The United States Law Week

Ex-Prosecutors Call Mueller Cautious as Trump Claims Witch Hunt

April 22, 2019, 8:43 AM

The Mueller report plainly did not exonerate President Donald Trump, but it could have been much worse for him and others eyed in the probe, including his namesake Don Jr., had they been investigated by a more aggressive prosecutor.

Despite cries from Trump and his allies over the past two years that the special counsel was heading a “witch hunt,” what the president—and the country—got in Robert S. Mueller III was a cautious prosecutor who didn’t charge more than he should have or as much as he could have, according to former federal prosecutors who read the partially-redacted report.

The tome spanning over 400 pages is noteworthy not only for highlighting evidence that Trump pressured officials to undermine and even end the investigation into his campaign’s ties to Russian efforts to throw the 2016 election in his favor, but also for its explanations of why Mueller didn’t make more forceful moves—like declining to subpoena Trump’s testimony after the president refused an interview, and declining to charge the president’s son for seeking negative information from Russia about his father’s opponent in the election, Hillary Clinton.

“Mueller’s caution makes the report all the more credible,” said Juliet Sorensen, a former Chicago federal prosecutor, now a professor at Northwestern Pritzker School of Law. His report doesn’t leap to conclusions, she said, noting instead that it “considers the strengths and weaknesses of the evidence gathered.”

The report is split into two main parts. The first focuses on coordination between the Trump campaign and Russian interference efforts—what had come to be known colloquially as the “collusion” part of the investigation. The second deals with obstruction of justice.

As to the first part, Mueller found evidence linking the Trump camp and hostile Russian efforts, just not enough, in his view, to bring criminal charges. On obstruction, Mueller declined to reach a decision. The report cited, among other things, Justice Department policy against indicting a sitting president and what could be resulting unfairness to Trump were Mueller to make charges against him that he wouldn’t be able to dispute in court. Instead, Mueller recounted evidence of the president’s serial efforts to thwart the investigation, leaving open the possibility of Congress impeaching Trump and removing him from office, charging him after he leaves office under whatever circumstances, or both.

But despite the damning, clinical nature of the lengthy report, it was much narrower than some had hoped or feared.

Mueller Not Hyper-Aggressive

“There was speculation that the investigation could go on for years, akin to the Ken Starr Whitewater effort, and was effectively an exercise of casting an extremely wide net in the hope of finding anything with which to prosecute the President,” said former federal prosecutor Joseph Moreno, referring to the sprawling probe into then-President Bill Clinton in the 1990s.

But the report cut against that speculation.

“In reality,” Moreno said, “the Special Counsel was much more circumspect and appeared to go out of his way not to pursue hyper-aggressive legal theories or let the probe go on indefinitely. He did not push the envelope on whether DOJ policy permitted him to indict a sitting President, and in fact seems to have adopted a very conservative approach and saw this more as a fact-finding exercise than a traditional criminal prosecution.”

Other prosecutors “might have shown less regard” for DOJ standards in this “novel situation,” said former Manhattan federal prosecutor Harry Sandick.

The special counsel’s decision not to charge Trump Jr. also “reflects an appropriately conservative approach,” said Sandick, a partner at Patterson Belknap Webb & Tyler LLP in New York. He said Mueller “recognized the high standard” for bringing such charges as well as “the existence of some novel issues with respect to the value of the information being discussed.”

A true “witch hunt” prosecutor might have charged Trump Jr. anyway, Sandick said.

Mueller also apparently “did not exert significant resources pushing into areas beyond collusion and obstruction, such as the Trump Organization, the President’s tax history, or the President’s family members,” added Moreno, a partner at Cadwalader in Washington.

“Mueller was given virtually unlimited time and resources and an incredibly talented staff, and yet he seemingly chose to keep his investigation focused on the core bases for which it was initiated.”

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: John Crawley at jcrawley@bloomberglaw.com; Jessie Kokrda Kamens at jkamens@bloomberglaw.com

To read more articles log in. To learn more about a subscription click here.