The Mueller fiasco proves that a special counsel position can’t work

“He took a mulligan and hit it into the lake.” So said historian Jon Meacham, my co-panelist on Sunday’s “Meet the Press,” in a quippy but devastating conclusion about Robert S. Mueller III. He did so after I had delivered the center-right legal world’s hardening conclusion that the report of the special counsel was not only incomprehensible but also indecipherable (news organizations are divided on something as basic as whether there are 10 or 11 specific fact patterns reviewed in Volume II) and profoundly irresponsible.

Page 8 of Volume II of the report, its “conclusion,” begins “Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President’s conduct.” But there was an implied conclusion in the report that Mueller left to Attorney General William P. Barr to make explicit as the Justice Department’s conclusion: There was insufficient evidence that President Trump obstructed justice or committed any other crime.

The sidebar chatter on whether a president can be prosecuted has nothing to do with this bottom line that there was insufficient evidence to conclude that the president committed any crime. Former U.S. Court of Appeals for the 4th Circuit judge J. Michael Luttig — one of America’s great legal minds, whose law clerks now populate the federal bench and highest levels of government — rarely goes on the record about law or politics.

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