Did special counsel Robert Mueller punt on the question of whether President Donald Trump obstructed justice?
It certainly seems that way. Although we haven’t seen Mueller’s full report, Attorney General Bill Barr’s summary of it states that the special counsel “did not draw a conclusion — one way or the other — as to whether the examined conduct constituted obstruction.” But Barr wrote that he and Deputy Attorney General Rod Rosenstein concluded that there wasn’t sufficient evidence for obstruction charges.
After nearly two years of investigating, it’s surprising that Mueller was unable or unwilling to make a decision about obstruction. So why didn’t he?
Was there just not enough evidence? Was there no evidence at all? Or did Mueller simply not want to make such a monumental decision?
Those are some of the questions I put to Preet Bharara in a recent interview. Bharara is a former US attorney for the Southern District of New York and the author of a new book, Doing Justice.
In May 2017, Trump fired Bharara after he refused to step down when then-Attorney General Jeff Sessions asked him to. Bharara has since become an outspoken critic of the Trump administration, hosting a popular podcast and appearing regularly on cable news to discuss the Mueller investigation.
Bharara and I spoke about Barr’s performance so far, why he thinks Mueller punted the decision on obstruction of justice to Barr and Congress, and why Bharara went out of his way to avoid writing about Trump in his book.
A lightly edited transcript of our conversation follows.
I want to discuss your book, but we have to address the giant elephant in the room first. What was your reaction to Attorney General Bill Barr’s summary of Mueller’s report?
My reaction was the same as a lot of people’s reaction. I thought the summary was too short, that it was issued too quickly, and that Barr seemed too eager to frame the entire report in the public’s mind. I think a lot of people in Congress have good reasons to want to see the rest of the report.
As for the actual contents of Barr’s summary, the news that Mueller did not find that anyone in Trump’s campaign colluded with Russia is really significant for the president, and pending a review of the actual report, that seems to be a matter that’s closed.
The obstruction of justice question is different. The special counsel may be done with this, but the matter is very much open for discussion and potential action by another branch of government — because clearly, even by the terms of Barr’s own seemingly sanitized summary, the special counsel found substantial evidence of obstruction such that it was a close call as to whether or not to bring a criminal case.
That’s a fairly extraordinary thing.
Were you surprised that Mueller refused to reach a conclusion on the obstruction question?
I was. Like most people, I was expecting some finality and some decision-making on his part. I’ve run a prosecutor’s office, and in an ordinary case against an ordinary citizen, the question of whether or not to charge someone is an extremely close call with evidence and arguments on both sides. You try to give the benefit of the doubt to the defendant, but it’s always a tough decision and there are lots of factors to weigh.
But this is obviously not a normal case, and the president is not an ordinary citizen.
How does that change Mueller’s calculus?
I suspect that Mueller believed the buck shouldn’t stop with him or the special counsel’s office. He understands that there’s another constitutionally prescribed mechanism for addressing bad conduct on the part of the president, namely Congress. But even though he didn’t make a decision to charge, it seems unquestionable that he discovered some bad conduct.
Is that actually unquestionable? Do we know that he discovered bad conduct if he declined to reach any definitive conclusions?
Well, taking Barr’s summary at face value for now, Mueller was very clear on the contrast between the collusion part and the obstruction part. When he didn’t see the evidence for collusion or coordination with the Russians, he was able to say that clearly. The fact that he couldn’t say that on the obstruction question, that he could neither charge the president with a crime nor exonerate him, means that there’s something there and more work for other people to do.
Look, I’m more than happy for everyone to move on from things about which the special counsel made a conclusion — on the collusion question, for instance. But based on what I can tell, Mueller decided that a direct appointee of the president, Bill Barr, who already is on the record before even knowing the facts as saying that the president can’t be liable for obstruction, should decide the next step.
In other words, Mueller recognized the weight of this decision and decided to punt on the obstruction question?
I think punting is the right analogy, but I’d add something to what I just said. I think you’re right that Mueller recognized the weight of this decision and he ultimately punted it to Congress, but then Bill Barr rushed onto the field, took the ball, and scored a touchdown for Donald Trump.
Perhaps Mueller thought, “Well, when it’s a tough, high-stakes call like this, people are not going to have faith and trust in a definitive decision I make. It’s best handled by a political process that’s laid out in the Constitution.” And I don’t want to criticize that decision. This is not a random process. It’s been done before, and Congress can — and maybe should — handle it.
But again, Barr swept in and put his own imprimatur on it — while delaying the disclosure of the full Mueller report — causing his framing of it to be imprinted on the minds of lots and lots of people, and it may stay that way because the report may not come out for a long time.
You used to run the SDNY office. Where do you see their investigation into Michael Cohen and Trump’s hush money payments involving Stormy Daniels and Karen McDougal going?
I’m going to resist the urge to comment on that, because I honestly just don’t have access to the facts and I’m not part of the investigation. It could lead to additional charges. It could lead to potential legal jeopardy for the president. It could also lead to nothing. We’ll have to wait and see how it develops.
You make a deliberate effort to not write explicitly about Trump in your book — even though his shadow looms over the whole thing, in the way Trump looms over every discussion about the law and politics these days. Why did you go out of your way to do this?
You took my answer right out of my mouth. Trump looms over the book in the same way he looms over everything in the country and in the world right now. I don’t believe Trump’s name was uttered at John McCain’s funeral, and yet his shadow was felt there, because anytime you talk about decency or honor or truth, people think you’re criticizing the president.
In my own book, I thought it was useful for a change to avoid Twitter-like barbs and analysis and go back to basics and ask questions like: What is justice? How is it done? What’s the proper way to think about being fair? And what’s the ideal way to accomplish those things? Does truth matter? How do you resolve disputes? What model is there for the law?
I wanted to explain all this through stories that have nothing to do with Donald Trump, and hopefully give people a model for how justice should be done, and maybe also show how far we’ve fallen from some of our core ideals.
But the model you offer is not just for the criminal justice system, right? A recurring theme of the book is that the ideals and values driving the Justice Department are a kind of model for how our broader political system should work.
I look at this moment, though, and genuinely wonder how many citizens are actually committed to the rule of law. It seems to me a lot of people — and politicians — are willing to abandon this principle as soon as it’s politically expedient. Does that worry you?
It worries me a great deal. It’s one of the reasons I wrote the book. Everything is so charged that people are often substituting their political preference for calm and reasoned assessment of evidence and proof and law. And that hurts all of us.
Anybody who chants, “Lock him up,” or, “Lock her up,” without knowing all the facts just because you don’t like that person’s policies, whether it’s Hillary Clinton or Donald Trump or anyone else, that’s a retreat from fundamental rule of law values in this country. And yes, I think we should all be worried about that.
I worry that one of the lessons of the last few years is that the institutions supporting the rule of law in America are deeply vulnerable to an overreaching president. And I really don’t intend that as a shot at Trump in particular. I’m not aware of any laws he has broken, but his disdain for the rule of law as a check on power is pretty clear. If nothing else, he has exposed how much our system really does depend on the goodwill of the people in power.
Do you see the performance of the Department of Justice over the last two years as a testament to the strength of our legal institutions? Or is it an indication of how weak and contingent they are?
I think it’s both. I think on the one hand, you have the daily grind of work that people in the DOJ are doing every day — doing their murder cases, their public corruption cases, their mafia cases, their terrorism cases. All of this is a testament to their apolitical commitment to their job and to rule of law in this country.
On the other hand, you see how there is risk when you allow the normalization of certain kinds of conduct, like a president asking the FBI director, “Can you lay off Michael Flynn?” The FBI director didn’t do that, obviously, but that it happened at all is a threat and we should take it seriously. If we didn’t have people in place strong enough to resist these sorts of influences, we’d be in much worse shape today.
And in different circumstances, with different people in place, things could have gone very differently. So yes, there are reasons to be concerned and vigilant, but that’s always been the case. Sometimes the threats are just more apparent.
In the end, your book is a reminder that the law or any institution is as good as the people that make it up. Are you confident that our justice system will continue to hold?
Absolutely. But we can’t be complacent. Just because things have not gone completely off the rails doesn’t mean that we shouldn’t worry about the train. One of the reasons I wrote the book and do my podcast, and the reason I appreciate all the voices out there talking about truth and reason and law, is that it helps keep us on track.
But things can go south pretty fast. It’s true that we’re a nation of laws, not men, but it’s people who interpret the law and enforce the law, and things ultimately stand or fall on their judgment. The Constitution means nothing if the people charged with enforcing it don’t care about it.
So yes, values and laws and ideals matter, but it always comes down to people.