2. Mueller’s Non-Decision Rationale Was Incomprehensible
Not only did Mueller violate the controlling special counsel regulation by issuing a non-decision decision, he couldn’t coherently explain his rationale for doing so. During the recent hearing, Barr made this point in responding to Sen. Chuck Grassley’s question of whether Barr agreed with Mueller’s reasons for not deciding on obstruction of justice.
“I’m not really sure of his reasoning,” Barr replied. “I really could not recapitulate his analysis.”
Later, when Sen. John Kennedy asked the attorney general to explain again why Mueller said he couldn’t make up his mind on obstruction, Barr repeated, “I really couldn’t recapitulate it.”
“It was unclear to us when we first discussed it on March 5—the deputy was with me—and we didn’t really get a clear understanding of the reasoning,” Barr told the Judiciary Committee. And even after reading the final special counsel report, Barr noted, he still wasn’t “sure exactly what the full line of reasoning is” for not rendering a prosecutorial decision.
3. Mueller Continued to Investigate Obstruction Knowing No Prosecutorial Decision Would Be Forthcoming
During the Judiciary Committee hearing, Barr added a third criticism of Mueller’s non-decision decision, testifying: “The other thing that was confusing to me was that the investigation carried out for a while as additional episodes were looked into, episodes involving the president. So my question is or was ‘Why were those investigated if at the end of the day you weren’t going to reach a decision on them?’”
Barr reiterated this point in a later exchange with Grassley, stating that if Mueller “felt that he should not go down the path of making a traditional prosecutive decision, then he should have investigated. That was the time to pull up.”
But he didn’t. Instead, Mueller continued the investigation through the midterm elections and crafted a 200-page screed painting Trump’s conduct as consistent with criminal obstruction of justice.
4. Mueller Applied the Wrong Standard
Barr highlighted another Mueller mistake in an exchange with Sen. Richard Blumenthal. Blumenthal began it by quoting Mueller’s claim that “if we had confidence after a thorough investigation of the facts that the president did not commit obstruction of justice, we would so state.” The Democrat senator then confronted Barr with his decision to “in effect clear  the president on both so-called collusion and obstruction of justice.”
Barr’s counter was devastating, both to Blumenthal and Mueller: “The difference is I used the proper standard,” he retorted. Barr went on to explain that Mueller’s statement “is actually a very strange statement.”
“The report says that they could not be sure they could clearly say that [Trump] did not violate the law,” Barr continued, before stressing, “as you know that’s not the standard, we use in the criminal justice system.” Rather, “it’s presumed that someone is innocent, and the government has to prove that they clearly violated the law. We’re not in the business of exoneration, not in the business of proving they’d didn’t violate the law—I found that whole passage very bizarre.”
Sen. Thom Tillis later returned to this point, first noting that the special counsel concluded it could not exonerate the president on obstruction. “When is a special counsel in the business of exonerating a subject on an investigation?” Tillis queried Barr. “They are not,” the attorney general replied.
5. Mueller Got Obstruction Law Wrong Too
One of the problems with Mueller’s approach to the question of obstruction of justice, Barr explained during the hearing, was the special counsel “trying to determine the subjective intent of a facially lawful act.” That approach “permits a lot of selectivity on the part of the prosecutors, and it’s been shot down in a number of other contexts.”
While Barr did not further expand during the hearing on Mueller’s misinterpretation of the law, he had previously destroyed the idea that Trump’s conduct could constitute criminal obstruction of justice.
6. Mueller Sent His Boss a ‘Snitty’ Letter
Mueller submitted his special counsel report to Barr on March 22, but that report could not be made public until necessary redactions were made. Pending the redactions, Barr released a letter on March 24, announcing Mueller’s conclusion: no collusion, and no decision on obstruction of justice.
Mueller didn’t like the way Barr’s letter was playing in the press, so he sent a letter on March 27, complaining to his boss that Barr’s March 24 letter “did not fully capture the context, nature, and substance of this Office’s work and conclusions,” and asking Barr to release the executive summaries of the special counsel report.
The public did not learn of Mueller’s March 27 letter until the day before Barr hit the Hill to discuss the special counsel’s findings, when the Washington Post published a leaked copy of Mueller’s letter. The timing proved politically expedient: Mueller’s criticism of Barr dominated the news cycle in the lead up to the hearing, and Democrats hammered Barr throughout the hearing for his supposed misrepresentation of the special counsel’s report.
While this tactic may have pleased some partisans, Barr’s response resonated with the open-minded. When asked his reaction to the letter, Barr testified that he called Mueller, “I said, ‘Bob, what is with the letter? Why don’t you just pick up the phone and call me if there is an issue?’” The attorney general added that “the letter is a bit snitty and it was probably written by one of his staff people.”
On the merit of Mueller’s complaint, Barr explained during the hearing that he asked the special counsel if “he was suggesting that the March 24th letter was inaccurate and he said no, but that the press reporting had been inaccurate and that the press was reading too much into it.”
In short, Mueller wanted Barr to counter the media’s coverage by issuing the executive summaries from the special counsel report. But Barr told Mueller he “was not interested in putting out summaries and wasn’t going to put out the report piecemeal.” “I wanted to get the whole report out,” Barr explained, which he did on April 18.
In a head-to-head contest, Barr came off the bigger man, with the leak of Mueller’s letter harming the special counsel’s reputation much more than that of the attorney general.
Further, while sending a snitty letter to the attorney general was a dumb move, even dumber was putting pen to paper to complain that Barr’s letter announcing the conclusion of the special counsel “did not fully capture the context, nature, and substance” of the report. This complaint was a tacit acknowledgement that the special counsel’s 200-page discussion of obstruction of justice served solely to show one thing: orange man bad.
7. Mueller Made Some Horrendous Staffing Choices
The letter incident proved yet another problem with Mueller’s handling of the probe: his horrendous staffing choices. That Mueller would pick a team of “professionals” who would think it wise to draft the snitty letter, then convince Mueller to send it to his boss—or lacked the good sense to counsel against the move—speaks poorly of the man charged with investigating the president.
8. Mueller Could Have Previewed Barr’s Letter But Didn’t
While Mueller had no problem criticizing Barr’s March 24 letter after the fact, the special counsel demurred when Barr sought his input before he released the letter to Congress and the American people.
“I offered Bob Mueller the opportunity to review that letter before it went out, and he declined,” Barr explained in his opening statement. It takes some chutzpah to refuse to review a letter before it is dispatched, only to criticize it after the fact!
9. Mueller’s Team Was Responsible for Report Delay
In his March 27 complaint letter to Barr, Mueller bemoaned the media’s narrative and asked Barr to release the executive summaries of the special counsel report while the attorney general went through the necessary redaction process. As noted above, Barr refused because he wanted to get the full report out as soon as possible, which he did on April 18.
However, had Mueller done his job, the special counsel report could have been issued much earlier, thereby truncating the media spin of which Mueller complained. Barr made this point in his opening statement to the Judiciary Committee, explaining that when he met with Mueller in early March “I reiterated to Special Counsel Mueller that in order to have the shortest possible time before I was in a position to release the report, I asked that they identify 6E materials,” which are grand jury materials that statute prohibits from release.
Barr had asked that Mueller identity the 6E material “so we could redact the material and prepare the report for public release as quickly as we could.” But as Barr explained to the committee, “Unfortunately it did not come in that form . . . so there was necessarily going to be a gap between the receipt of the report and getting the full report out publicly.”
By failing to identify the grand jury material in the special counsel report—as his boss had requested—Mueller delayed the report release much beyond what would have been needed had he just done his job. “The problem we had,” as Barr explained, was “we could not identify the 6E material when the report came over. We needed the help of Mueller’s team.”
10. Mueller Didn’t Investigate (Or Report On) All Russian Interference
Mueller’s final misstep was the step not taken. Even though he was charged with investigating Russia’s interference in the 2016 presidential election, Mueller’s report omitted any discussion of whether the Kremlin fed dossier author Christopher Steele misinformation about Donald Trump. As I wrote on Monday:
Not once in the 448-page tome does Mueller mention an investigation into whether Russia interfered with the U.S. presidential election by feeding dossier author Christopher Steele misinformation.
But Mueller also did not charge Steele with lying to the FBI, or refer a criminal case against Steele to federal prosecutors, as he did when the special counsel uncovered evidence of criminal misconduct unrelated to the 2016 election. Given Mueller’s conclusion that no one connected to the Trump campaign colluded with Russia to interfere with the election, one of those two scenarios must be true—either Russia fed Steele disinformation or Steele lied to the FBI about his Russian sources.
These ten missteps make clear that Mueller wasn’t the right man for the job. But Barr is.