Ever since the world got its first peek at what the full report by Special Counsel Robert Mueller might contain through Attorney General William Barr’s four-page summary, the debate has raged over Mueller’s decision to not make a decisions to charge President Trump with obstruction of justice despite some entirely public actions that clearly seem to warrant it.
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Without access to the full report, it’s impossible to evaluate the basis of Barr’s determination that — despite Mueller’s quote that “while this report does not conclude that the President committed a crime, it also does not exonerate him” — the president should indeed be exonerated of any crimes related to obstruction.
Now a former assistant to Robert Mueller, Michael Zeldin, has come forward with an explanation of why Mueller failed to make his own decision about the obstruction allegations against Trump,
Zeldin, who himself served as a special counsel to Mueller in matters relating to money laundering when Mueller was an assistant attorney general in the Justice Department’s criminal division in the 1990s, blamed that department’s “defective” regulations concerning the Special Counsel for the deferment of judgment on obstruction charges.
According to an article in Newsweek, the former assistant believes that “Mueller punted the decision due to a disagreement between the Office of Special Counsel and the Justice Department over the liability of obstruction charges on the facts presented.”
“My thought is that the special counsel regulations are defective, because of the problem we see in this case, which is the special counsel is really not a truly independent counsel,” Zeldin said.
While the regulations establishing the rules for any Special Counsel ensure that the day-to-day management of the investigation is independent of the justice Department, ultimately Mueller was “obliged to adhere to Department of Justice policy and perhaps preference—unless he objects to their decision, in which case there has to be a notification to Congress,” Zeldin told Newsweek.
The legislation that established the rules that any Special Counsel must operate within are different than those in effect during the investigations of Presidents Nixon and Clinton where the Independent Counsels had autonomy and reported directly to Congress rather than the Justice Department which reports directly to the president, the subject of the investigation. This new situation, as we are now clearly seeing, contains an inherent conflict of interest for the Justice Department.
“The problem we find ourselves in today in part is Mueller went along with the Department of Justice’s policy that he felt that he was really duty bound to,” Zeldin said.
“So now we have the situation where everyone is clamoring for an understanding of what underlies Mueller’s belief that the evidence does not exonerate the president, and we don’t have an easy way to get it,” he added.
Zeldin believes that this lack of transparency makes Barr’s memo impossible to evaluate without seeing the underlying evidence that he drew his conclusions from.
“[Barr] just pulled out one sentence from the report and, like most things, things don’t make sense until you see the full context, so we’re also left groping in the dark,” Zeldin said. “That’s the problem.”
He sees a potential conflict between the Office of Special Counsel and the Department of Justice as the likely reason as to why the special counsel did not push for a subpoena and deferred to the Justice Department’s traditional decision to not prosecute.
With the decision then left in the hands of Attorney General Barr — who was nominated for his position because of an unsolicited memo he sent to Trump on the topic of why a sitting president cannot by definition commit obstruction — and no ability to look at the full Mueller report and the underlying evidence, many people will see the decision to not charge President Trump with obstruction as a politically motivated fix that was carefully engineered by Republicans to avoid a larger public clamor for impeachment.
Let’s just say that, with Zeldin’s comments in mind, unless we see the full Mueller report and the evidentiary details used to compile it, it would be surprising if that was not the case.
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Original reporting by Jessica Kwong at Newsweek.