For Mueller, self-effacement is patriotic
By NOAH FELDMAN | Bloomberg Opinion | Published: May 29, 2019
The sphinx finally spoke: But much like his ancient predecessor, special counsel Robert Mueller didn’t resolve any mysteries. At his surprise news conference Wednesday to announce his retirement, Mueller essentially repeated what he had written in his report. He didn’t take questions. He said he didn’t plan to say anything more in public. And he warned Congress that if called to testify, he wouldn’t say anything beyond what was in the report — which he called “my testimony.”
Just about the only new point that Mueller made was to stand up for his team and justify their investigation of obstruction of justice as part of the probe into Russian meddling in the 2016 election. But even this point was made very subtly, and is unlikely to deter President Donald Trump or his supporters from future attacks on Mueller and his staff.
What was the meaning of Mueller’s cryptic performance? Most fundamentally, Mueller wanted to take himself out of public discourse — forever. He could have pushed back on Attorney General William Barr’s distortion of his report’s public reception. We know that Mueller wasn’t happy about that, because he both wrote to Barr and called him to express concern about Barr’s misleading summary.
Yet in his one moment in the sun, Mueller was completely silent about his disagreement with the attorney general. He avoided the topic altogether. He even expressed appreciation that Barr had released almost all of his report to the public.
Muller didn’t praise Barr otherwise. Nor did he mention former Deputy Attorney General Rod Rosenstein, who both protected his investigation and then participated in Barr’s summary of his work.
These strategic silences strongly indicate that Mueller doesn’t want to be involved in any give-and-take with Barr or Rosenstein — or anyone else for that matter.
Then there was Mueller’s rather remarkable statement that although there had been “talk” of an appearance by him before Congress, he would not be prepared under oath to amplify anything in the report. This was comprehensible only as a direct message to Democratic House leaders: If you subpoena me, I won’t say anything interesting. You won’t like the theater that follows, because I will refuse to answer your questions except by repeating what’s in the report.
Seen from a constitutional standpoint, this assertion is actually a little doubtful. If called to testify before Congress as a private citizen who has stepped down from the Department of Justice, Mueller wouldn’t have any obvious right or authority to refuse to answer legitimate questions.
But that may not matter as a political reality. Mueller understands perfectly well that the House Democrats now have to make a political calculation about whether they would gain more by bringing Mueller in to testify and drawing renewed attention to Trump’s possible wrongdoing, or whether they would end up losing ground if they appeared to be badgering Mueller.
The second important meaning of Mueller’s minimalistic statement is that it can be counted as a win for the Trump administration.
To be sure, Mueller made a point of saying that if he could have concluded that Trump didn’t commit a crime, he would have done so. And he reiterated the extremely tenuous reasoning contained in the report to the effect that he would not have stated that Trump committed a crime, because doing so would be unfair to a president who would not get charged and so would not get a day in court to defend himself.
Perhaps in Mueller’s mind — the mind of a lawyer’s lawyer — this arcane, legalistic explanation is meant to suggest that Trump may very well have been guilty of obstruction of justice. Indeed, even with respect to collusion with Russia, Mueller stated only that his investigation didn’t reveal enough evidence to charge a conspiracy.
But to the rest of the world, the upshot of Mueller’s choice of words is to enable Trump and his supporters to say that the report cleared the president. Which Trump did in a tweet, just a half-hour later.
By promising or threatening future silence, Mueller is in effect telling Trump that he will not go out in public and contradict Trump’s claims of vindication in comprehensible words made out of short syllables.
Having opted for an indirect approach that practically invited Barr and Trump to distort his report’s findings, Mueller doubled down on that same strategy.
The third and final takeaway is surely that Mueller believes that his future silence is good for the republic. As a patriot and public servant, Mueller is doing everything he can to fight against becoming a politicized or partisan figure. His goal seems to be avoiding becoming James Comey, another former FBI director who managed to enrage Democrats and Republicans in succession and whose testimony before Congress about Trump and Russia was a three-ring circus.
No doubt there is some personal preference here. But Mueller is also trying to send the signal that true public servants avoid making the story about themselves — that self-effacement is a form of patriotism.
This viewpoint is so archaic in the era of Trump that it may seem naive or deluded. It could easily be argued as a matter of realpolitik that by withdrawing from the public fight, Mueller is enabling Trump.
Mueller, it seems, doesn’t care. He’s a throwback to the past — maybe the ancient past. The sphinx has spoken his mysterious truth. Now he just wants to be left alone.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”