Neal Katyal on Whether the Mueller Report Went Far Enough
On Thursday, the Department of Justice released Robert Mueller’s anxiously awaited report on Russian interference in the 2016 election. Mueller and his investigators found numerous contacts, among members of Donald Trump’s campaign and Russian nationals, with ties to Vladimir Putin, but they did not find evidence of any sort of criminal conspiracy between them. They did not make a judgment on whether Trump, in his efforts to impede the investigation, obstructed justice. The report states, “The President’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests,” adding, “The President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred.” Shortly before the release of the report, Attorney General Robert Barr held a press conference in which he seemed to defend Trump against Mueller’s findings, repeatedly saying that Mueller found “no collusion” and that Barr himself had determined that Trump’s actions did not amount to obstruction.
On Friday, I talked about Barr’s actions and the Mueller report with Neal Katyal, a lawyer and a professor at Georgetown Law. In 1999, in the wake of the Starr report, Katyal was enlisted to help draft the special-counsel regulations. Under President Barack Obama, Katyal served as the acting Solicitor General.
During our conversation, which has been edited for length and clarity, we discussed what Mueller was trying to convey in the obstruction section of his report, the significance of Barr’s dishonesty about it, and whether Mueller’s caution is appropriate in the age of Trump.
I think the most important thing to understand about the Mueller report that was obscured by Barr’s letter and his press conference was that Mueller was guided by two things, and Barr’s press conference mentioned neither of them. One is that, if I have all the evidence that shows you, Trump, to be guilty as sin, I am still not going to say so, because I can’t indict a sitting President, and fairness concerns counsel against calling you criminal if you have no way of clearing your name, because there is no criminal process. And the second is that, if I have no evidence you have committed a crime, I will say so in the report and exonerate. Everything about the obstruction of justice needs to be read in light of those two things.
So what Mueller is doing in this report is laying out the instances of obstruction of justice and not drawing a conclusion, because, he says, There is enough there that I can’t exonerate you, but I can’t go further and call you guilty because you have no way to defend yourself. And, in this respect, the pattern of this report looks very much like what Leon Jaworski did in Watergate, and what Ken Starr did in the Lewinsky and Whitewater referrals. Jaworski just laid out the evidence and ultimately just left it to Congress and the American people to decide. When we were writing the special-counsel regulations, back in 1999, the template was Jaworski. Absolutely. And I am sure Mueller knows that, and so it is not surprising to me that Mueller followed that same path.
So, essentially, your argument comes from a section where Mueller states, “Because we determined not to make a traditional prosecutorial judgment, 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. At the same time, if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.” Would it have been helpful for Mueller to say more explicitly that he would have charged the President, if not for the Office of Legal Counsel opinion that a sitting President cannot be indicted? Or, as you are saying, would that have been unfair because Trump can’t defend himself in court?
Exactly. I think Mueller answers that right away, in page 2 of his report. He says Trump would have no opportunity to clear his name, because there would be no criminal process for him to go through and ultimately be potentially vindicated. So, ultimately, Mueller says, that is exactly what I am not going to do. And I feel like it is the Barr four-page letter and the press conference which obscured that, and we are here, twenty-four hours after the report, and you are asking that question. Whereas in the normal way the Justice Department handles things—I was there in two different tours—when you have a significant action, you give the documents that announce a significant action. You don’t have a press conference. Had we just gotten the document, we would have done what normal people do and just read the introduction, which has a summary of the conclusions. But because of the Barr spin, it took a while for those two key things to really get picked up.
And I would say there is even a third one, near the end of the report, that is more subtle. Maybe Mueller can be faulted for being subtle. It is footnote 1091. It says impeachment isn’t the only remedy here and, just because there is an impeachment possibility, it doesn’t take criminal actions off the table, and, in particular, even though a sitting President can’t be indicted, once a President leaves office, he can be. That footnote did not need to be in the report, and it is in there, in my judgment, as a very pointed footnote.
Do you understand why Mueller didn’t push harder for an interview with Trump?
I think that there are a couple of things going on there. One is that I think that Mueller had uncovered significant evidence of the President’s corrupt intent. So you don’t need the interview in order to absolutely make that case. Then, No. 2, is that the situation institutionally has changed from the start of the investigation. When Mueller first began investigating, for the first seventeen months or so, he was the only game in town. He was the only one who could investigate, in terms of getting to the details of these episodes. And there it made sense to leave no stone unturned. But after November, once the Democrats take control of the House, there is a new investigator in town, and Mueller doesn’t have to do everything. And it is not surprising to me that, shortly after the November election, we started to hear the first signs that Mueller might wind things down, because he could pass the football to somebody else.
Is that a political decision rather than a decision about best legal practices?
Well, I don’t think it is political. I think any investigator is always thinking about who else are the investigators. I would think about that with regards to U.S. Attorneys’ offices. But I would also think about it with respect to state investigations, and what is the best strategic allocation of resources when you have multiple investigators. So I think it is absolutely something that would be considered, and it is absolutely reasonable that an investigator would consider something like that.
And then you have the third, most important fact, which is Mueller had to know that, if he tried to subpoena the President, given what the President had been saying, there would have been a fight all the way to the U.S. Supreme Court. I think Mueller would have won that fight, but it would have been years down the road, and, if your goal is to try and get the information to the American people and to Congress as quickly as you can, a lengthy court fight is going to put things back. I think it is a reasonable decision to make here, to forgo that extra source of information because it is so long before that source can yield results.
Do you think Mueller made any obvious mistakes?
No, not yet. But I’d want to think more about it. I haven’t read closely enough the sections, for example, on Don, Jr.
But so far Mueller appears to have applied his very cautious nature to this whole investigation. The President has been railing against this for two years, calling it a “witch hunt.” What kind of witch hunt is it when Mueller says, Look, even if you are guilty as sin, I am not going to tell the American people that? I would say three people’s colors have been revealed by this report. We have learned Mueller’s reputation is real. We have learned Trump’s disregard for the truth and the rule of law is real. And we have learned Barr has become a total Trumpian Attorney General.
How much power would Mueller have had to either disregard the O.L.C. opinion and try to indict Trump and see what would have happened within the D.O.J., or to explicitly say that there is enough to indict? Would either have made sense?
The second one was your initial question, and Mueller believed—and I think this follows very standard D.O.J. thinking—that, if they have no way to defend themselves, then you don’t make the accusation. With respect to disregarding the O.L.C. opinion, the answer to that is clearly no. The special-counsel regulations were written explicitly to repudiate the part of the Independent Counsel Act that Ken Starr read to say that a special independent prosecutor can disregard D.O.J. policy. It is a hundred per cent clear that the special counsel has to follow D.O.J. policy.
The debate occurs as to what the D.O.J. policy covers. I think it certainly covers obstruction of justice. I don’t think, personally, that it covers campaign-finance violations, akin to what the Southern District [of New York] is investigating, in which the question is whether you cheated enough to win an election. That would encourage people to cheat to the hilt to win and get a get-out-of-jail-free card. And that seems like a very perverse rule. But the general policy of not being able to indict a sitting President is a D.O.J. policy, and it obviously was the most important part of Mueller’s thinking. It is literally the first thing he says, on page 1 of the report, and it is striking to me that William Barr, who claimed to be summarizing or describing the report, couldn’t even tell us about that.
There have been reports that Barr and Rod Rosenstein were surprised that Mueller did not come to a decision on obstruction. I don’t understand what that decision could possibly have been, based on how you have laid things out. Do you think that is Barr and Rosenstein spin?
I am skeptical about them being surprised, but we will leave it to see what they have to say about that. To me, it flows naturally that, once Mueller decided he couldn’t indict a sitting President, it would then be unfair to leverage his investigation to call someone a criminal who wouldn’t have the opportunity to defend himself. That seems, to me, to be wholly not surprising.
And something you would suspect Rosenstein and Barr to understand.
Yeah, a hundred per cent. And so it has the flavor of being some spin against Mueller to try and protect the reputation of the Attorney General, more than anything else.
I know how things tend to work with prominent people in Washington, but I don’t understand why, if Mueller’s thinking is being warped, he doesn’t just say so. Maybe he will before Congress, and maybe his team leaked to the New York Times for that story about them being upset with Barr’s summary. It’s just not clear why he doesn’t come out and say Barr is misleading people.
Time will tell. We will see. I can tell you that standard D.O.J. protocol is that you let official acts speak for themselves. You don’t go and spin your action. For example, when I ran the Solicitor General’s office, there would be all sorts of times when the litigants would make something up, and we would just never comment to the press. It is not what we do. And Mueller is very much part of that tradition, so I think you are only going to hear him speak in an official way. I was shocked when that Times story came out because the threshold had to be so high, after twenty-two months of not a single peep from the team. So that told me something, but I am not surprised Mueller hasn’t said anything yet, and I don’t expect him to, until he testifies in an official proceeding.
Do you expect him to be honest about what he thought of how the Barr letter characterizes things?
I do. Obviously, that is a delicate thing. But one of the reasons we wrote the special-counsel regulations the way we did, in which we sought someone outside the Justice Department and outside the traditional chain of command, was because if there was serious interference by an Attorney General in some way, we wanted the individual to be outside the department and free to speak his mind, if need be. That was a kind of break-glass-in-case-of-emergency option, and we sure hoped it would never materialize. But, to the extent any Attorney General has distorted their work, it is an option.
Mueller wrote, “The conclusion that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.” What did you take this to mean?
I think two things here. That and footnote 1091 and some other language in there really is a signal that the Mueller team views this as a fundamental rule-of-law issue, with the President seeing himself as above the law and able to stymie an investigation of him. And, No. 2, it is impossible to read that language and not think about William Barr’s nineteen-page memo he wrote last summer, in his campaign to audition for being Attorney General. And all of that is totally a response to Barr. It’s a long subtweet, basically. The Mueller report is a long subtweet of the Barr memo and demolishes it and says that is absolutely wrong, and, fundamentally, in this country, whether you are a high person or a low official, anyone can obstruct justice.
Maybe we are back to the beginning, but it seems like some people can’t obstruct justice, because Mueller is saying he did.
Remember, two things: one is a timing question. You can’t be accused of obstructing justice now, but you can be later. And this is the way temporary-immunity doctrines work throughout the law. You can’t accuse a member of Congress of a crime when they are going to or coming from Congress. You can later. That kind of temporary immunity is the same idea that Mueller is getting at, based on the O.L.C. opinion. It is not that he is saying [Trump] didn’t obstruct justice. That is nowhere in the report. The only guy to say that is William Barr. Mueller never says anything like that.
The second point is that there are two different kinds of obstruction of justice, two different flavors. There is the one you get through the criminal process—is it a crime? That is what we have been talking about. But there is also obstruction of justice in the impeachment sense. And that is a looser standard, because impeachment has never been a technical inquiry into whether a crime has been committed. It’s much more about whether there has been an abuse of public trust.
Should Mueller have more explicitly called for Congress to take this up rather than allowing for a breach that Barr filled?
I think Mueller, because he is so by-the-book, did, again, exactly what Jaworski did. Jaworski didn’t say “Congress, look at this.” I know that there are a lot of journalists, members of the public, asking why he wasn’t more explicit. But one of the ways in which the Department of Justice has historically worked, and one of the reasons those of us who have worked there are so concerned about Barr, is that, when you are in the department, you don’t throw out traditions. You follow them. It is a very Burkean institution. The idea is that there is a wisdom accreted in past generations and the way they have handled things. It is not surprising to me at all that Mueller would follow exactly what his predecessors have done.
That makes sense, and I think it is why a lot of people have respect for those traditions. I guess my question is whether we are in new territory now, with this Administration and the way they deal with politics?
I think that is such an incisive question, and I think about it all the time. I love the way in which the traditions in the department operate. And I think there is such wisdom in it. But when you are dealing with such an unprecedented threat to the rule of law from the Oval Office itself, does that counsel for a different solution? I could see smart people debating that on both sides. But the one thing I am pretty sure of is that someone like Robert Mueller will put not just his thumb but his elbow and his entire body on the side of the scale that says, “We don’t deviate from the traditions.” If you are looking for someone to break the mold, the last guy you look to is Robert Mueller.
Even if the mold is breaking?
I think that’s right, yeah. But I think this is going to be a central question we are going to struggle with not just during Trump. Let’s say the Democrats win in 2020. I think there will be immense pressure on the Attorney General and the D.O.J. more generally to break their past traditions, because they will say, “Trump already did all that. We have to do it back. We have to fix it.” I think one of the greatest concerns about governance is not just what happens during the Trump Administration but what happens in the next Administration because of the pressures you are identifying.