The conventional wisdom is that Robert Mueller did a very thorough job, and possibly faltered only in his failure to weigh on on the question of whether President Trump obstructed justice. But some commentators think Mueller could have done more.
Ron Klain writes:
... if expectations were too high for Mueller’s report, the inevitable disappointment was exacerbated by how Mueller fell short in what he delivered.
This starts with his failure to get Trump to answer questions in person....
In a run-of-the-mill criminal case, a prosecutor’s decision to bypass questioning a difficult figure might make sense; when we are seeking to learn whether a presidential candidate worked with a hostile foreign power to win an election, the public deserves to have that candidate answer questions under oath.
Klain also questions the kid-glove treatment of Donald Trump Jr., echoing Rick Hasen, who wrote this:
Robert Mueller let Donald Trump Jr. off the hook too easily for potential campaign finance violations that arose from the June 2016 meeting in Trump Tower with Russian operatives....
Mueller describes the law defining coordination as too uncertain. In fact, as Common Cause’s Paul S. Ryan explains in this thread, there is both a federal statute and case law defining the term, and Trump Jr.’s conduct seems to fall within it.
Mueller also made the ridiculous argument that it is possible Russian “dirt” on [Hillary] Clinton could have been worth less than $25,000, the threshold to punish Trump Jr.’s cooperation as a felony. Really?
Further, Mueller said that a Trump Jr. prosecution would have raised “First Amendment questions” ...
... Trump Jr. was a major campaign official meeting with representatives from a foreign government that were offering “dirt” on the campaign’s opponent. As I wrote, “To let someone off the hook who solicited ‘very high level and sensitive information’ from a hostile government because there may be cases in which information from a foreign source does not raise the same danger to our national security and right of self-government is to turn the First Amendment into a tool to kill American democracy.”
... Mueller’s decision not to also bring charges against Trump Jr. — a private citizen, not protected by any Justice Department policy against prosecution — for conspiring with WikiLeaks (either as a violation of campaign finance laws or other statutes) remains a mystery given the extensive evidence of direct interactions between Trump Jr. and the WikiLeaks team. It is this Mueller decision — which enabled Trump’s “no collusion” boast — that merits the greatest scrutiny in the days ahead.
And Elie Mystal thinks the whole damn Trump family got off easy:
Yes, Mueller did try to secure testimony from Paul Manafort and Corey Lewandowski and Steve Bannon and Hope Hicks and any number of hangers-on and sycophants that Trump surrounded himself with. But, the people in charge of Trump’s operations have always been Trump, his adult children, and his son-in-law.
Mueller didn’t say “boo” to those people. And that means his investigation is, at best, incomplete, if not an actual failure.
... Mueller didn’t interview them, didn’t subpoena them, and didn’t look like he even tried.
I’m amenable to the argument that Don Jr. is too stupid to have the necessary mens rea to commit crimes. I really am. Don Jr. is dumb. I believe that. But I don’t see how you can make that legal conclusion without putting Donald Trump Jr. under oath. I don’t see how you can make that legal conclusion without investigating him. I don’t see how you can make the legal conclusion without interviewing Jared Kushner, who was roped into the meeting at the behest of Don Jr. Maybe Don Jr. fights the subpoena all the way to the Supreme Court. Maybe he takes the Fifth Amendment and refuses to testify. Maybe he decides to testify and lies, like EVERYBODY ELSE who has been charged in connection with the Mueller probe, and you get at the truth that way. But this argument of “oh, it’s super hard to prove, so screw it” is just UNACCEPTABLE.
Why didn't Mueller subpoena Junior? Hasen states the obvious:
The special counsel should have called Trump Jr. before the grand jury, as he did with other witnesses. It seems likely that he declined to do so as not to incur the wrath of the president.
That seems to be the reason the whole family was treated so delicately. Trumpian intimidation worked.
Crossposted at No More Mr. Nice Blog