standing department policy, a president cannot be charged with a federal crime while he is in office. That is unconstitutional. Even if the charge is kept under seal and hidden from public view, that, too, is prohibited.
A special counsel’s office is part of the Department of Justice, and by regulation, it was bound by that department policy. Charging the president with a crime was therefore not an option we could consider. The department’s written opinion explaining the policy makes several important points that further informed our handling of the obstruction investigation. Those points are summarized in our report and I will describe two of them for you.
First, the opinion explicitly permits the investigation of a sitting president because it is important to preserve evidence while memories are fresh and documents available. Among other things, that evidence could be used if there were co-conspirators who could be charged now.
And second, the opinion says that the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.
And beyond department policy, we were guided by principles of fairness. It would be unfair to potentially — it would be unfair to potentially accuse somebody of a crime when there can be no court resolution of the actual charge.
So that was Justice Department policy. Those were the principles under which we operated. And 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.
We conducted an independent criminal investigation and reported the results to the attorney general, as required by department regulations. The attorney general then concluded that it was appropriate to provide our report to Congress and to the American people. At one point in time, I requested that certain portions of the report be released and the attorney general preferred to make — preferred to make the entire report public all at once and we appreciate that the attorney general made the report largely public. And I certainly do not question the attorney general’s good faith in that decision.
Now, I hope and expect this to be the only time that I will speak to you in this manner. I am making that decision myself. No one has told me whether I can or should testify or speak further about this matter.
There has been discussion about an appearance before Congress. Any testimony from this office would not go beyond our report. It contains our findings and analysis and the reasons for the decisions we made. We chose those words carefully and the work speaks for itself. And the report is my testimony. I would not provide information beyond that which is already public in any appearance before Congress.
In addition, access to our underlying work product is being decided in a process that does not involve our office.
So, beyond what I’ve said here today and what is contained in our written work, I do not believe it is appropriate for me to speak further about the investigation or to comment on the actions of the Justice Department or Congress. And it’s for that reason I will not be taking questions today, as well.
Now, before I step away, I want to thank the attorneys, the FBI agents, the analysts, the professional staff who helped us conduct this investigation in a fair and independent manner.
These individuals who spent nearly two years with the special counsel’s office were of the highest integrity. And I will close by reiterating the central allegation of our indictments, that there were multiple systemic efforts to interfere in our election.
And that allegation deserves the attention of every American. Thank you. Thank you for being here today.
My analysis of this will be mercifully brief.
1. Mueller said that his statement was to announce that the investigation was over. That part of the statement could have been completed in about two sentences.
2. One may conclude that the statement was also designed to deny recent reports in the news media that he had begun drawing up an indictment of President Trump, but changed his mind. Mueller is clear on that, at least: he could not indict the President, and would not, so he obviously didn’t start drafting what he could not use.
3. Mueller said that the report speaks for itself and nothing else needs to be said. Then he set out to further frame the report. He contradicted himself blatantly in this, and undermined whatever credibility he has. His credibility with me instantly fell with that statement.
4. Mueller said,
“And beyond department policy, we were guided by principles of fairness. It would be unfair to potentially — it would be unfair to potentially accuse somebody of a crime when there can be no court resolution of the actual charge.”
Yet earlier in the same statement, he phrased his words to sound like he was potentially accusing the President of a crime:
“And as set forth in the report, after that investigation, if we had had confidence that the president clearly did not commit a crime, we would have said so.”
If Mueller says he and his team did not have confidence that the President did not commit a crime, then by his words, that is the same as saying that he may have committed a crime, an which is what a “potential accusation of a crime” means, by my dictionary. Mueller had just said that doing what he just did is unfair.
It sure is. In fact, it’s a serious breach of prosecutor ethics. D.C. Rule of Professional Conduct 3.6 states,
The prosecutor in a criminal case shall not:
(f) Except for statements which are necessary to inform the public of the nature and extent of the prosecutor’s action and which serve a legitimate law enforcement purpose, make extrajudicial comments which serve to heighten condemnation of the accused
Not only is that what Mueller’s statement did, it appears hard to believe that this wasn’t what it was designed to do. DOJ’s formal policy manual on the duties of federal prosecutors and principles of federal prosecutionsa lso explicitly forbid what Mueller did today:
“As a series of cases makes clear, there is ordinarily ‘no legitimate governmental interest served’ by the government’s public allegation of wrongdoing by an uncharged party, and this is true ‘regardless of what criminal charges may . . . b[e] contemplated by the Assistant United States Attorney against the [third-party] for the future.”
It is not the prosecutor’s job to prove anyone innocent. Everyone is presumed innocent under the law. Yet Mueller, even after making a point of saying that indicted Russians should be presumed innocent, phrased his statement about obstruction of justice in order to suggest that the President was guilty because his team couldn’t pronounce him not guilty.
Mueller’s statement confirmed what his harshest critics had claimed, and what I had previously refused to believe. He was a politically motivated, unethical prosecutor who desperately tried to give the Democrats what the needed to impeach the President, and could not make the case. Finally, he tried to do what he could to satisfy his disappointed allies through innuendo and an unethical, extra-legal framing of his report.