The Surrender

June 29, 2020 2:35 PM

Why the Mueller Investigation Failed (Jeffrey Toobin, The New Yorker, July 2020)
posted by box (42 comments total)

In other words, Mueller hadn’t reached a conclusion on whether Trump committed a crime, but Barr had. In just two days, without speaking to the authors of the report about their evidence or their conclusions, Barr and Rosenstein asserted that they had digested hundreds of pages of dense findings and decided that the President had not committed a crime. The letter was an obvious act of sabotage against Mueller and an extraordinary gift to the President. By leaving the disclosure of the report and its conclusions entirely up to Barr, Mueller had brought this disaster on himself and his staff.
posted by Brian B. at 2:50 PM on June 29, 2020 [27 favorites]

The actual article is pretty interesting, though a lot of it was covered heavily in realtime in the Metafilter megathreads so won't be too new to people who read those. The actual article is also pretty clearly focused on Mueller's failures in the face of Republican corruption, and doesn't really have much to do with Democrats, so maybe we could give that a rest instead of having yet another round on the "let's blame Democrats for everything regardless of relevance" merry-go-round?
posted by biogeo at 3:53 PM on June 29, 2020 [47 favorites]

Anyway it would be nice to talk about the actual article.
posted by biogeo at 3:55 PM on June 29, 2020 [13 favorites]

We know why it failed. Mueller let it do so in multiple ways.

The slightly more interesting question is why he made the decisions he did - was it party loyalty? Was he himself corrupted? Incredibly naive? Or hopelessly in love with the ideals of a justice system that was already so corrupted that it couldn't function that he wouldn't step outside of bounds that were no longer important?

I hope he goes down in history as at best being the railroad engineer who could have thrown any number of switches to save a train that was out of control but shrugged and explained very seriously that the formal rules of the the company he worked for forbade him from doing so but that he'd provide a confidential report to the senior managers (who had loudly proclaimed that they support out of control trains) that would recommend that they consider throwing a switch.
posted by Candleman at 4:30 PM on June 29, 2020 [83 favorites]

Mod note: A few comments deleted which were just generic one-liners; let's aim to discuss the actual article. Thanks.
posted by LobsterMitten (staff) at 4:34 PM on June 29, 2020 [6 favorites]

The actual article took a lot of words to say the only thing greater than Mueller's idiocy was his cowardice.
His staff must have felt utterly betrayed.
posted by fullerine at 4:34 PM on June 29, 2020 [17 favorites]

I get the need for the portrayal of a a stern and all-knowing figure like what's-his-name from NCIS but maybe, after apparently dozens and dozens of meetings where they got rolled, the poker face is actually just a blank look.
posted by Slackermagee at 4:41 PM on June 29, 2020 [24 favorites]

The slightly more interesting question is why he made the decisions he did - was it party loyalty? Was he himself corrupted? Incredibly naive? Or hopelessly in love with the ideals of a justice system that was already so corrupted that it couldn't function that he wouldn't step outside of bounds that were no longer important?

I think Mueller's reasons were basically the same as Comey's. Being non-partisan and honorable was central to both of their self-images, and that made both of them particularly susceptible to potential accusations of bias. Moreso in Mueller's case, because he was 74 years old and retired, and really didn't want to deal with the conservative rage machine being directed at him. Both of them knew that exercising any judgement in a way that helped Democrats would generate much more vitriol than exercising judgement in a way that helped Republicans, and so when they had to choose, they erred on the side of keeping Congressional Republicans happy.
posted by gsteff at 4:43 PM on June 29, 2020 [24 favorites]

Mueller is a Republican, and quite frankly - at this point - that is the only relevant fact.
posted by dbiedny at 4:57 PM on June 29, 2020 [20 favorites]

My takeaway is that Mueller was committed to two ideas: (1) the system of US laws has been well-crafted to obtain justice when pursued, and (2) his job was to operate within that system to obtain justice.

I think he was basically correct about (2), but I think (1) is pretty questionable, and he neglected an important third point (3): the law is irrelevant when there are enough people with sufficient political power willing to ignore it, and it's very clear that everything surrounding his investigation was dominated by (3), as evidenced by the behavior of the leadership in the DOJ described in the article, especially by Bill Barr. What I think is somewhat tragic is I don't know what Mueller was supposed to do about (3) even if he did recognize it. Addressing (3) would necessarily mean abandoning (2) and directly challenging the truth of (1). Essentially it would mean stepping outside of the role of investigator and becoming a politician, because that's the ground on which Trump was being defended, not the law. And I think maybe the right person in Mueller's position could have pulled that off, behaving more like Ken Starr, but Mueller clearly wasn't, and was never going to be, that guy. Indeed, that fact is pretty clearly why he was tapped for the job in the first place.

So I dunno. Mueller failed and it's very clear that he made a lot of serious mistakes, especially related to the way he bungled the release of the final report by letting Barr spin it first, but it's also not clear to me that had Mueller played his hand perfectly it would have mattered against the backdrop of (3). I think a lot of people are upset with Mueller because they expected more from him than he was ever capable of delivering, and a lot of that anger should be more properly directed toward the corrupt politicians like Barr who ensured that Mueller was never going to be able to succeed.
posted by biogeo at 5:13 PM on June 29, 2020 [34 favorites]

Being non-partisan and honorable was central to both of their self-images ... Both of them knew that exercising any judgement in a way that helped Democrats would generate much more vitriol

I recognize this is dangerously close to a pithy one liner, but making bad choices for fear of vitriol isn't honorable, it's cowardly. Pretending that both sides are acting in good faith when one side is clearly not is not being non-partisan, it's being partisan towards that side.

And it's problematic to mistake something that helps the country as helping the Democrats.
posted by Candleman at 5:17 PM on June 29, 2020 [60 favorites]

I think the Mueller investigation failed because it was designed to fail.

Mueller was chosen for the investigation because, as newly appointed head of the FBI in 2001, he minimized the dangers of Russian intelligence activities in the US as well as the rest of the world and de-emphasized counterintelligence.

As I mentioned here back in 2018 in a thread about Soviet defector Yurchenko:

There was a powerful little depth charge down near the bottom of that Washingtonian article:

By the time Rochford and his colleagues learned the truth about Yurchenko, the battle of wits between the American agencies and the KGB appeared to be over. When Robert Mueller took over as FBI director in 2001, he continued a downsizing of the counterintelligence department that his predecessors had started. “I was in the meeting when he told us: Stop wasting your time on something like the Russian intelligence,” recalls David Major, at the time an FBI counterintelligence leader and a former National Security Council staffer under Reagan. Major argued that it was only a matter of time before the lack of attention was “going to bite us on the ass. And it has, hasn’t it?”

Wondered, like me, why Robert Mueller was chosen to lead the investigation of the Trump/Russia connection?

Simple, the capstone of his career at the FBI was declaring, all appearances to the contrary notwithstanding, that the FBI should 'stop wasting your time with something like the Russian intelligence', and that's exactly what the people who picked him expect him to do again

And he probably will.

And he did.
posted by jamjam at 5:28 PM on June 29, 2020 [29 favorites]

He never issued a grand-jury subpoena for the President’s testimony, and even though his office built a compelling case for Trump’s having committed obstruction of justice, Mueller came up with reasons not to say so in his report. In light of this, Trump shouldn’t be denouncing Mueller—he should be thanking him.

I truly expected that Mueller would have been more respectful of his duties to the spirit, not to mention the letter, of the law. The article seems to be a painful narrative of a man who knew how to do his job, stay within legal boundaries, and keep his head down. I am still seething.

1. re: Criminal acts bordering on, perhaps wallowing in, Treason: I ain't saying he did, ain't saying he didn't. Okay, maybe he had someone do it, but, I dunno, we couldn't get him to talk to us about it, so....

2. re: Obstruction of justice: Yeah, big time. So what are you going to do about it? I did the investigation, so it's up to you (The House) to do what you do do best. Anyhow, we all know it won't fly in the Senate, so good luck.

Yeah. Thanks, Bob.
posted by mule98J at 5:33 PM on June 29, 2020 [8 favorites]

Mueller's biggest error may have been staying within the rules he was given.
He was barred from drawing conclusions about the criming.
He documented about a dozen cases of obstruction, including being obstructed from doing his job.
He drew the conclusion that there had been foreign interference in US elections.
He drew the conclusion that there was more bad stuff to be found, but he wasn't allowed.
He explicitly called on Congress to do their jobs holding those accountable that he wasn't allowed.

[i want to believe.rle]

But yeah, after this long with only smaller fish netted (and sometimes released), it's all smelling like Tokyo bay at low tide, like lots of dead fish.
It starts to sound like a fair question if he failed on purpose, or was just set up to fail and didn't try hard enough to work around it.
Apparently the final accounting for sealed indictments was zero as of late 2019. No surprises from that quarter.

I think I'm going slightly mad.
posted by Enturbulated at 7:11 PM on June 29, 2020 [4 favorites]

One last thought, as I kind of have a bee under my bonnet on old Bob. At the point that you're charged with investigating the ostensibly most powerful person in the world and their handpicked appointee takes what you reported and publicly distorts it and you stay silent, you're now complicit. A special investigator's allegiance should be to the truth rather than "the process" or one's personal reputation. That's what justice demands.
posted by Candleman at 8:00 PM on June 29, 2020 [82 favorites]

Yeah, I think that's a really fair criticism.
posted by biogeo at 8:04 PM on June 29, 2020 [2 favorites]

"I'm not allowed to say if he crimed or not, but if I were a prosecutor I could get an indictment without breaking a sweat."

easy peasy.
posted by j_curiouser at 8:08 PM on June 29, 2020

Mueller has more in common with Obama. They are men who value playing by the rules. They were both terribly unprepared to go up against people who very much did not.

The problem of Decorum is endemic to most, practically all of the modern Democratic establishment. These are people who are accustomed to respecting offices and honoring norms and holding to precedent, playing political games with an ever-growing pile of primitive screwheads whose only mantra is to attack, attack, attack, attack and attack.

The Mueller Report, as noted in the article, was narrowly constructed and narrowly aimed, and yet its message was potent even if its practical effects were not. The Dems subsequently refused to act upon it. The GOP's statements and behavior during the Ukraine House hearings (which were, in and of THEMSELVES far too narrowly constructed) were simply embarrassing; the same during Trump's Senate trial were openly reprehensible, making an utter mockery of the entire process. Are we seeing ad after ad of Marsha Blackburn reading a book and various Republican Senators playing with fidget spinners and Rand Paul playing Let's Shout The Whistleblower's Name As Loud As We Can?

Not that I've seen.

A phrase comes to mind, involving excrement and a pot.
posted by delfin at 8:54 PM on June 29, 2020 [12 favorites]

Fundamentally, he's a relic from the brief era in American history where the Cold War national security consensus was bipartisan and sacrosanct. Politics stops at the water's edge and all that stuff.

You would think that in that world, findings of this nature would lead to the screeching end of a political career but the problem is that in that world, Donald Trump would never get anywhere near the presidency. Mueller has no frame of reference whereby someone can be both the president and susceptible to foreign influence in this way.

Even things like the security clearance rules reflect that. The president grants security clearances, he's meant to take the advice of professional screeners but the rules don't require him to because what president would ever just ignore their advice to give someone like Jared a clearance?

There is an assumption that the president, the attorney general, and others in the White House will act with a sense of decorum and gravitas. The controlling mechanisms of democracy only work, even in countries like the US with written constitutions, when people accept the soft limits of their power and the unwritten rules that govern their compliance with the written ones. We have discovered over the last few years that when they simply refuse to do so, the mechanisms of control don't work so well.

There was a lot of guff about Mueller represented a sort of last gasp of the old WASP ruling class which was both factually true but also very odd to see lauded. He behaved exactly the way that those people have always behaved: acted with integrity and honour in a narrowly correct sense without any kind of challenge to power.
posted by atrazine at 2:54 AM on June 30, 2020 [19 favorites]

The Venn diagram of people who read the New Yorker, who didn't get all the same information from listening to Stephen Colbert and/or Seth Myers, and read this somewhere has got to be a audience of about ... what ... 2 or 3 people? I mean, if this had been in The American or American Spectator or even the Washington Times this might have reached a new audience - but... heh... who are we kidding... what Republican that didn't know this stuff is going to read about it to get informed? That isn't in their modus operandi.
posted by Nanukthedog at 3:34 AM on June 30, 2020 [2 favorites]

One thing that I’ve gotten from listening to “All the President’s Lawyer’s”, with Ken White (@popehat), is that the trust in the system of federal law is so ingrained that the people who enforce that law cannot imagine deviating from guidance, much less from opinions that have no force of law. The system, already weaponized for the rich, just showed it’s ass. There are two sets of laws. The system is set up to perpetuate that difference and it has.
posted by mfu at 4:00 AM on June 30, 2020 [10 favorites]

All of the analysis in painful detail is accurate but for two things, no one got Trump on tape saying "Pay the Burglars" and votes, just did not have the votes.

Mueller did not use the F.B.I. information as a catalyst for a deeper examination of Trump’s history and personal finances. Nor did he demand to see Trump’s taxes, or examine the roots of his special affinity for Putin’s Russia. Most important, Mueller declined to issue a grand-jury subpoena for Trump’s testimony, and excluded from his report a conclusion that Trump had committed crimes. These two decisions are the most revealing, and defining, failures of Mueller’s tenure as special counsel.

Can someone be impeached for actions prior to being sworn in to the office? Or "liking" a foreign leader? Perhaps the newest scandal about Russia putting a bounty on US solders would have pushed it over the edge if they had waited until march to file articles of impeachment? But still for all the painfully accurate denigration's of President Trump's intelligence he seems very careful not to directly lie during a legal deposition. It's not illegal to lie in a tweet.
posted by sammyo at 4:59 AM on June 30, 2020 [2 favorites]

The Mueller report clearly identified multiple examples of obstruction of justice.

Asking why it didn't get Trump removed is like asking why, if the Democratic bills are so great, none of them get signed into law.
posted by Brachinus at 5:24 AM on June 30, 2020 [17 favorites]

The Venn diagram of people who read the New Yorker, who didn't get all the same information from listening to Stephen Colbert and/or Seth Myers, and read this somewhere has got to be a audience of about ... what ... 2 or 3 people?

I think this number of people is higher than you think. Meyers has kind of a stink of hackery about him, whether deserved or not, and Colbert is, ultimately, still just a late night talk host, and one whose star has diminished somewhat since his brilliant work on Colbert Report. Meanwhile the New Yorker remains one of a number of excellent US news magazines that are among the best sources of information and opinion on politics here. Not even the New York Times is as good anymore, I'd say.
posted by JHarris at 6:44 AM on June 30, 2020 [1 favorite]

Can someone be impeached for actions prior to being sworn in to the office?

Yes. Or at least issues related to the investigation of them.

The president can be impeached for anything Congress wants to call "high Crimes and Misdemeanors."

he seems very careful not to directly lie during a legal deposition

Perhaps Muller should have deposed Trump and other key witnesses that he chose not to.
posted by Candleman at 6:53 AM on June 30, 2020 [8 favorites]

Maybe I'm just bitter, but I don't think I am. Mueller, like Comey, is a lifelong Republican loyalist and if that's not the complete explanation for their actions it's the root from which all other causes spring.

It's very easy for a man who doesn't want to threaten Republican power to take refuge in claims that they were just following the rules and staying inside the bounds of their remit.

Comey wanted Clinton to lose. Mueller didn't want Republicans out of power. They both got what they wanted and in both cases the Democrats were foolishly trusting in the plainly false idea that any Republican can be trusted to do the right thing if doing the right thing would hurt Republican power.

Going forward the only reasonable approach is to assume that every Republican is a Republican loyalist first, last, and only. It may not be true in 100% of cases, but taking the risk of trusting a Republican is too great for no particular reward.

I'm sure Mueller convinced himself that he was being a good man who was working within the bounds set by his remit and the system. I'm also sure that if he'd been investigating a Democrat who did all that Trump did he would have conducted himself much more aggressively.
posted by sotonohito at 7:06 AM on June 30, 2020 [21 favorites]

Keep in mind that the Barr has refused to release the unredacted Mueller report to congress, which is authorized to review classified material. Nobody knows what is still hidden.
posted by JackFlash at 7:09 AM on June 30, 2020 [13 favorites]

There is a psychological aspect. The events of the past few years can be seen as a culminating assault on foundational assumptions. It could be over-stating things to reduce this all to theatre, but there are compelling features: a reality TV personality elected to POTUS; a White House administration that has functioned as a scarcely believable train wreck constantly defying the lowest expectations of what a dysfunctional body might do next; the constant tweeting of outrageous and inflammatory missives. The Mueller episode cast a Hero and the System against the Adversary, and many of us bought into the narrative (remember the swell of admiration for Robert Mueller on social media among many of your most progressive friends and family? Perhaps you indulged in this a little too). We can even say, this is a very old narrative in some ways: a narrative of coercion that helps us all stomach what is essentially rotten at the core of so many systems that have been co-opted long ago, if not always and already. The difference here is that there is a new narrative, and it is repeatedly telling us that All Bets Are Off. Mueller played his part to emphasize that it's no longer sufficient to suggest the system has been co-opted, this was a gesture to say: Here, at last, is naked power. We don't need your suspension of disbelief anymore.
posted by elkevelvet at 7:38 AM on June 30, 2020 [8 favorites]

Somebody should ask Biden if he will order the release of the unredacted Mueller Report if he is elected.
posted by srboisvert at 8:15 AM on June 30, 2020 [5 favorites]

Why the Mueller Investigation Failed

all of the above ... to which I guess I'd add, in spite of the growing sophistication of TV drama etc, there are still way too many who buy into the old Jimmy Stewart staple of the good tall quiet man who will get to the heart of what's wrong with things and sort them out for us. Maybe it's just what I personally was watching too much of at the time, but I lay a lot of the blame on CNN for this particular delusion -- how all roads seemed to keep leading to the Mueller Investigation, or certainly the only ones deemed worth paying attention to.
posted by philip-random at 8:19 AM on June 30, 2020 [2 favorites]

remember the swell of admiration for Robert Mueller on social media among many of your most progressive friends and family?

OH YES. Also here on the blue, IIRC.
posted by el gran combo at 11:17 AM on June 30, 2020

Mod note: Removed a few comments derailing the conversation. Remember to focus on the issues, topics, and facts at hand—not at other members of the site.
posted by loup (staff) at 11:22 AM on June 30, 2020 [1 favorite]

Don Jr. Was never interviewed because Mueller was afraid of Trump. How much more proof do you need that there was no actual search for truth?
posted by benzenedream at 11:44 AM on June 30, 2020 [5 favorites]

Even things like the security clearance rules reflect that. The president grants security clearances, he's meant to take the advice of professional screeners but the rules don't require him to because what president would ever just ignore their advice to give someone like Jared a clearance?

Am just now reading Hamilton's biography, the part where in Fed 84 (I think), he argues against creating a bill of rights on the ground that the government hasn't been given liberty to do such things (abrogate free speech, and so on), so it isn't necessary to create a clause that forbids it (the government) to do so. Oh my. He was wrong and we got a Bill of Rights anyway, but they forgot to set out a clear job description for the prez. No, wait. Treason has been defined, but they forgot to actually say that the prez is subject to that law.

Remind me to suggest to my lawyer when I go to trial that the law they say I violated didn't mention me by name.
posted by mule98J at 12:54 PM on June 30, 2020 [4 favorites]

that'll only work if your name is "The Police"
posted by Reyturner at 1:00 PM on June 30, 2020 [4 favorites]

The problem with the Bill of Rights is that it reinforces the idea that you only have rights that are explicitly listed in the Constitution, which is the opposite of the Founders' belief in natural rights (emphasis added).

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

posted by kirkaracha at 1:13 PM on June 30, 2020 [1 favorite]

Both of them knew that exercising any judgement in a way that helped Democrats would generate much more vitriol than exercising judgement in a way that helped Republicans, and so when they had to choose, they erred on the side of keeping Congressional Republicans happy.

If only liberals hadn't laid on the hate so hard from the beginning and had given him Trump the benefit of the doubt...~~~
posted by pmbuko at 2:16 PM on June 30, 2020 [1 favorite]

Perhaps I missed, but, I don't think the article mentions the Press Conference Mueller held in May, which was notable not so much for what he said (as it was, as he noted, all in the report), but that he held it at all. My take was that it was the only way he could see to override Barr's miscommunication while still operating within his confines of reponsibility.
posted by Sparx at 3:07 PM on June 30, 2020

The problem with the Bill of Rights is that it reinforces the idea that you only have rights that are explicitly listed in the Constitution, which is the opposite of the Founders' belief in natural rights (emphasis added).

It may have had that effect but it was certainly not intended to, with the authors of the Bill of Rights including explicit language in the Ninth Amendment to address that very point.

I'm not sure how much more clear they could have been than "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
posted by Nerd of the North at 9:36 PM on June 30, 2020 [4 favorites]

Sure, if you read the clear meanings of the simple words in the text, but that's why I was an English major and not a law student. For instance, I believe I have a natural right to privacy because the Constitution does not mention it. But lawyers are all "it's an ink blot. Who knows what it could mean?"
posted by kirkaracha at 10:06 PM on June 30, 2020 [3 favorites]

Kirkaracha: We hold these truths to be self-evident...

Yes. I'm pretty sure the intent of the "framers" is clear enough. But this phrase in the Declaration of Independence was compose at a time when our Constitution was still a gleam in the "framers'" minds, and George Washington was pondering the oncoming winter and wondering how he's going to keep the deserters in camp long enough to fight a war.

I'm just a duffer who read the Constitution with a layman's eye, so I'm in the mood to be corrected. The bill of rights was composed partially by some who didn't want the Articles of Conderation to be replaced with this new animal called "The Constitution." But they all had a vision of limiting the government's powers, and keeping a King-like executive at bay. So they wrote the notion in that it's allowed if it's not expressly forbidden. I'm fairly sure that, even though they were realistic in understanding the toxic effects of power, they didn't dream that 2/3'd of our government would be a mix of stupic, corrupt, and wallowing in hubris.
posted by mule98J at 9:12 AM on July 1, 2020

Today the Supreme Court decided in favor of the Trump administration to take up an appeal of a decision that would allow Democrats in congress access to the grand jury materials from the Mueller administration. This means that the decision won't be until some time next year, long after the election.

Both a federal judge and a federal appeals court ruled in favor of the Democrats' request that the information be released. We don't know how the vote in the Supreme Court went, but it only takes four conservative justices to bury this information from the Mueller investigation until after the election.
posted by JackFlash at 8:36 AM on July 2, 2020 [4 favorites]