From the Right



The wayward special counsel's performance won't age well

By Rich Lowry on

In the end, by-the-book Robert Mueller departed wildly from the book.

He invented an extraconstitutional legal standard for his obstruction investigation and acted, at best, in violation of the spirit of the special-counsel regulations.

His departing act was a public statement meant to influence the public debate in a manner inappropriate for a prosecutor, in part because the long public report he wrote that was also inappropriate for a prosecutor lacked clarity.

A hallmark of the Trump era is that the norm-defying president goads everyone appalled by him to violate norms. The former Marine and G-man Robert Mueller would seem least likely to fall prey to this dynamic, but here we are.

First and foremost, Mueller ditched the presumption of innocence. In the normal course of things, all of us are considered innocent unless a jury finds us guilty beyond a reasonable doubt. Mueller switched this around. Rather than finding conclusive evidence of Trump's guilt, he had to find conclusive evidence of his innocence. Since he didn't find this exculpatory evidence, Mueller deemed Trump "not exonerated."

In surely one of the more gobsmacking utterances ever made by someone from a Justice Department podium, he said that "if we had confidence that the president clearly did not commit a crime, we would have said so."


If this standard had been applied to any person other than Donald Trump, it would have been widely denounced, and the American Civil Liberties Union would be crusading against it.

Naturally, Trump's critics immediately concluded from Mueller's statement that if Trump hadn't been found innocent, he must be guilty. The snarky headline on a New York magazine piece put it aptly enough: "Mueller: Trump is Not Not a Criminal."

Well, you might say, of course Robert Mueller departed from standard operating procedure -- he's a special counsel operating in novel circumstances that require novel approaches.

But this is not his writ. A special counsel, under the regulations, has the "investigative and prosecutorial functions of any United States Attorney." He is supposed to "comply with the rules, regulations, procedures, practices and policies of the Department of Justice."


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