Donald K. Stern: More needed from Mueller
MONTEREY — After FBI Director James Comey held a press conference in July 2016, I wrote in these pages ("Comey went beyond FBI's role," July 20, 2016) that he should not have publicly announced his view of the evidence concerning Hillary Clinton's use of a private email server and, most definitely, should not have offered his personal opinion that her actions were "extremely careless."
In my view, Comey went well beyond the proper role of the FBI and usual Department of Justice norms. I did not suggest, however, that Comey should be fired for this step. Nor did I anticipate that President Trump would do just that (as a way to sidetrack the Department of Justice investigation into Russian interference in the 2016 election), that Deputy Attorney General Rod Rosenstein would provide cover to Trump (perhaps inadvertently) by giving his written opinion that Comey did violate DOJ policy, or that Comey's firing would lead Rosenstein to appoint Bob Mueller as special counsel to investigate the Russian role and any possible obstruction of justice. Still, I did believe, and still do, that Comey was wrong in what he said and when he said it.
So, why then do I contend now that Mueller's recent press conference, where he said very little and made clear he did not want to appear before Congress, swung too far in the other direction? While I think Comey should have said almost nothing, I believe that Mueller said too little, too late. This situation is much different and called for a different response.
First, Mueller's role was not strictly speaking as a federal prosecutor. His mandate was to investigate, determine the facts, prosecute those crimes that are justified and permitted, and (this is important) make a full report to DOJ and to Congress. This last step is not what federal prosecutors usually do; it reflects the unique role of special counsel and that Congress plays in assessing the conduct of a president who is being investigated by a special counsel.
Second, Mueller has a right, even an obligation, to correct the misinformation provided by Attorney General Barr after Mueller submitted his report to DOJ. There was no good reason for Barr to give a skewed summary of the Mueller report, when the report itself contained a more accurate reflection of the contents and contained no information needed to be redacted. Barr wanted to provide an alternative narrative for public consumption and it was pretty effective.
Similarly, Mueller needs to make plain — as does the report itself — that the reason he did not make a formal decision on whether the president could be prosecuted for obstruction of justice was because of a DOJ policy not permitting an indictment of a sitting president. Barr went ahead, weeks in advance of Mueller's first and only public statement, to baldly state that there was no factual basis to indict Trump. This is not a decision either consistent with the facts laid out in the report or the role of the attorney general in this unique situation.
As Mueller strongly suggested in his press conference, since he couldn't indict, he was providing the underlying facts to Congress so it can decide whether and when to move forward with further investigation and/or impeachment. If anything, Mueller was too subtle in his press conference in explaining this point and further testimony before Congress is needed.
This leads to my final point. It is important that Mueller provide the public with a better understanding of what his investigation concluded regarding Russian interference and the repeated (if not always successful) efforts by Trump to obstruct justice.
I fully appreciate that Mueller wants to and should restrict comments to the basic contours of the report. He can do so and still serve an important function in educating the public as to what he did and why.
While it would be good for everyone to read the full report itself, that will not happen. We need an honest broker to explain it in digestible terms. This is in the best interests of our democratic institutions.
Donald K. Stern is a former United States attorney for the District of Massachusetts. He is a part-time resident of Monterey.
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