Reading the Daily Kos comment threads since the delivery of Robert Mueller’s report to the Justice Department, I am seeing a profound sense of dismay from many readers who hoped to see Donald Trump and a cadre of his associates dragged out of the White House in cuffs. That irresistible fantasy has now been put to rest as we await information on Mueller’s findings short of criminality. But viewing Mueller’s report as the endgame, which was easy to do, was probably never the correct application of his mandate. Indeed, as we watched the investigations spun off from Mueller’s work to other jurisdictions such as the Southern District of New York, it became clearer by the month that the special counsel and his report were the starting point for the process of justice, not the endpoint.
Based on the rules governing past independent counsels such Kenneth Starr during Bill Clinton’s presidency, we have tended to view the investigations of those counsels as distinct and conclusive. When they were finished, the investigation was over and the conclusions were resolute. They either violated laws or they didn’t, and their ethical transgressions were laid out in written form for Congress to weigh their impeachability. But precisely because the independent investigation into Clinton began in 1994 focused on a real estate deal known as Whitewater and ended with perjury and obstruction of justice accusations lodged against Clinton four years later for his efforts to cover up an unethical but not criminal affair, Congress changed the terms of how independent investigations would be conducted in the future. Attorney generals were given much more control over the process, and the way Deputy Attorney General Rod Rosenstein used that authority appears to have resulted in a process that kept Mueller focused more narrowly on the collusion and obstruction of justice probes related to Trump while spinning off ancillary findings of potential criminality to other federal prosecutors.
Mueller seems to have attacked those portions of his investigation with great discipline and my guess is, for the good of the republic, he ended his investigation when he thought he had explored his mandate conclusively. As Lawfareblog.com’s Benjamin Wittes explained, that set his appointment apart from those of previous independent counsels.
“Usually when we say the Mueller investigation is wrapped up, what we mean is that entire investigation is done,” he told MSNBC Friday night, “but that’s clearly not what we mean here. What we mean here is that Mueller has decided that his role in the investigation is done, that he’s answered the principle questions he was asked to address.”
Former FBI Assistant Director Frank Figliuzzi added that Mueller likely viewed his investigative purview as limited in the bigger picture of Trump’s transgressions and potential criminality.
“It would be very much like Mueller to say, ‘I’m all about our system of justice, I’m all about the rule of law—you don’t need me anymore but the system will take care of what remains,’” Figliuzzi observed. In other words, Mueller uncovered what was within his scope and now trusts that justice will be carried out by the cadre of prosecutors picking up where he left off.
What that means for the American public is still a great deal of uncertainty in terms of immediate answers. How much of his report will we ultimately see? Did Trump commit crimes that Mueller decided he either couldn’t prove or simply couldn’t charge based on Justice Department guidelines? What will Congress do with the information? Will Trump, his family members, and other associates ever be charged with crimes beyond the scope of Mueller’s mandate? What about Roger Stone and other Mueller threads that still seem to be dangling? This is the grey the American public is now living in and, yes, it’s uncomfortable.
I get people’s bafflement at the fact that Mueller didn’t bring more indictments before concluding his investigation. I, along with probably everyone else reading this, would like to see Trump removed from office one way or the other. He is by far the pettiest, least intelligent, least mentally and temperamentally fit, least civically minded, and worst public servant imaginable to be serving as president. He has transformed the entirety of the federal government into an apparatus dedicated solely to pumping up his flagging ego.
Beyond that, people understandably want to see justice done, and there’s a feeling among a large portion of the population that something profoundly unjust took place in 2016 and that injustice has now infiltrated the Oval Office. But unjust and criminal are not exact equals, which is where the grey area of impeachment now comes into play. As House Judiciary Chair Jerry Nadler has long argued, not all criminal offenses are impeachable and not all impeachable offenses are criminal.
So as federal prosecutors move forward with the criminal strands left behind by Mueller, Congress will now move to the even less certain political terrain of whether Trump’s conduct during the campaign and also in office is impeachable. It’s not the closure people were hoping for, but the process must continue to play out. And as Americans we must continue to trust in and, when necessary, work to keep that process in check. It’s not going to be easy, but this thing ain’t over by a long shot.