(Reuters) - The center held. The institution prevailed. The American convention that prosecutors must act fearlessly and independently survived a president who routinely scorned and derided an investigation into whether his campaign colluded with Russia.
Regardless of what you think of the outcome of Special Counsel Robert Mueller’s nearly two-year investigation of Russian interference in the 2016 presidential campaign, you should be heartened by the process that led to it.
Attorney General William Barr, as you doubtless know, said Sunday in a letter to Congress that Mueller’s investigation “did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.” Barr’s letter said that the special counsel thoroughly examined whether President Trump attempted to obstruct the Russia investigation but left the ultimate decision on the president’s criminal liability to the Justice Department. Barr said he and Deputy AG Rod Rosenstein “concluded that the evidence developed during the special counsel’s investigation is not sufficient to establish that the president committed an obstruction-of-justice offense.”
The president called the outcome “a complete and total exoneration,” telling reporters Sunday that the Mueller investigation “was an illegal takedown that failed.” Trump even said Monday that Mueller had behaved honorably in the investigation, after nearly two years of tweets calling the probe a “witch hunt” and railing against the “angry Democrats” on Mueller’s team.
As Attorney General William Barr recounted in his letter summarizing Mueller’s still-unseen report, the special counsel’s investigation was comprehensive: The special counsel employed 19 lawyers and 40 FBI agents and other professionals; issued more than 2,800 subpoenas and requests for information from foreign governments, executed nearly 500 search warrants and interviewed about 500 witnesses.
That alone is proof, said New York Law School professor Rebecca Roiphe, a scholar of prosecutorial independence, that rule-of-law norms remain strong, despite the president’s siege. “The clear winners are the institutions and the professionals,” Roiphe said. “No judgments (by Mueller) were overruled. No decision was changed. In that way, the institutions held up.”
Law professor Jonathan Turley of George Washington agreed, even though he said he was skeptical from the start of the investigation that Mueller would find conclusive evidence that the Trump campaign colluded with the Russian government or that the president obstructed justice. “The rule of law was upheld here,” he said. “The system worked. Even in the most hostile and aggressive environment, the Justice Department maintained independence.”
If Trump’s opponents lose faith in the system as a result of Mueller’s findings, Turley said, it’s because news outlets wrongly inflated their expectations. Turley said uninformed claims that Trump campaign officials engaged in collusion contributed to any erosion of the ideal of prosecutorial independence. “People wanted Mueller to rid us of this troublesome president,” he said. “Mueller applied the law.”
Prosecutorial independence, in other words, proved sufficiently resilient to allow the special counsel to complete his investigation and file a report on his results to the Justice Department.
Turley and Roiphe offered different opinions on whether Mueller veered away from the rule of law by leaving it to Justice Department officials to decide whether the president had attempted to obstruct justice. Turley, who said any obstruction case would have been “laughed out of court,” said Mueller should have acknowledged as much in his final report instead of punting to DOJ.
Roiphe, on the other hand, said Mueller exercised admirable prosecutorial judgment. According to Barr’s letter to Congress, the special counsel’s report “does not conclude that the president committed a crime (but) also does not exonerate him.” To investigate further, Roiphe said, Mueller’s team would probably have needed the president’s testimony. Given that Trump’s lawyers refused to allow him to be interviewed, Roiphe said, the special counsel would have had to issue a subpoena – which would, in turn, have led to a U.S. Supreme Court fight that would have divided the country.
Instead, Roiphe said, Mueller opted to leave it to those with political accountability – the Attorney General in a charging decision or Congress in an impeachment proceeding – to judge the evidence of obstruction. “I don’t know how Mueller could have made the decision in an apolitical way,” she said. “I think he made the right decision.”
The next test of prosecutorial independence in the Mueller investigation will be the Justice Department’s release of a redacted version of the special counsel’s report. Turley, who testified in favor of Attorney General Barr’s nomination at the AG’s Senate confirmation hearing, said he’s confident the Justice Department intends to be as transparent as possible while retaining grand jury secrecy. Roiphe said the public release of the special counsel’s findings will reassure skeptics on the right and the left that the Mueller investigation was fair and complete.
“There will always be people on both sides who equate the rule of law with a win for their side,” Roiphe said. “The goal is, except for the people who will never be satisfied, that people can and do have faith in the system.”
If that’s Robert Mueller’s legacy, I think he’ll take it.
The views expressed in this article are not those of Reuters News.