Don’t Get Lured by False Question of Whether Mueller Got “Played” by Barr

It’s Not How Mueller Saw His Job, and It’s Not How We Should Either

There’s a new question beginning to surface from some Mueller investigation-watchers: “Did Robert Mueller get played by William Barr?”  The instinct to ask it is understandable, given the manipulation of the Special Counsel’s final report since he delivered it to the Attorney General.   But it’s the wrong question to ask.  Maneuvering “around” the Attorney General was not how Mueller saw his job—indeed, it was not his job—and it’s not how we should see it, either.  The work of a special counsel is, by design, protected in certain key ways; but the role isn’t designed to be adversarial to its own boss, which would be contrary to our constitutional structure anyway. Mueller discharged his duties and did so honorably. Asking whether he was “played” by the man to whom he reported distracts public analysis away from the true subject of concern regarding how the release of Mueller’s report was handled: Barr and his distortion of Mueller’s work. It also distracts from what, in the end, should be our real focus: Mueller’s findings themselves.

Let’s start with what Mueller did appear to view as an aspect of his job, long before he provided the Attorney General with a final report.  One aspect was clearly a public education function.  Mueller told, in a series of dramatic indictments, an epic tale of how Russia sought to disrupt and degrade American democracy through interference in the 2016 election.  Mueller deliberately chose to craft “speaking indictments,” which did far more than just identify the criminal charges being brought: instead, those indictments told a story of escalating richness.  Mueller showed how a Russian company linked to the Kremlin spread disinformation among Americans.  Then, Mueller revealed how the Russian Government itself engaged in intelligence collection—including on U.S. soil—years before the 2016 election to understand the fault lines and potential for greater politicization of the American public and thus inform Russia’s disinformation campaign.  What’s more, Mueller explained how American power brokers like Paul Manafort worked to turn foreign countries’ desire for influence on American politics into dirty money and unacknowledged lobbying efforts.  This body of work dramatically enhanced the American people’s understanding of the Russian disinformation campaign in 2016 and, more broadly, the wrangling for influence in Washington that’s carried out by foreign governments.

But educating the public was ultimately a byproduct of Mueller’s fulfillment of a special counsel’s primary function: enforcing the law by punishing violations of it.  Before Mueller’s report ever consumed Americans’ attention, the Special Counsel and his team had obtained eight convictions, brought even more outstanding charges, recovered almost $30 million dollars for the American people (more than his office’s operation cost!), and referred what could prove critical continuing investigations to U.S. Attorney’s Offices around the country, many of which remain ongoing.  That’s an astonishing set of contributions, especially given the difficulty of investigating an unprecedented election interference campaign by a foreign government, the novelty of some of the charges, and the relatively small team at Mueller’s direct disposal.  It’s a lot of justice getting served.

As we teach our children, what matters is how you play the game.  And perhaps that’s the most relevant aspect of Mueller’s work for understanding why it’s mistaken to ask whether Mueller got “played” by Barr.  There’s never been a more politically sensitive investigation than this one, involving links between a hostile foreign government and the campaign of the sitting President.  And there’s certainly never been a Justice Department prosecution team that’s endured such direct and shameful assaults from that President himself, with utterly unsupported accusations of conflicts of interest, political biases, and personal slights.  It’s this sustained onslaught against Mueller by the man to whom he ultimately reported—the President—that makes it tempting to see Mueller as adversarial to those in his chain of command.  But Mueller certainly didn’t respond in kind: there were no leaks from Mueller’s office during the investigation, no retaliation against the President’s barrage, no sniping or grumbling of any sort—just the professionalism of prosecutors doing their job.  And the quiet quality of the office’s work product has been a constant, from the rich factual detail of the speaking indictments to the successful presentation to judges and juries of the office’s legal theories to the vindication by multiple judges that Mueller stayed within his mandate.

That professionalism and sense of his role also guided Mueller’s approach to the man who became his direct boss when confirmed as Attorney General: William Barr.  To be clear, the special counsel regulations that governed Mueller’s work protect a special counsel in important ways, including—critically—by requiring notification to Congress, at the conclusion of a special counsel’s work, of any instances in which a supervising attorney general rejects an action proposed by a special counsel.  But, in the end, a special counsel is a prosecutor reporting to and working for the attorney general.  He must be in order to comply with our constitutional design, as I’ve discussed elsewhere.  So it’s a mistake to ask whether Mueller got “played” by Barr, because it implies a mistaken view of how Mueller saw his own job—in essence, to “play” his own boss rather than get “played” by him.  And Mueller was right.

Mueller was equally right to inform Barr that he thought the Attorney General was distorting Mueller’s final report, as we now know Mueller did via two letters to Barr.  But sending those letters wasn’t a sign of Mueller having been “played.”  Mueller had done his job, and now it was up to his boss to do his.  As Neal Katyal and I have explained elsewhere, Barr hasn’t done that: to the contrary, Barr strayed from the spirit of the special counsel regulations in distorting and rebutting Mueller’s findings and straining to exonerate, on his own, President Trump.  Asking whether Mueller got “played” by Barr mistakes Mueller’s responsibilities for Barr’s: it wasn’t Mueller’s job to maneuver around his boss.  It was Barr’s to simply do his job.  Let’s keep the focus in analyzing how Mueller’s report was handled on what exactly Barr then did and is continuing to do.  And, ultimately, let’s not lose sight of the real focus here: what Mueller found, and what it says about the behavior of our President and the nature of threats to our democracy. 

About the Author(s)

Joshua Geltzer

Founding Executive Director of the Institute for Constitutional Advocacy and Protection and Visiting Professor of Law at Georgetown University Law Center. Former Senior Director for Counterterrorism at the National Security Council, former Deputy Legal Advisor to the National Security Council, and former Counsel to the Assistant Attorney General for National Security at the Department of Justice. Member of the editorial board of Just Security. Member of the editorial board of Just Security. You can follow him on Twitter (@jgeltzer).