Trump v Mueller: How the president won the messaging wars

In so many ways, Robert Mueller was the right man for the job.

The former special counsel was fast, precise, ran a tight ship and, working in a hyper-partisan environment under the full glare of history, Mueller managed to investigate and document a historic attack on the United States while retaining the public trust.

But one week after Mueller first spoke out about his investigation of Russian election tampering and the Donald Trump campaign, concern has sharpened that in one big way – potentially the biggest way – Mueller was exactly the wrong man for the job.

For when the pursuit of justice took Mueller into unprecedented terrain – as the special counsel’s investigation came under sustained public attack by the president and the attorney general, William Barr – Mueller failed, his critics say, both to stand up for his investigation and to get the word out to the American people about what he had found.

“To my mind, this is a Shakespearean-level tragedy,” said Patrick Cotter, a former federal prosecutor who was part of the team that convicted the Gambino family boss John Gotti. “It is the tragedy of the principled person, who is constrained by principle, being opposed by the completely unprincipled – Barr, and the president, and their lackeys.

“The principled are chained, and the unprincipled romp free. And in a debate over reality, the unprincipled will always win, because they will just lie, and they will make reality whatever they want it to be.”

Congressional Democrats convened hearings on the Mueller report on Monday, and the judiciary committee chairman, Jerry Nadler, has said he would call Mueller to testify about the 11 instances of potentially criminal obstruction of justice committed by Donald Trump and his campaign that the Mueller report documents.

But Mueller has refused, and has said he will continue to refuse, in discussions of his findings, to go beyond the language in his report, which declines to weigh evidence against the president while leaving open the possibility that crimes were committed.

“If we had had confidence that the president clearly did not commit a crime, we would have said so,” Mueller said at his news conference on 29 May, in a minor paraphrase of a memorably coy phrase from the document.

But against the full firepower of Trump’s Twitter account – “No collusion, no obstruction”, it chants – and Barr’s strategic misrepresentations, Mueller’s indirect language fails to communicate to the American people the basic facts of the president’s egregious misconduct, critics say.

“Mueller went out like a lamb in his remarks Wednesday, when the country needed a lion,” columnist David Ignatius wrote in the Washington Post. “He was so polite and deferential, so insistent on following Justice Department rules limiting his actions that, in practical terms, he ceded the ground to Trump and his apologists.”

There is no denial that Mueller, the starched former marine and FBI director, has been caught in a dilemma. To get out the truth about his report, he would need to go beyond its forensic discussion of the evidence, to characterize the thrust of that evidence. But to do that would, in Mueller’s view, be unfair to Trump, who as a sitting president cannot be indicted, according to justice department guidelines, and so cannot have his proverbial day in court to answer the charges against him.

It’s not Mueller’s job as he sees it to interpret his findings. It is his job to present them, not for the justice department to further pursue, but perhaps for Congress to take up.

“People on cable TV say Mueller needs to get out there and be an advocate,” said Harry Sandick, a former assistant US attorney in the southern district of New York. “But if he did that, he wouldn’t be Mueller. That’s not who this person is, and the very reason why he has such credibility is because he didn’t engage in that sort of ongoing commentary.”

But others argue that Mueller has a greater duty in this case than painstaking adherence to a playbook written for prosecutors applying the law in quotidian matters. As perhaps the only person with the authority to cut through Trump’s lies about the Mueller report and to point the way toward justice, Mueller, by this view, has a national duty to call out the president’s lies and to tell the country, using plain language, what he found.

“He saw the problem,” Cotter said, referring to the Trump administration campaign of lies about the report. “He recognized that he had to do something to try to fix it because it’s really important. But he failed. He failed because he simply couldn’t bring himself to go just a little bit into common language and just say the simple, plain truth.”

Preet Bharara, the former US attorney in the southern district of New York, thought that in his only public address in the two years of his investigation, Mueller seemed unusually drawn.

“It was the same Bob Mueller,” Bharara said on his podcast. “He seemed a little less strong in his manner than he usually does. He seemed a little bit more reluctant than I’ve seen him before, at other events.”

Mueller’s relatively mild presentation was a refreshing change from the typically overheated quality of the national discourse, said Sandick, who was one of more than 1,000 former federal prosecutors and justice department officials to co-sign a letter saying that the Mueller report documents conduct that would be chargeable as criminal were it committed by anyone but the president.

“Hasn’t our national debate been coarsened enough, and shouldn’t we appreciate the old-school attributes of somebody like Bob Mueller, who declined to engage in hand-to-hand combat with 140 characters?” asked Sandick.

“Prosecutors aren’t television hosts. They’re not entertainers, and they should do their talking in the courtroom and in their court filings. It’s not their job to wage the battle of public opinion. It’s their job to investigate and prosecute crimes.”

But in fulfilling a prescribed duty, Mueller failed a higher one, said Cotter.

“I think what America needed at this moment was a slightly less strictly principled person,” he said, “who was willing to actually take the heat for being arguably somewhat less than 100% principled in the legal construct, and just talk to people in plain, simple language.”