Introduction

Few have taken the time to read the complete report, relying instead on newspaper headlines and TV interviews. The report is divided in two volumes: the first is on Russian interference and the second focuses on whether Trump obstructed justice. I have taken the time to read the second volume. This has led me to the thoughts presented below.

The Changing Role of the Special Counsel

As Olivia Waxman points out, it is a mistake to think that Mueller had the same responsibility as Ken Starr or before him Special Prosecutor Archibald Cox. In 1978, Congress passed the Ethics in Government Act that says the Independent Counsel “shall advise the House of Representatives of any substantial and credible information which such independent counsel receives, in carrying out the independent counsel’s responsibilities under this chapter, that may constitute grounds for an impeachment.” In Starr’s case, Congress voted to make the report public. But people were troubled about the length and details made public by Starr.

The 1978 statute expired in 1999. In place of the old statute, the Department of Justice enacted internal regulations for a Special Counsel’s work. Those regulations included giving the Attorney General more power. They say:

“At the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.”

It also says the Attorney General “may determine that public release of these reports would be in the public interest.

To me, it seems odd that the Attorney General has been given these powers. After all, at least a major part of this investigation focuses on the President, and the Attorney General is in the President’s Cabinet. Inasmuch as Congress has an oversight responsibility, it would seem far more reasonable to place this power in the Congress.   

On Cover-Up – Key Sections in the Mueller Report and Their Significance

The anti-Trump pundits have focused on Mueller saying he did not “exonerate” Trump:

…we did not draw ultimate conclusions about the President’s conduct. The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment.

But Mueller goes on to say much more:

After the appointment of the Special Counsel, this Office obtained evidence about the following events relating to potential issues of obstruction of justice involving the President:

(a) The President’s January 27, 2017 dinner with former FBI Director James Comey in which the President reportedly asked for Comey’s loyalty, one day after the White House had been briefed by the Department of Justice on contacts between former National Security Advisor Michael Flynn and the Russian Ambassador;

(b) The President’s February 14, 2017 meeting with Comey in which the President reportedly asked Comey not to pursue an investigation of Flynn;

(c) The President’s private requests to Comey to make public the fact that the President was not the subject of an FBI investigation and to lift what the President regarded as a cloud;

(d) The President’s outreach to the Director of National Intelligence and the Directors of the National Security Agency and the Central Intelligence Agency about the FBI’s Russia investigation;

(e) The President’s stated rationales for terminating Comey on May 9, 2017, including statements that could reasonably be understood as acknowledging that the FBI’s Russia investigation was a factor in Comey’s termination; and

(f) The President’s reported involvement in issuing a statement about the June 9, 2016 Trump Tower meeting between Russians and senior Trump Campaign officials that said the meeting was about adoption and omitted that the Russians had offered to provide the Trump Campaign with derogatory information about Hillary Clinton.

Mueller then concludes:

Taking into account that information and our analysis of applicable statutory and constitutional principles (discussed below in Volume II, Section III, infra), we determined that there was a sufficient factual and legal basis to further investigate potential obstruction-of-justice issues involving the President.

Conclusion

These statements were not written for the Attorney General. They were written for the Congress. We will soon see what, in exercising its oversight responsibilities, it does with this information.