Did Mueller Fail?

Quinta Jurecic
Monday, November 2, 2020, 12:00 PM

Returning to this question helps clarify the stakes as the country decides whether to grant Trump a second term.

Scenes outside the House Intelligence hearing on the Mueller report. (Flickr/Victoria Pickering, https://flic.kr/p/2gGGjsV; CC BY-NC-ND 2.0, https://creativecommons.org/licenses/by-nc-nd/2.0/)

Published by The Lawfare Institute
in Cooperation With

Donald Trump never really moved past the Mueller investigation.

More than a year and a half—not to mention an impeachment—after the release of Special Counsel’s Robert Mueller’s report, the president is still hung up on the existence of the probe, complainingas he campaigns for a second term about the “Fake, Illegal, and Totally Discredited Witch-Hunt.” Even his pitch for reelection sometimes hinges on the Russia probe: “We should get a redo of four years,” he announcedat an August campaign rally in Wisconsin, grumbling over the FBI’s counterintelligence investigation of figures associated with his 2016 campaign.

So it is appropriate that the months before the election have seen the publication of two books by veterans of the Russia investigation: “Where Law Ends,” by Mueller prosecutor Andrew Weissmann, and “Compromised,” by FBI agent Peter Strzok.

The volumes arrive in a political environment that has soured on Mueller—even among those most vigorously opposed to the president. Long gone are the Mueller votive candles and “It’s Mueller Time” T-shirts popular when Weissmann and Strzok first began their work with the special counsel. Instead, while Trump grouses about the Russia “hoax,” journalists and political commentators have increasingly taken Mueller to task for what they see as the special counsel’s failure to hold the president to account.

“Trump shouldn’t be denouncing Mueller—he should be thanking him,” wroteJeffrey Toobin in the New Yorker.

“No failure was as spectacular or as consequential as Robert Mueller’s,” declaredDavid Frum.

In their bookchronicling the first three years of Trump’s presidency, Washington Post reporters Carol Leonnig and Philip Rucker argued that Mueller “fumbled the moment.”

Weissmann’s contribution, “Where Law Ends,” tosses a live grenade into this discussion. Yes, argues one of Mueller’s top prosecutors, the investigation did fall short, and Weissmann is blunt in assigning the blame. Strzok is gentler, but “Compromised” also doubles as an account of where the investigation, in Strzok’s view, may have fallen short. The story of the Mueller probe is, to some extent, a chronicle of institutions attempting and failing to check the worst of the president’s excesses. Returning to that story in the days before the election helps clarify the stakes as the country decides whether to grant Trump a second term. Rather than asking whether Mueller failed, though, the better question is whether anyone could have succeeded.

The two halves of the Mueller investigation—the probe into Russian efforts to interfere in the 2016 election, and the probe into Trump’s attempts to hamstring the investigation itself—offer a template of sorts for the president’s behavior throughout the rest of his term. Again and again, he has sought out foreign help in winning reelection, pressuring Ukraine in the scandal that led to his impeachment and, according to John Bolton, “pleading” with Chinese President Xi Jinping to aid his electoral chances by increasing Chinese purchases of American soybeans. Meanwhile, Trump’s repeated efforts to shut down Mueller’s work, along with his attempts to pressure the Justice Department into investigating his political enemies—as documented in the Mueller report itself—find later echoes in the department’s interference in the prosecutions of Michael Flynn and Roger Stone, not to mention Trump’s continued demands to prosecute people like former FBI Director James Comey. There is little reason to think that a second-term Trump presidency would be any more restrained. In this context, Weissmann’s and Strzok’s books read like warnings.

Both authors are writing to set the record straight—in Weissmann’s case, to establish the truth of the investigation’s conclusions in the face of repeated misrepresentations by Trump and Attorney General William Barr; and in Strzok’s case, to defend himself from years of vilification by the president and right-wing media over his text messages critical of the president, over which he was removed from the Mueller investigation and ultimately fired by the FBI. As one of the “angry Democrats” on Mueller’s staff, Weissmann weathered insults from Trump over the course of the Mueller investigation; he reveals in “Where Law Ends” that at one point he offered the special counsel his resignation after a Trump tweet. (Mueller refused.)

Strzok, though, was a far more regular punching bag for the president, who has tweeted about him50 times and repeatedly called for his arrest.

Given the sheer volume and viciousness of Trump’s diatribes against Strzok, one might have expected “Compromised” to be the more personal project of the two books. But Strzok remains businesslike throughout, sometimes frustratingly so, as if to showcase his professionalism in the face of the president’s attacks on his integrity. Weissmann’s book, by contrast, is packed both with information on the process of the investigation—unlike Strzok, he remained on Mueller’s team through the end of the special counsel’s tenure—and with details on intraoffice politics and blunt expressions of Weissmann’s disagreements with the scope and management of the special counsel’s work. In response, Mueller himself issued a rare statementpushing back against Weissmann’s characterization of the investigation as hemmed in by the caution of Mueller’s deputy, Aaron Zebley. And some former Justice Department officials, like Randall Eliasonand Carrie Cordero, have denounced “Where Law Ends” as a betrayal of Weissmann’s teammates in the special counsel’s office.

Whatever one thinks of its score-settling, Weissmann’s book is the first complete insider account of the investigation, and his arguments merit serious evaluation. So, too, does Strzok’s more restrained critique. Most of the components of these critiques have been presented before by commentators and journalists, but it’s a different matter to hear the criticism coming from those who actually worked on the probe.

Strzok’s analysis of the invesigation’s potential failings focuses on the counterintelligence aspects of Mueller’s work—the counterintelligence threat posed by the president being the larger subject of his book. The issue of the extent to which Mueller’s investigation involved a counterintelligence as well as a criminal component became a subject of discussionalmost as soon as the special counsel was appointed: In March 2017, FBI Director James Comey publicly announced the Russia investigation “as part of [the FBI’s] counterintelligence mission,” and Deputy Attorney General Rod Rosenstein’s letter appointing Mueller described the special counsel as continuing the investigation described by Comey. So many commentators assumed there was a significant counterintelligence component to Mueller’s probe.

But it remained unclearto what extent the appointment order and underlying special counsel regulations allowed for an investigation focused on counterintelligence, as opposed to criminal, matters. And as Benjamin Wittes notedwhen the Mueller report was released in April 2019, the report itself set that speculation to rest—or, at least, should have: The special counsel’s work was focused on criminal violations only, and the counterintelligence portions of the investigation were passed back to the FBI. As a result, the report left key issues un- or under-addressed—in particular, the extent of any noncriminal coordination between Trump’s businesses and his campaign with figures linked to the Russian government, and the risks posed by Trump’s apparent financial entanglements with Russia.

The question, then, is what became of the FBI’s counterintelligence work in the wake of the Mueller report. “Compromised,” which was published in early September, arrived shortly after House Intelligence Committee Chairman Adam Schiff cast doubt on whether the bureau had really picked up the baton, stating in a letter to a federal court, “The Committee ... has reason to believe, based on its oversight work, that the FBI Counterintelligence Division has not investigated counterintelligence risks arising from President Trump’s foreign financial ties.” The Senate Intelligence Committee addressed some of these counterintelligence risksin its August capstone report on Russian interference in 2016, but it did not conclusively address whether the executive branch had continued its side of the work.

Strzok provides important context as to why the Mueller team focused its attention more narrowly on criminal activity—but he also warns that the baton may have been dropped. “The work of any special counsel is by definition focused on criminal behavior,” he writes, expressing the view that both the special counsel regulations and the appointment order constrained Mueller’s work to investigation of criminal matters. Strzok describes himself as having struggled to create a system through which the special counsel’s office could effectively investigate counterintelligence leads and pass those leads back to the FBI without abandoning them entirely. “Even at the time that I left Mueller’s team,” he says, “we were still looking for the right way” to handle this challenge. And he worries: “[I]f you were an FBI agent today, would you be looking to stick out your neck to show that Russia aims to repeat in 2020 what it did in 2016—once again with Trump’s explicit encouragement?”

While Strzok worked in counterintelligence, Weissmann spent his career as a prosecutor, and his “Where Law Ends” is appropriately focused on the criminal, rather than the counterintelligence, aspects of the Mueller investigation. Weissmann is blunt about what he sees as the failings of the investigation, writing, “We could have done more.”

In Weissmann’s view, the failure to do “more” largely comes down to a failure of nerve on the part of the investigation’s leadership—chiefly Zebley, Mueller’s deputy. (Strzok, for what it’s worth, has high praise for Zebley.)

For journalists watching the investigation as it unfolded, it became clear at some point that the special counsel’s office took a narrow view of its mandate under the appointment order. Consider, for example, Mueller’s decision to spin off the investigation of Trump’s former lawyer Michael Cohen to the U.S. Attorney’s Office for the Southern District of New York, rather than to keep that probe within Mueller’s office. Weissmann writes that he was initially on board with the decision to pass along Cohen, but he bristled at other decisions intended to keep the investigation lean. Throughout the book, he repeatedly objects to Mueller’s—or, in his view, Zebley’s—strict reading of the appointment order, which led to the office declining to pursue not just Cohen but Trump’s financial records as well.

“The limitations of our appointment order, coupled with the reticence of Aaron to test them and antagonize the White House, would come to feel like fighting with one hand tied behind our back,” he writes. Later, he laments, “The inability to chase down all financial leads, or to examine all crimes, gnawed at me, and still does.”

Weissmann similarly objects to the office’s decision not to subpoena the president. Instead, Mueller made do with a sheaf of written answers from Trump and his lawyers—some of which, newly unredacted text in the report makes clear, Mueller’s team considered to be possible lies. Mueller and Zebley, Weissmann argues, balked in the face of possible opposition by the Justice Department to a subpoena, choosing to take the path of least resistance, rather than risk provoking Trump into firing Mueller. Likewise, he reads the choice not to pursue Trump’s finances as an act of surrender in the face of implicit and explicit threats from the White House as to what might happen if Mueller were to dig into the president’s business history.

If Mueller did indeed back away from these leads as a means of placating Trump, that would be troubling—an abdication of the special counsel’s work. But there are hints throughout “Where Law Ends” that what Weissmann views as bad calls might also be reflections of different priorities on Mueller’s part. Describing Mueller’s approach to the investigation, Weissmann writes, “we had to go straight for the arteries, and leave the capillaries, to get the job done before we were dead.” The core of “the job” was “investigating Russian interference in the election—thoroughly documenting, for the American people, how our democracy had been tampered with and attacked.” This description sounds like a close cousin of the counterintelligence concerns that animated Strzok and that, ironically, Mueller understood to be foreclosed to him.

But the lines between criminal and counterintelligence investigations are not rigid, and Mueller was, in fact, able to produce a detailed account of Russian efforts to intervene in the 2016 election. (At his first and only press conference after the release of the report, he closedhis remarks by noting that the “multiple, systemic efforts to interfere in our election … deserve[] the attention of every American.”) In other words, if Mueller’s view was that the public urgently needed to know the office’s findings on election interference—and that this was the core of the special counsel’s work—perhaps he assessed that the investigation needed to move quickly in order to both charge the cases it could bring and release its findings to the country. An extended fight over a subpoena to the president would almost certainly have dragged that process out. And as for Trump’s financial information, consider that the Manhattan district attorney is still litigating over access to those documents over a year after the office first issued a subpoena and even after a favorable Supreme Court ruling.

The Mueller investigation was not perfect. It made mistakes. Compared to the Senate Intelligence Committee investigation, it produced a scanter record of interactions between the Trump campaign and business and individuals linked to the Russian government. Depending on one’s definition, perhaps this constitutes a failure. But it is also worth remembering that the material revealed first by the indictments brought as part of Mueller’s investigation, and then by the Mueller report itself, were incredibly damning. The indictments and the report made it unambiguously clear that Russia had interfered in the 2016 election through social media influence operations, through the hacking and leaking of Democratic Party and Clinton campaign emails, and through repeated attempts to reach out to the Trump campaign—prominent members of which were all too happy to receive the help and certainly did not rebuff it.

The report also set out how, as president, Trump repeatedly tried to block Mueller from uncovering what had happened and twisted the arm of the Justice Department to prosecute his political enemies. It is true, as Weissmann argues, that the Mueller report’s muddled language around Trump’s possible obstruction of justice gave room for Attorney General Barr to misrepresent the report’s conclusions to the press. Mueller chose not to explicitly state that the president had committed a crime, reasoning that flowed from the Office of Legal Counsel opinion forbidding prosecution of a sitting president, and instead arrived at logic-puzzle-like phrasing: “[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state.” This allowed Barr to soft-pedal Mueller’s conclusions and portray the report as friendlier to Trump than it really was.

But throughout his year and a half as attorney general, Barr has proved himself willing again and again to distort both facts and Justice Department traditions in favor of the president, reaching down to lighten the department’s sentencing recommendation in the Stone case and even moving to dismiss Flynn’s plea agreement altogether. It is nice to imagine a world in which Barr received a copy of the Mueller report and conveyed its contents with complete accuracy to the public, after which Republican members of Congress dutifully reconsidered their support for the president. That world, alas, is not ours. And it wouldn’t be ours even if Mueller had played his cards more aggressively.

The special counsel’s confusing language made Barr’s dissembling and Republicans’ insistence on Trump’s innocence go down more smoothly, but they have shown themselves capable of surmounting greater obstacles than clear language when leaping to the president’s defense. In the weeks after the release of the Mueller report, congressional Republicans and right-wing media had the comparatively easy task of misrepresenting a dense, 448-page document that most people did not have time to read.

Months later, they were faced with the project of misrepresenting a five-page summary—released by the White House itself—of Trump’s phone call with Ukrainian President Volodymyr Zelensky, a document that ultimately led to Trump’s impeachment. While material from the Mueller investigation surfaced over the course of two years, arguably inuring the public to some of Mueller’s findings, the faster pace of the Ukraine scandal kept the shock fresh—yet congressional Republicans were still able to insist that the president had committed no conduct meriting removal from office. The situation became even more absurd in August 2020, when Republicans on the Senate Intelligence Committee managed to lie to the public about the substance of their own reporton Russian election interference—insisting that the committee’s work showed no “collusion” between the Trump campaign and the Russian government even when the report itself displayed the opposite.

The simple reality is that the facts in these circumstances did not matter to the elected Republican Party leadership, and they would not have mattered any more if Mueller had been more aggressive in his investigatory methods or clearer and more direct in his conclusions. Even if the House of Representatives had responded to the Mueller report with an impeachment inquiry, the end result would have been a Senate vote to keep the impeached president in office perhaps six months earlier than the vote that actually took place.

Mueller gave Congress all the facts it needed to do its job. The problem was not an investigative problem. It was that not enough members—and specifically not enough Republican members—wanted to do it.

Ultimately, the argument that Mueller failed is the flip side of the coin from the deification of Mueller early in the investigation. Too much was expected of him—and too little expected of the country’s political leadership; of course he was unable to deliver in their stead.

Weissmann, unlike some commentators, acknowledges this limitation. “Would it have made any difference?” he wonders, of what he sees as Mueller’s unwillingness to push further. “Unlikely. But that is not the point … the facts should still matter.”

Here Weissmann is not weighing consequences or accountability for the president but the extent to which he fulfilled his own role as a prosecutor. He may be being too hard on himself, his colleagues and his boss. The special counsel’s prosecutors existed within the larger universe of a decaying political system and a right-wing media environment that circulates and magnifies falsehoods. A 2018 studyfrom Harvard’s Berkman Klein Center, for example, suggests that media outlets on the right such as Fox News and Breitbart played a far greater role in “sowing confusion and distrust” in 2016 than did Russian trolls. Meanwhile, Republican senators are still busy parrotingthe conspiracy theories about Ukraine that ultimately led to Trump’s attempted extortion of Zelensky and his impeachment, and right-wing media has seized on a dubious storyabout Joe Biden’s son Hunter that is an outgrowth of that same debunked narrative about Ukraine. Russian actors may or may nothave seededthose theories, but Trump and his supporters have provided fertile soil.

“Where Law Ends” closes with proposed reforms to the special counsel structure, and reconstructing the laws and regulations that govern the presidency will be crucial for recovering after Trump. Such work is valuable, but there is a limit to what it can do without a shift in the political climate. As Bob Bauer and Jack Goldsmith writein their own volume of proposed post-Trump reforms, the transparency enabled by such improvements in the legal system “ultimately works only if other institutions in the political system, and the American people, act on the information …. If a political system becomes so degraded and fragmented that political checks lose all or most of their bite, then no legal reform can help prevent abuse in this context.”

In recent weeks, Trump and his supporters have focused their outrage on Twitter and Facebook for the tech companies’ decision to limit the reach of the Hunter Biden story on their platforms. Jack Dorsey and Mark Zuckerberg are very different figures than Robert Mueller. But the increased aggression of major social media platforms in enforcing rules and norms against Trump and his supporters is, in some sense, a recognitionthat other institutions have failed in checking Trump’s abuses. There is a temptation for Trump’s opponents to look to the platforms, as they once looked to Mueller, as entities capable of solving the problem posed by Trump if they only were willing to push harder. But as my colleague Evelyn Douek has argued, “a tech company can’t change who the president is.”

Already, Trump’s intentions to abuse the presidency if he secures a second term are plain. The Washington Post reported recentlythat he is thinking of firing FBI Director Christopher Wray after the election over his disappointment that Wray has failed to announce an investigation of Joe or Hunter Biden. But as Nate Jones wrotein Lawfare shortly before the release of the Mueller report, two constitutional remedies exist “for dealing with potential counterintelligence threats in the Oval Office”: impeachment and removal, and “four-year terms of office.” The last real check on a president whose party has no interest in constraining him is, of course, the voters.

Quinta Jurecic is a fellow in Governance Studies at the Brookings Institution and a senior editor at Lawfare. She previously served as Lawfare's managing editor and as an editorial writer for the Washington Post.

Subscribe to Lawfare