|COLIN ANDERSON / THE ATLANTIC|
To say that a lot of people were disappointed with Robert Mueller is an understatement.
Okay, the guy wasn't the superman we had pumped him up to be. But in my bend-over-backwards effort to be fair, I believed that the special counsel's shortcomings were tempered because his legal remit, including a bar on indicting a sitting president, was limited.
Still, Donald Trump has gotten away with nary a scratch from his collusion with Vladimir Putin's cyberwarriors, which greased the skids for his "victory" in 2016, a devious path that he has tried to go down again in the Ukraine scandal, and that has not sat well.
Robert Barr's slimy veneer of whitewash over Mueller's final Russia scandal report has been cited as a key element in Trump's escape act, and the attorney general did indeed divert attention from more damning aspects of the 448-page report, including 10 instances in which Mueller concluded that the president tried to obstruct justice.
But the special counsel is now back on the hook -- and deservedly so -- not because of ongoing impeachment hearings, which on Wednesday produced highly damaging public testimony that Trump knew exactly what he was doing in trying to extort Ukraine President Volodymyr Zelensky to manufacture dirt on the Bidens, but a side drama that has played out a few block from the Capitol at a federal courthouse where the Roger Stone trial began wrapping up with final arguments later in the day.
Long story short, the final prosecution witness against Stone, self-proclaimed Republican dirty trickster and the longest of Trump's longtime advisers, was former Trump campaign advisor Rick Gates, who testified that Trump may have been aware of WikiLeaks' methodical release of damaging emails hacked by a Russian intelligence service and of Stone's efforts to present himself as a backchannel to the so-called ant-secrecy group.
Trump, having refused a face-to-face interview with Mueller after months of jousting that in retrospect was ridiculous, told him in writing that he did "not recall" being aware of communications between WikiLeaks and Stone, Gates or his former campaign chairman Paul Manafort.
But Gates testified that Trump "indicated that more information would be coming" after getting off a call with Stone in July 2016 and said he received a directive from Manafort to check in with Stone about information incoming from Wikileaks and that other people from the campaign would be updated, "including the candidate."
Mueller handed off the indictment of Stone to other prosecutors, who charged him with witness tampering, obstructing an official proceeding, and five counts of making false statements to the House Intelligence Committee about his relationship with WikiLeaks.
But if Gates's testimony seems minor in the overall scheme of things, it is not.
This is because it calls into question why Mueller left this crucial information out of his final report, as well as what else he might have left out of a document of huge legal and historical import in making the case against a deeply corrupt president that six months after its release seems more pallid by the day. In other words, "Maximum Bob" did not live up to his reputation as a dogged former FBI director and prosecutor.
Josh Marshall puts it this way at Talking Points Memo:
As I've said many times before, you shouldn’t change your view of an investigation or an investigator just because you are disappointed with or didn't expect the result. This is a kind of situationally convenient way of thinking we should all avoid. But this isn't quite that. We're learning new facts – a lot of them – which the investigators either clearly knew (Gates was their cooperating witness, after all) or ones they should have come across but didn't.
Was Rod Rosenstein leaning on Mueller more than realized? Was Bill Barr? Neither possibility is terribly convincing since Mueller had all the clout and public attention to defy them if he wanted to. Was Mueller restraining his own investigators and this oddity of a report was the result? I'm really not sure. Certainly his public testimony and his resistance to that testimony suggested his heart wasn’t quite in it.That seems all the more obvious in light of the confused and ineffectual Democratic response to Barr's whitewash and then on July 24 the mother of all anticlimaxes -- Mueller's halting testimony before two House committees in which his reputation took another hit.
"It was a game of chicken among chickens," as Slate's Dahlia Litchwick commented at the time.
Mueller had pointedly warned that if forced to testify before Congress, he would not say anything beyond what his report said. And when all was said and done after nearly seven hours of testimony before the Democratic-led House Judiciary and Intelligence committees, two of the committees now plunging ahead with impeachment hearings, the former special counsel did not elaborate, hewing to a letter from Barr written at Mueller's request instructing him to not answer a wide variety of questions about his investigation, which the AG asserted is covered by executive privilege but was an egregious frontal assault on the Constitution and congressional oversight.
Asked by a Democratic congressman whether the reason he "did not indict Donald Trump is because of the OLC [Justice Department Office of Legal Counsel] opinion stating that you cannot indict a sitting president," Mueller said it was, but then sought cover.
"That is not the correct way to say it," Mueller elaborated. "We did not reach a determination as to whether the president committed a crime."
Mueller's most pointed criticism of the president at the hearing came when he said he found Trump's repeated statements during the campaign praising WikiLeaks for releasing the Democratic emails to be disturbing.
"Problematic is an understatement in terms of what it displays of giving some hope or some boost to what is and should be illegal behavior," Mueller said in muddled elaboration.
Casting future events against past performances can be unfair.
But virtually every discussion and commentary about the televised impeachment hearings ends up asking the same question: Will Democrats in a few short weeks be able to make the case Trump should be removed from office? Probably. Yet Mueller had two years and didn't even come close.
And that is that.