The
Inside Story of Why Mueller Failed
In a new
book, Andrew Weissmann, one of Special Counsel Robert Mueller’s top deputies,
lays out the limits and letdowns of the years-long Russia investigation.
Andrew Weissmann was one of Robert
Mueller’s top deputies in the special counsel’s investigation of the 2016
election, and he’s about to publish the first insider account, called Where
Law Ends: Inside the Mueller Investigation. The title comes from an adapted
quote by the philosopher John Locke that’s inscribed on the façade of the
Justice Department building in Washington, D.C.: “Wherever law ends, tyranny
begins.”
Weissmann offers a damning
indictment of a “lawless” president and his knowing accomplices—Attorney
General William Barr (portrayed as a cynical liar), congressional Republicans,
criminal flunkies, Fox News. Donald Trump, he writes, is “like an animal,
clawing at the world with no concept of right and wrong.” But in telling the
story of the investigation and its fallout, Weissmann reserves his most painful
words for the Special Counsel’s Office itself. Where Law Ends portrays
a group of talented, dedicated professionals beset with internal divisions and
led by a man whose code of integrity allowed their target to defy them and
escape accountability.
“There’s no question I was
frustrated at the time,” Weissmann told me in a recent interview. “There was
more that could be done that we didn’t do.” He pointed out that the special
counsel’s report never arrived at the clear legal conclusions expected from an
internal Justice Department document. At the same time, it lacked the
explanatory power of last month’s bipartisan Senate Intelligence Committee
report on the 2016 election. “Even with 1,000 pages, it was better,” Weissmann
said of the Senate report. “It made judgments and calls, instead of saying,
‘You could say this and you could say that.’”
The Mueller inquiry was the greatest
potential check on Trump’s abuse of power. The press gives the president fits,
but almost half the country chooses not to believe the news. Congress will
protect Trump as long as his party controls at least one chamber. Local
prosecutors and civil plaintiffs are severely limited in pursuing justice
against a sitting president. Public opinion is immovably split and powerless
until the next election. Only the Special Counsel’s Office—burrowing into the
criminal matter of Russian interference in the 2016 election, a possible
conspiracy with the Trump campaign, and the president’s subsequent attempts to
block an investigation—offered the prospect of accountability for Trump.
Mueller couldn’t try the president in court, let alone send him to prison, but
he could fully expose Trump’s wrongdoing for a future prosecutor, using the
enforceable power of a grand jury subpoena. The whole constitutional
superstructure of checks and balances rested on Mueller and his team. As their
work dragged on through 2017 and 2018, with flurries of indictments and plea
deals but otherwise in utter silence, many Americans invested the inquiry with
the outsized expectation that it would somehow bring Trump down.
Suddenly, in March 2019, the Special
Counsel’s Office completed its work. A report, hundreds of pages long, with
many lines blacked out, was delivered to the attorney general. Before releasing
it to the public, Barr pronounced the president innocent, in a brazen mix of
elisions, distortions, and outright lies—for the report presented extensive
evidence of cooperation between the Trump campaign and Russian assets, and of
the president’s efforts to obstruct justice. The lesson Trump took from the
Mueller investigation was that he could do anything he wanted. He declared
himself vindicated, vowed to pursue the pursuers, and immediately turned to
extorting favors for another election from another foreign country. Uproar over
“Russiagate” gave way to uproar over “Ukrainegate.” The Mueller report faded
away, as if it had all been for nothing.
“Had we given it our all—had we used
all available tools to uncover the truth, undeterred by the onslaught of the
president’s unique powers to undermine our efforts?” Weissmann writes in the
introduction. “I know the hard answer to that simple question: We could have
done more.” Elsewhere, he admits that, “like Congress, we were guilty of not
pressing as hard as we could” for evidence. He calls a crucial passage of the
Mueller report “mealymouthed”—an easy mark for Barr’s treachery. “Part of the
reason the president and his enablers were able to spin the report was that we
had left the playing field open for them to do so.”
Weissmann, who now teaches at NYU, is a former federal
prosecutor from New York, with an aggressive reputation and a precise manner.
He won cases against Mafia bosses and Enron executives, served as Mueller’s
general counsel at the FBI, and became the head of the Justice Department’s
criminal-fraud section under President Obama. When Mueller was appointed
special counsel in May 2017, he chose Weissmann to lead “Team M”—the group
responsible for the case against Paul Manafort, Trump’s corrupt former campaign
chairman. Theirs was the most straightforward part of the investigation; they
produced an early indictment and, ultimately, a conviction of Manafort on tax
fraud and other charges.
Team M also came close to
establishing a conspiracy between the Trump campaign and the Russian
government. On August 2, 2016, Manafort dined in New York City with Konstantin
Kilimnik, a Ukrainian-born business associate with ties to Russian intelligence
and oligarchs. Manafort, a lavishly compensated hired gun for some of the
oligarchs, had been sharing campaign strategy with Kilimnik, including
sensitive polling data. Over dinner, Manafort described Trump’s strategy in
four battleground states; Kilimnik in turn presented for Trump’s approval a
Russian “peace plan” that would amount to the annexation of eastern Ukraine.
Last month’s Senate report, going further than Team M, named Kilimnik as an
actual Russian intelligence officer and revealed his likely connection to the
2016 election-interference operations. “This is what collusion looks like,” the
committee’s Democratic members wrote in an appendix.
In the absence of a discoverable
deal between the Trump campaign and Russian assets, the number and flagrancy of
contacts and the readiness of Trump and his advisers to lie about them have
been too easily minimized. As Weissmann observes in Where Law Ends:
“The hope of uncovering something even greater distorted the perception of what
was actually brought to light.” Weissmann and his colleagues were thwarted by
chance—Manafort’s No. 2, Rick Gates, arrived late for the dinner with Kilimnik
and was subsequently unable to tell investigators all that was discussed. They
were hamstrung by Mueller’s decision not to look into Trump’s financial
dealings with Russia, which might have established a source of Russian leverage
over Trump, but which the president had declared a red line not to be crossed.
And they were frustrated by perjury—for Manafort never stopped lying to Team M.
His lies were encouraged by the president, who made sympathetic noises about
Manafort with the suggestion that stonewalling might earn him a pardon. Trump’s
pardon power was an obstacle that the prosecutors didn’t anticipate and could
never overcome. It kept them from being able to push uncooperative targets as
hard as in an ordinary criminal case.
The Special Counsel’s Office also worked under the constant
threat that Trump would fire Mueller, as Richard Nixon had fired Archibald Cox,
the first Watergate special prosecutor, in the Saturday Night Massacre. Trump
tried several times to get rid of Mueller, but he was stopped by his
underlings, who knew that it would lead to legal and political disaster. Still,
the threat never went away, and in the end, it served the president’s interests
well: “The specter of our being shut down exerted a kind of destabilizing pull
on our decision-making process.” Where Law Ends describes
numerous instances, large and small, when Mueller declined to pursue an
aggressive course for fear of the reaction at the White House. For example, the
special counsel shied away from subpoenaing Don Trump Jr. to testify about his
notorious June 2016 meeting in Trump Tower with a Russian lawyer offering dirt
on Hillary Clinton. Ivanka Trump, who didn’t attend the meeting but talked with
participants afterward in the lobby, and later discussed with her father how to
conceal details from the press, was never even asked to speak with Mueller’s
investigators: They “feared that hauling her in for an interview would play
badly to the already antagonistic right-wing press—Look how they’re roughing
up the president’s daughter—and risk enraging Trump, provoking him to shut
down the Special Counsel’s Office once and for all.”
Weissmann blames this persistent
timidity on one of Mueller’s other top deputies, a lawyer named Aaron Zebley,
comparing Zebley to George B. McClellan (and more zealous team members, including
himself, to Ulysses S. Grant). “Repeatedly during our twenty-two months in
operation,” Weissmann writes, “we would reach some critical juncture in our
investigation only to have Aaron say that we could not take a particular action
because it risked aggravating the president beyond some undefined breaking
point.”
Weissmann described to me this
failure of nerve on Zebley’s part, an aversion to confronting the ugliness
coming from Trump. I pointed out that all of these were ultimately Mueller’s
decisions. Weissmann agreed.
His portrait of Mueller is admiring
and affectionate. The former FBI director is laconic, loyal, demanding, and,
very occasionally, drily charming. Weissmann goes to great lengths to
understand Mueller’s thinking on two of his central decisions: not to subpoena
Trump, and not to state plainly in the report what the evidence of volume two
makes clear—that Trump obstructed justice. Neither decision holds up to
Weissmann’s scrutiny.
On the subpoena, Weissmann told me
that the reason given in the report—that the legal battle would have unduly
delayed the inquiry—was less than candid, since a subpoena issued at the start
of the investigation could have been resolved by the Supreme Court months
before the date of the report’s completion. In Where Law Ends,
Weissmann reveals that the real reason for not compelling the president to be
interviewed was Mueller’s aversion to having an explosive confrontation with
the White House. On the obstruction of justice, Mueller declined to make a
determination because of a long-standing Justice Department policy that a
sitting president cannot be indicted. Mueller, judging that Trump wouldn’t have
his day in court until he became a private citizen again, refrained from
stating that Trump had broken the law (even though volume one of the report
explicitly cleared the president of the conspiracy charge).
Weissmann politely demolishes this
effort at extreme fairness. “I was flummoxed by Mueller’s thinking,” he admits.
The special counsel was required to make a legal recommendation on the facts
and present it in an internal department document to the attorney general. Barr
could decide to keep the report private. Or, if it became public, Trump could
use his unparalleled platform to defend himself to the country. Or he could choose to
be charged and tried in order to clear his name. Mueller, completely out of
character, was “making his own, freelance judgments about what was appropriate
and not delivering on what he was tasked with doing.”
Weissmann made these arguments to the lawyer whom Mueller
had assigned to draft this tricky passage of the report. “I also think it seems
like a transparent shell game,” Weissmann told his colleague. “When there is
insufficient proof of a crime, in volume one, we say it. But when there is
sufficient proof, with obstruction, we don’t say it. Who is going to be fooled
by that? It’s so obvious.”
By abdicating the role
of prosecutor, Mueller cleared the way for Barr to take it on himself. Mueller
and Barr were old friends. Several weeks before submitting the report,
Weissmann writes, Mueller informed Barr of his intent to omit any legal
recommendation. Barr didn’t object. Without telling Mueller, he saw a chance to
disfigure the report into an exoneration of the president and thereby make its
damning truths disappear. “Barr,” Weissmann writes, “had betrayed both friend
and country.”
And Mueller? He was
incapable of navigating the world remade by Trump. He conducted himself with
scrupulous integrity and allowed his team to be intimidated by people who had
no scruples at all. His deep aversion to publicity silenced him when the public
badly needed clarity about the special counsel’s dense, ambiguous, at times
unreadable report. His sense of fairness surrendered the facts of presidential
criminality to an administration that was at war with facts. He trusted his
friend Barr to play it straight, not realizing that Barr had gone crooked. He
left the job of holding the president accountable to a Congress that had shown
itself to be Trump’s willing accomplice. He wanted, above all, to warn the
American people about foreign subversion of our democracy, while the greater
subversion gathered force here at home.
In our interview, I
asked Weissmann if Mueller had let the American people down. “Absolutely, yep,”
Weissmann said, before quickly adding: “I wouldn’t phrase it as just Mueller. I
would say ‘the office.’ There are a lot of things we did well, and a lot of
things we could have done better, to be diplomatic about it.”
And the investigation—was
it a historic missed opportunity?
Weissmann’s reply was
terse. “That’s fair.”
With the end of the
Special Counsel’s Office, the one real check on Trump’s unfettered power was
gone, until the next election. Now it’s upon us, and the president remains free
to repeat what worked for him in the last one.