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After two years of investigation, Robert Mueller on Wednesday gave his first public statement since the inception of the special counsel’s office.
Mueller’s remarks, which lasted less than 10 minutes and entertained no questions, offered no new substantive information apart from the announcement that the office was formally closing and that Mueller would be resigning from the Justice Department.
The statement was carefully designed to give the mainstream media and Democrats in Congress an excuse to continue calling for an investigation and potential impeachment of the president. It also let Mueller portray himself as an unbiased and objective public servant merely stating “the facts.”
Consider the following few lines from Mueller’s statement in which he reiterates that the special counsel’s office would have stated that President Trump did not commit a crime if they had confidence the president clearly did not commit a crime:
And as set forth in the report after that investigation, if we had had confidence that the president clearly did not commit a crime, we would have said so. We did not, however, make a determination as to whether the president did commit a crime.
They will make the obvious argument that Mueller said:
- Because of Department of Justice policy regarding the indictment of a sitting president, his office would not make a determination as to whether the “President did commit” a crime. (Why not? The policy is against indicting a sitting president, not against discovering that he committed a crime.)
- Had his office been confident that Trump clearly did not commit a crime, he would have said so, thus making the determination that the president did not commit a crime. (But investigators’ confidence that Trump did not commit a crime does not mean that he actually did not commit a crime. Got it? If only life were so simple.)
- Mueller’s office made no statement that the president did not commit a crime, and so his office did not make a determination that the president did not commit a crime.
- Therefore, Mueller has confidence that the president might have committed a crime, but cannot make the necessary indictments because his office cannot make a determination as to whether the president did commit a crime.
- And because “the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing,” the other branches of government should use political processes (such as asking Jerry Nadler) to punish the wrongdoing of the president.
But Mueller’s argument is based on the faulty assumption that the special counsel’s “confidence” is the same as its “determinations.”
Distinction with a Big Difference
A mere two minutes later, Mueller clearly stated his office had determined that it “would not reach a determination one way or the other about whether the president committed a crime.” (Emphasis added.) This means that even if Mueller was confident beyond a shadow of a doubt that the president committed no crime, he would not have reached a determination.
And here we see the clear distinction between the special counsel’s “determinations” and his “confidence.” Mueller decided he would not make a determination “one way or the other” but never explicitly decided under what circumstances he would have “confidence” in the guilt or innocence of the president.
By subtly allowing his audience to conflate his “confidence” with his investigation’s “determinations,” Mueller sidestepped the question of whether he would have stated publicly that President Trump had committed a crime if his office had confidence that the president clearly had committed a crime.
Consider the phrasing again:
And as set forth in the report after that investigation, if we had had confidence that the president clearly did not commit a crime, we would have said so. We did not, however, make a determination as to whether the President did commit a crime.
Mueller wanted to make sure even though he wasn’t making a determination one way or the other, he would leave people with the impression that he did. And so the Mueller report makes the same distinction clear while offering the same conflation:
First, a traditional prosecution or declination decision entails a binary determination to initiate or decline a prosecution, but we determined not to make a traditional prosecutorial judgment [i.e. a binary determination] . . .
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, however, we are unable to reach that judgment. The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. (Emphasis added.)
(Yes Mr. Mueller, it’s always difficult to prove a negative—which is why our criminal justice system begins with the presumption of the accused’s innocence.)
Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.
But no one asked Mueller to exonerate the president and certainly no one asked him what his non-factual, non-legal, and non-prosecutorial confidence was.
As Attorney General William Barr testified on May 1, the job of the Justice Department—and thus the job of the special counsel—is not to “exonerate.” The job of the Justice Department is to determine whether there is “sufficient evidence to establish an obstruction” and that this “determines whether or not there was a crime.”
Mueller’s job was to make this determination. He declined to make it. But having claimed that they could not make a determination, they did not stop at laying out the facts.
Much in the same way that James Comey and Peter Strzok invented the “extremely careless” category to avoid describing Hillary Clinton’s actions as “grossly negligent,” Mueller and his office came up with the new and nebulous criterion of confidence.
But even on confidence, Mueller and his office are vague. All he said was that had the investigators been confident that Trump clearly did not commit a crime, they would have said so. And given that Mueller carefully sidestepped the question of whether they would have stated publicly that they were confident the president had committed a crime, we can assume that he would rather leave the question unanswered and to the fanciful imagination of the mainstream media.
Media Manipulation (It Isn’t Hard to Do)
By not making a prosecutorial determination and not stating that they were confident the president clearly did not commit a crime, Mueller and his office allowed the media to run wild with speculation.
Mueller and his office punted the question of prosecution to Barr, who subsequently decided not to prosecute the president. Barr also took an unexpected further step. He chose to make the determination not to prosecute “without regard” to the “constitutional considerations” Mueller had cited. Barr’s decision not to prosecute was based on the facts themselves.
The media and Democrats went into a tizzy, with many calling for Barr to resign. No doubt, they had expected Barr simply to rely on Department of Justice policy in his decision not to prosecute, thereby teeing up their impeachment push. By making a definitive judgment on the case, Barr squashed the planned Mueller fever.
Had Mueller stayed quiet after Barr’s decisions and the subsequent release of the Mueller report, then we could have regarded his statements about his office’s confidence as a poorly phrased reminder that, as Mueller said in his statement, “every defendant is presumed innocent unless and until proven guilty.”
He’d Better Take Questions
But Mueller gave a statement. His statement offered no new information. Coming as it did after Barr’s determination, its purpose is clear. It was, once again, to push the narrative that Mueller does not have confidence that the president clearly did not commit a crime and to advance the fallacy that his non-factual, non-legal, and non-prosecutorial confidence means anything.
If Mueller were a man of character and believed Trump would have been indicted if he were not a sitting president, he could have come out and said explicitly that he was confident that the president had committed a crime. Now that he is a private citizen, he could say this. Instead, he weaseled and equivocated to give cover for the Democrats and their kept media, all while trying to portray himself as above the fray.
It is convenient that the special counsel’s office is formally closing and that Mueller is resigning, given his pledge to “not comment on any other conclusions or hypotheticals about the president.”
We are left with many obvious and unanswered questions that the media and Democrats will either ignore or assume the answers to suit their narrative.
For instance, how did Mueller and his office determine confidence? Why didn’t they explicitly say that they were not confident that the president clearly did not commit a crime? What exactly would it mean for them to not be confident that the president “clearly” did not commit a crime? And would they have stated if they were confident that the President had committed a crime?
We could also ask whether they would have told us if they had some confidence that the president probably did not commit a crime, whether they have confidence in their confidence, and whether they are confident that Brian Stelter is not a homicidal pedophile who has systematically targeted, kidnapped, raped, and killed more than two-dozen children on a private island in the Caribbean. (If they are not confident of the last one, House Democrats should surely open an investigation.)
Later in the statement, Mueller claims that his office was partially “guided by principles of fairness” and that “it would be unfair to potentially accuse somebody of a crime when there can be no court resolution of the actual charge.” His hesitance in this part of the statement may be indicative that he knows just how insincere this claim is.
Because what Mueller doesn’t acknowledge is that it is far more unfair to say something like “if we were confident that the President clearly did not commit a crime, we would say so” and then repeat that statement with an ominous stare after the attorney general makes the determination that there is clearly not enough evidence to prosecute.
The Senate Judiciary Committee must subpoena Mueller and ask—and ask—and ask some more. After the countless hours of interrogations that Mueller himself has presided over these past two years, and after the somehow brazen yet gutless political meddling and harassment, it’s only fair.
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Photo credit: Yuri Gripas/AFP/Getty Images