If the surprise ending of the Mueller investigation became a final game show question, it would no doubt be this: Why did the special counsel punt on whether the President obstructed justice?
Good question, no answer. Not yet.
It’s head scratching that Bob Mueller – known as a black-and-white kind of prosecutor – would leave a matter of this importance to someone else, particularly a political appointee like Attorney General William Barr. And an attorney general, no less, who had already opined – totally unsolicited, in a 19-page memo sent to Department of Justice leaders – that the theory of obstruction in this case was “fatally misconceived” and “grossly irresponsible.”
The White House obviously knew how Barr felt. I mean, wasn’t it part of his audition for his current job?
The irony, of course, is that this is not the way the special counsel law was intended to work. The law was supposed to take politics out of any decision-making by appointing a nonpartisan special counsel. Instead, when Barr intervened, he turned the law on its head – deciding there was no obstruction. Of course, as the attorney general, he can do that. Whether he should is another matter entirely.
In Barr’s Cliff Notes four-page version of the Mueller report – with just three short cherry-picked quotes from what may be a voluminous document – he seemed very interested in publicly characterizing Mueller’s apparent quandary. Mueller had written, Barr told us, that there were “difficult issues.” Barr said they were about both “law and fact” concerning whether “the President’s actions and intent could be viewed as obstruction.” Ipso facto, Mueller couldn’t conclude there was a crime, but he also couldn’t say there wasn’t.
So Barr – along with his helpful Deputy Attorney General Rod Rosenstein – took matters into their own hands, feeling that they had given the public an explanation of why Mueller was playing Hamlet. And – surprise, surprise – they came to their own conclusion: no crime of obstruction. This decision may even be more remarkable given the fact that Rosenstein was the one who decided a special counsel was needed in the first place.
Given Barr’s public opinion on the matter, there is no other decision he could have reached. The question is why he felt he had to reach it at all.
“It’s not up to Bill Barr,” former US Attorney Preet Bharara told the podcast Pod Save America. “He’s a direct appointee of the President who’s weighing in. … It didn’t matter much what the facts would show. Bill Barr, right on cue, swoops in to say ‘no crime here.’”
And he gave the President all he needs. A “clean bill of health,” as Trump put it. Barr, hand-picked by Trump, spun a positive political narrative for the President with his letter. We need to see if the report does the same. Given Mueller’s refusal to exonerate the President, it’s likely it won’t.
And by the way, nowhere in the special counsel regulations does it say that the attorney general should make a decision if the special counsel cannot. So why did Barr believe he needed to do so? If his intention was to put the country at ease, it didn’t work. Instead, it put politics precisely where it should not be – in the middle of independent investigation.
Congress is where the politics should play out, not in the attorney general’s office. It’s hard to determine exactly what Mueller had in mind, but here’s a theory: “Mueller said ‘close call, here you go Congress,’” says Michael Zeldin, a CNN legal analyst who has worked with Mueller. “Maybe he intended Congress to take over because while it might not have been obstruction, it could have been abuse of power.”
And a source close to the process tells CNN’s Pamela Brown that maybe the thinking was that while Trump could be legally cleared on obstruction, his character and behavior could not. The source added that perhaps “they wanted to make the point there’s still a cloud hanging over him, but not a criminal one.”
As far as Trump is concerned it’s all sunny skies. But the public needs to hear – and see – more. Mueller, the most private public figure in Washington, remains a mystery. Why did he punt the ball? Did Mueller really intend to pass the buck to Congress, only to have Barr intervene? Was there internal disagreement among his team of prosecutors about what to do? Did Mueller want to subpoena the President and instead got shot down informally? Did Mueller and company feel that, without a presidential interview, they couldn’t determine intent?
Mueller may not want to tell us, but his full report can give some clues. And the American public – and the Congress – will just have to play detective.
CNN’s Brian Rokus contributed to this report.