Jurisprudence

How Robert Mueller Failed Us

The special counsel’s much-praised secrecy turns out to have been a mistake.

Robert Mueller walks in Washington.
Robert Mueller in Washington on Sunday.
Tasos Katopodis/Getty Images

I have from the very beginning been skeptical of special counsel Robert Mueller’s approach of not directly providing accurate, real-time information to the American people about his investigatory progress and conclusions. Sunday’s events strongly confirm my views. Mueller’s nearly two-year news blackout, while inexplicably praised and admired by the news media, has severely harmed justice and democracy. It prevented all of us from knowing and deliberating and making judgments about the facts and circumstances as we considered vital matters that go to the very essence of our government, and invited both Republicans and Democrats to spin their own stories in the information vacuum.

Mueller has been lauded as a disciplined, monklike Sphynx of a prosecutor, staying quiet as he and his team diligently investigated Russian interference and the president’s possible role in it. All the while, his investigation has been trashed relentlessly by the ostensible target of its probe, President Donald J. Trump, who repeatedly called the Mueller probe a “Witch Hunt” and a “hoax” and labeled Mueller’s team as 13 (and then 17) “angry Democrats.” Trump’s legal and political teams amplified this message. And yet the Mueller team never fought back, instead letting its work in court and behind the scenes speak for itself. This was a big mistake.

Mueller and his team never held a single press conference to explain what they were doing or their thinking and strategy, let alone the basis of their convictions, guilty pleas, and indictments, respectively, against Paul Manafort, Michael Flynn and Rick Gates, Roger Stone, and others. They let Deputy Attorney General Rod Rosenstein, who appointed Mueller, announce and supposedly explain indictments and other actions by their office, but he seemed to go out of his way to downplay any broader significance and to avoid providing context, which diluted the value of the information for public understanding.

You might say those indictments spoke for themselves, but if you were surprised to read the conclusions in Attorney General William Barr’s letter on Sunday, or have many follow-up questions, then maybe they did not. Mueller kept us all in suspense and in the dark as voters and citizens, whatever our political views, about major issues of public concern and importance—including whether the president of the United States and his campaign and compatriots conspired with a foreign adversary to corrupt a presidential election and obstruct investigations aimed at that possible crime.

The spokesman for the Mueller investigation, Peter Carr, has been a no-comment machine.
He has basically spoken only once—to dispute a story from BuzzFeed that was largely correct, giving a nice boost to Trump. Other than that, Mueller let Trump and his legal team and surrogates set the terms—either collusion or “no collusion”—and attack the Office of Special Counsel with impunity, undermining public confidence in our justice system.

On Friday, Mueller ceded ultimate authority and at the same time left us in the dark. Rather than holding a press conference to explain what he has been doing, what he has concluded and why, Mueller simply sent his report to Barr, who once wrote a memo explaining why Trump had not obstructed justice when he fired former FBI Director James Comey. Then Mueller checked out.

On Sunday, Barr delivered to Congress a four-page letter characterizing Mueller’s report but leaving much to the imagination. Mueller went to church across the street from the White House and said nothing. Based on Barr’s letter, Trump and his team gleefully claimed, without any apparent fear of response from Mueller, “total and complete exoneration,” even though Mueller’s report, according to Barr’s own terse summary, explicitly said that the finding “does not exonerate” Trump.

It didn’t have to go down like this. Instead of remaining silent and secretive for almost two years, Mueller and his prosecutorial team could have acted more like the Justice Department itself does in ordinary times, holding press conferences and briefing reporters on background, explaining their decisions to indict and not indict and helping us all understand what was going on in this tense, intense investigation that goes to the very heart of how we govern ourselves and protect our electoral system. Mueller could have, and should have, stood before reporters and the American people to announce and explain his conclusions so we could all consider and debate their validity.

Prior investigations of presidents, by independent counsels Lawrence Walsh and Kenneth Starr, for example, who were criticized for their many public statements and voluminous public reports, may have caused Mueller to take his silent man approach, but he went too far. We needed to hear from him. We needed him to tell us what we could expect and fear, what was true and what was imagined as things unfolded in real time. As the Supreme Court said many years ago, “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”

It is not too late. We need to see the full Mueller report as soon as possible and hear from Mueller himself as to what led him to his conclusions and why he reached them.