This claim comes second-hand from the agents, not from the prosecutors themselves, so feel free to disregard it as hearsay. But it squares with reporting from a few weeks ago about Team Mueller’s deliberations, namely, that there was disagreement within the office as to whether Trump’s actions amounted to criminal obstruction. If that’s true then obviously there were people on staff who thought the president committed a crime.
Murray Waas’s sources claim to have spoken to two of them.
Privately, the two prosecutors, who were then employed in the special counsel’s office, told other Justice Department officials that had it not been for the unique nature of the case—the investigation of a sitting president of the United States, and one who tried to use the powers of his office to thwart and even close down the special counsel’s investigation—they would have advocated that he face federal criminal charges. I learned of the conclusions of the two former Mueller prosecutors not by any leak, either from them personally or from the office of special counsel. Rather, the two prosecutors disclosed this information in then-confidential conversations with two other federal law enforcement officials, who subsequently recounted what they were told to me…
One person who spoke to me reported grappling with the issue of what could be considered a breach of their colleagues’ confidence. But in part because of what they regarded as Attorney General Barr’s misrepresentations of the Mueller report, they believed it was important for the public and Congress to know what Mueller’s prosecutors had themselves privately concluded: that a charge of obstruction of justice was indeed merited by Trump’s actions in the Flynn matter.
Are House Democrats going to hear from anyone inside Mueller’s office or is the sum total of DOJ pronouncements about obstruction destined to come from Bill Barr, who’ll be back on the Hill to testify before the House and Senate next week? More importantly, do Democrats want to hear from anyone inside Mueller’s office? As harsh as they’ve been in excoriating Barr, first for enabling Trump’s “total exoneration!” claim with his summary of the Mueller report and then again for alleging “spying” by the DOJ on Trump’s campaign, Barr’s done them a political favor. So long as he’s the face of the Mueller report — no collusion, no obstruction — the political heat on House Democrats to impeach is at a simmer. If Mueller or one of his deputies were to come before Jerry Nadler’s committee, though, and claim that they thought Trump was guilty of obstruction and that the Mueller report was essentially an impeachment referral to Congress, that pot will boil over.
The problem for Pelosi and Nadler is that they have to at least make it look like they’re interested in impeachment, to keep their base happy. Nadler had no choice but to invite Mueller to testify, with a soft deadline of May 23. Question: If Mueller agrees, would the White House try to block him by asserting executive privilege? Could they assert executive privilege in his case?
According to a White House official, some Trump aides view [Mueller’s eventual testimony] as the welcome “capstone” of the investigation. “[It’s when] reasonable people say, ‘This is over,’” said the official, who told TIME the White House likely will not be involved in the decision and is not aware of any ongoing conversations between the White House and DOJ about the topic.
It’s unclear the White House would have the ability to stop Mueller’s testimony if he wanted to speak publicly. Mueller will leave DOJ employ and become a private citizen again “in the coming days,” says DOJ spokesman Carr. Once that happens, the Trump administration would have less sway over Mueller.
Barr has said publicly that he has no problem with Mueller testifying. And Trump waived whatever executive privilege he might have had to keep the Mueller report confidential by agreeing to its public release, a decision which I wonder if he now regrets. I’ll leave it to legal eagles to say whether that waiver of privilege would weaken any privilege he might have in preventing Mueller’s testimony. Assuming there’s nothing stopping Mueller from testifying, though, we come to another dilemma for Democrats: What if he declines to do so voluntarily? “I said everything I had to say in the report,” Mueller might announce, “and would prefer not to elaborate on it. The Attorney General speaks for the Department.” Furthermore, he and his deputies made clear in the report that they thought it’d be unfair to accuse Trump of a crime given the DOJ’s policy barring indictments of a sitting president. Since the president can’t be given an opportunity to clear his name at a trial, it’s not right for a prosecutor to allege that he broke the law. If that’s how Mueller feels, logically he’d have to refuse to say during testimony whether he or anyone else in his office thought Trump obstructed justice.
And so, if he tells Dems that he’d prefer not to testify, do they subpoena him? If they don’t, won’t their base flip out?
It’s precisely because Mueller’s unlikely to undermine Barr that Nadler might feel comfortable compelling him to testify. Mueller’s not going to go over the AG’s head and say something like, “Yes, our goal in the obstruction section was to invite Congress to impeach Trump.” Or “I disagree with Barr and believe that Trump obstructed justice.” If he’s not going to leave House Dems in a tight spot by pressuring them to impeach, then why not have him talk?