The Corner

Politics & Policy

Which Is More Likely?

Special Counsel Robert Mueller makes a statement on his investigation into Russian interference in the 2016 U.S. presidential election at the Justice Department in Washington, D.C., May 29, 2019. (Jim Bourg/Reuters)

Jonathan Chait objects to my being irritated by Robert Mueller’s “not exonerated” standard — an irritation I share with Alan Dershowitz, whom Chait amusingly describes as my “fellow conservative” — and proposes that “not exonerated” is not only an acceptable model in this instance, but an inevitable one:

Shortly after Mueller finished speaking, National Review’s Charles C.W. Cooke complained, “Investigators are supposed to look for evidence that a crime was committed, and, if they don’t find enough to contend that a crime was committed, they are supposed to say ‘We didn’t find enough to contend that a crime was committed’ … If a person doesn’t have enough evidence that someone committed a crime to contend that a crime was committed, he is obliged to presume his innocence.”

Of course. But the explanation for this apparent paradox, which apparently hasn’t crossed Cooke’s mind, is that Mueller does have evidence that Trump committed crimes. Pages and pages and pages of evidence, in fact.

Or, put another way, Mueller intended to send the message that he found clear evidence of obstruction but he was unable to say so because of the OLC rules.

Funnily enough, that had “crossed my mind.” But also in my mind was what Bill Barr said pretty clearly during his Senate testimony (at 00:34:25):

Now, we first heard that the special counsel’s decision not to decide the obstruction issue at the March 5th meeting when he came over to the department and we were frankly surprised that they were not going to reach a decision on obstruction. And we asked them a lot about the reasoning behind this and the basis for this. Special counsel Mueller stated three times to us in that meeting in response to our questioning that he emphatically was not saying that but for the OLP opinion he would have found obstruction. He said that in the future the facts of a case against a president might be such that a special counsel would recommend abandoning the OLC opinion but this is not such a case. We did not understand exactly why the special counsel was not reaching a decision.

This assertion was reiterated half an hour later, after Senator Grassley asked Barr for explicit confirmation of what Mueller had told him and his group (01:03:00):

Yes, he reiterated several times in the group meeting that he was not saying that but for the OLC opinion he would have found obstruction.

Chait is aware of this problem, which was raised by Dan Bongino among others, and tries to get around it like this:

Bongino realizes this comes down to either Barr or Mueller misleading the country about what Mueller’s report concluded. And yet, perched one step away from the correct answer, he insists it must be Mueller who is lying about the Mueller report. Ignore all the evidence of obvious crimes in the Mueller report. Ignore Mueller telling us that department policy prevents him from labeling those actions as crimes.

If you can’t trust the slavishly loyal attorney general, handpicked by a president whose sole criterion for the job is to ignore its ethical guidelines and protect him at all costs, who can you trust?

Trouble is, Mueller didn’t actually say what Chait is saying he said. He didn’t say that “Trump committed crimes”; Chait inferred it. And he didn’t say that “department policy prevents him from labeling those actions as crimes”; Chait inferred it. This being so, there’s no need for anyone to accuse Robert Mueller of being a “liar,” because there’s no need for anyone to accept Chait’s characterization of what Mueller said.

What Mueller did do — in the report, and yesterday — was set up a weird, Twilight Zone-esque standard of “not exonerated,” which was sufficient to annoy me and my fellow right-winger Alan Dershowitz but was not sufficient to put meat on the bones of Chait’s “this comes down to either Barr or Mueller misleading the country.” As is typical — and somewhat ironic, given my initial objection — Chait has it backwards here. The question before us is not, in fact, “who is lying?” but, “Which is more likely: That William Barr repeatedly lied under oath to the Senate about comments that were made before a group of people, or that Jonathan Chait has drawn the wrong conclusions from Robert Mueller’s ambiguous public statements?”

I’ll let Robert Mueller’s office answer that question. Here’s a joint statement that it put out with the DOJ yesterday:

The Attorney General has previously stated that the Special Counsel repeatedly affirmed that he was not saying that, but for the OLC opinion, he would have found the President obstructed justice. The Special Counsel’s report and his statement today made clear that the office concluded it would not reach a determination — one way or the other — about whether the President committed a crime. There is no conflict between these statements.

Well, then.

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