You had one job, James Comey scolded Robert Mueller last night at a speech last night in Charlotte, so why didn’t you do it? The former FBI director, whose firing sparked accusations of obstruction of justice against Donald Trump, claimed that he didn’t have a dog in the fight on the outcome of the special counsel investigation. However, Comey pronounced himself dissatisfied and suspicious that Mueller didn’t make the call on obstruction, and wondered why he left that decision to “the politicals”:
Former FBI Director James Comey said he had “great faith” in Robert Mueller, but he’s still confused by the special counsel’s decision to pass the buck on deciding whether President Donald Trump obstructed justice in the Russia investigation.
Comey, who was fired by Trump in May 2017, continued his ongoing feud with the president in his first comments since the release of Attorney General William Barr’s summary of the Mueller report at an event hosted by the Learning Society of Queens University in Charlotte Tuesday night. …
Comey said he wasn’t hoping for “a particular result” — despite the president’s penchant for calling him “Lyin’ James Comey” on Twitter — but did have a problem with Mueller not taking a position on obstruction and allowing Barr, a Trump appointee, to decide on filing an indictment.
“I can’t quite understand what’s going on with the obstruction stuff,” Comey said at the event. “I have great faith in Bob Mueller, but I just can’t tell from the letter why didn’t he decide these questions when the entire rationale for a special counsel is to make sure the politicals aren’t making the key charging decisions.”
To be fair, Comey’s not the only one wondering about that. I spoke with Andrew McCarthy yesterday on my show (at around the 4o-minute mark) about the same question. The entire rationale for a special counsel rests on the idea that the normal chain of command is too conflicted to be trusted with a decision on the specific investigation in question. Although the DoJ leadership retains the ultimate decision authority, the expectation is that the special counsel will at least make a recommendation one way or the other.
McCarthy earlier made pretty much the same complaint as Comey, although he reached an opposite conclusion from what Comey likely believes:
The Barr letter gingerly states that, after making a “thorough factual investigation” into alleged instances of obstruction, Mueller “ultimately determined not to make a traditional prosecutorial judgment.” Since making a prosecutorial judgment was Mueller’s job, that means he defaulted. What did we need him for?
Not only that, but Mueller determined that it would be better for the attorney general to make the prosecutorial judgment. So, for the millionth time, what the hell did we need a special counsel for? If the Justice Department, in Mueller’s judgment, was perfectly well-suited to make the call, how could there possibly have been a conflict so profound that it was necessary to bring in a special counsel in the first place? A special counsel, mind you, who recruited his staff from the Justice Department, transferred the cases he brought to Justice Department components, and, now, has ultimately delegated his decision-making responsibility to the Justice Department.
Perhaps this was Mueller’s subtle argument that he wasn’t really necessary at all. It won’t be clear until we see the full report, or at least as much of it as can be released, but certainly Mueller’s punt makes McCarthy’s point on obstruction. Since Mueller got appointed more for that reason than collusion — Comey’s FBI was still investigating the collusion issue when Trump fired him — it certainly acts as a rebuke to the decision to appoint a special counsel in this instance.
Rudy Giuliani has another explanation. He told Laura Ingraham last night that the punt on obstruction was an example of cowardice, although he lays the blame more on Mueller’s second-in-command Andrew Weissmann:
While the White House continues to hail the special counsel’s final report on the Russian probe as a win, President Trump’s personal attorney Rudy Giuliani blasted special counsel Robert Mueller’s impasse on whether the president committed obstruction of justice. In an interview on Fox News Tuesday night, Giuliani called it “totally inappropriate and totally unethical” and “pathetic.”
Giuliani told Fox’s “The Ingraham Angle” that Mueller’s findings, as they relate to the charge of obstruction, were “weak,” criticizing the FBI official for not “making up his mind.”
“I think there are two sides of Mueller. There’s the good side and the [Andrew] Weissmann side and I think Weissmann won a few of those battles. And I do think it’s pathetic that Mueller couldn’t make up his mind. I actually do,” said Giuliani. Weissman, who is the chief of the Justice Department’s criminal fraud section, helped manage the special counsel’s team.
Comey might find some rare common ground with Giuliani on this point, but also an important divergence. No doubt Comey had hoped for vindication over his firing, perhaps in part to counter what Inspector General Michael Horowitz and US Attorney John Huber might report about his handling of the Trump and Hillary Clinton probes. Instead, his friend Robert Mueller put the question of whether his firing constituted obstruction in the hands of William Barr and Rod Rosenstein, the latter of whom wrote the memo justifying Comey’s dismissal.
Mueller had to know how that decision would go when he punted, and from Comey’s perspective, that dodge looks pretty craven. It does from Giuliani’s perspective too, but for opposite reasons. Comey was invested in Mueller deciding to charge obstruction, so his dodge looks like a way out of being involved in taking on Trump. Giuliani’s obviously invested in the opposite, so Mueller’s decision looks like a “cheap shot” at Trump rather than an outright “exoneration.” Cowardly from both perspectives, but also an easy out for Mueller, who might have ended up resenting the role he reluctantly took to end this nonsense.