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Legal Analyst Jeffrey Toobin Explains The 'Tragedy' Of The Mueller Investigation

Robert Mueller (left) "gave the president a free pass effectively on the fact that he repeatedly committed obstruction of justice," legal analyst Jeffrey Toobin says.
Saul Loeb, Brendan Smialowski
AFP via Getty Images
Robert Mueller (left) "gave the president a free pass effectively on the fact that he repeatedly committed obstruction of justice," legal analyst Jeffrey Toobin says.

Six months after the conclusion of President Trump's impeachment, CNN legal analyst andNew Yorker staff writer Jeffrey Toobin says special counsel Robert Mueller's investigation into Russian interference in the 2016 election was fundamentally flawed.

"The tragedy of the Mueller investigation is they did this brilliant investigation proving that Donald Trump repeatedly obstructed justice — far worse than Richard Nixon did in Watergate, far worse than Bill Clinton did in the Lewinsky matter," Toobin argues. "But then he doesn't finish the job and say what is obvious."

Toobin says that Mueller's decision to conclude his report without explicitly stating that the president had obstructed of justice left the door open for Trump to claim he had done nothing wrong — despite evidence to the contrary.

"When he told the FBI director not to investigate Michael Flynn, when he tried to get his White House counsel to fire Mueller, when he told his White House counsel to lie about whether he tried to get him to fire Mueller — all of that was egregious obstruction of justice," he says.

Toobin's new book, True Crimes and Misdemeanors, looks at how Trump survived the Mueller investigation and impeachment. He says the conclusion of Mueller's report was driven by the Justice Department policy of not indicting a sitting president.

"It's all laid out in the Mueller report," Toobin says. "But then ... Mueller pulled this punch ultimately. And it gave the president a free pass effectively on the fact that he repeatedly committed obstruction of justice."

Mueller's report said that while it did not find that Trump had committed a crime, "it also does not exonerate him." Attorney General William Barr concluded in March 2019 that Mueller's findings were "not sufficient to establish that the president committed an obstruction-of-justice offense." Barr said Justice Department leaders made that decision without regard to the considerations of indicting a sitting president.

Interview Highlights

On why it was important to interview Trump face-to-face — which Mueller didn't do

/ Penguin Random House
Penguin Random House

Trump was the protagonist of this entire affair. He's also a pathological liar, and he is someone whose perspective, if you want to call it that, was indispensable to resolving what really went on here, what Trump was thinking, what his intent was in a legal sense. So the failure to have his voice in the Mueller report and in Mueller's determinations about what to do with the information he gathered left, I thought, a massive hole in the investigation. ...

The written questions were basically a joke. They were essentially written by the lawyers, and lawyers, doing what lawyers do, answered the questions in such ways that they could not be proven false. So there were an abundance of "I don't knows" and "I don't remembers" and "I can't recalls." And the lawyers also had matched up the questions to the record of emails, of visits, so that Trump couldn't be contradicted with actual known facts.

So the written questions were practically useless. What would have been different in oral questions is that Trump would have done what he always does, which is lie extravagantly. Trump can't help himself. That's how he behaves. His narcissism and his incredible dishonesty when it comes to anything related to things of importance to him would have come through. And that's an indispensable part of this story, and we know that because so much of what he said publicly about the Russia matter and later the Ukraine matter was so obviously false.

On how Trump's team turned Mueller into a political opponent

In the original defense team, led from inside the White House by Ty Cobb, who was a White House lawyer, and John Dowd and Jay Sekulow, there was an attitude of cooperation with Mueller, and even more so, there was Trump's relative silence about Mueller. People forget that, that ... from May of 2017 to March of 2018, Trump didn't attack Mueller.

But [Rudy] Giuliani's insight was once he took over in the spring of 2018, was to turn Mueller into just another political opponent. And Trump joined in that effort. ... Trump and Giuliani went after Mueller as if he were another Democrat in Congress, and that energized Trump. It energized his base and it gave him the political confidence to know that this investigation was never going to end up with his departure from office. Because the only way presidents get forced out of office — and this is a lesson from Clinton's failed impeachment — is if it's a bipartisan enterprise. Nixon was forced out of office when the Republicans turned on him in 1974.

Trump knew once he had mobilized his base and the Republican Party against [Robert] Mueller in 2018 that he was always going to survive the investigation. And that's what [Rudy] Giuliani did above all, which was turn the Mueller investigation into a political matter instead of a legal matter.

Trump knew once he had mobilized his base and the Republican Party against Mueller in 2018 that he was always going to survive the investigation. And that's what Giuliani did above all, which was turn the Mueller investigation into a political matter instead of a legal matter.

On Mueller's efforts to stay apolitical

Mueller ... found it deeply distasteful that he became a political figure. He did not want to be the case against Trump from the Democratic perspective. He didn't like that there were Robert Mueller action figures. He didn't like that there were "Mueller Time" T-shirts and that he became, you know, the hope and dream of MSNBC. This was not how Mueller saw himself. I think there was this institutional resistance, which Mueller fostered, of becoming a political figure. And I think that contributed to his just-the-fact report, and his reluctance to draw conclusions. I think that was a flawed approach. But it comes out of Mueller's background as someone who was deeply suspicious of the political process.

On how Mueller didn't investigate Trump's financial dealings with Russia

Another thing Mueller did and refrained from doing was investigating Trump's background before the presidency and before his campaign. One of the things that has been a source of mystery and curiosity throughout ever since Trump declared his candidacy is why he has this incredible solicitude for Vladimir Putin, why he refuses to criticize Putin, why he's so solicitous of Russia. And many people have speculated that relates to some sort of financial dealings that Trump had and has with Russia. Mueller didn't go there. Mueller didn't feel like that was within his jurisdiction. He didn't get Trump's tax returns. He didn't explore Trump's relationship with Deutsche Bank, where he got his financing for his projects.

So I can't say that there is something there that some prosecutor might have found. But when it comes to the Russia relationship during the 2016 campaign, one thing I think we have to be fair about is to say that when Trump said no collusion, there was no collusion — I mean, there was no explicit quid pro quo between the Russian government and the Trump campaign when the candidate, Trump, provided something to the Russians and the Russians provided something to him. What's evident is that Trump probably would have done it if he'd had the opportunity, but he didn't. He was just a candidate. He had nothing to give Russia at that point. Russia had plenty to give him. They did the hacking of the emails. They did the social media campaign. There was the meetingin Trump Tower in June of 2016. But in none of those cases could Mueller prove, and I don't think there is anything to prove, that there was any sort of meeting of the minds between Trump himself and the Russians.

On the dedication of the book to "my fellow journalists"

This has been a very tough time for journalists. For the most part, it's a difficult time in a business sense. There are a lot of newspapers that have struggled and gone out of business, a lot of layoffs, and I don't have a particular answer for that. But this has also been a time when people have not just criticized the results of journalism, but the very essence and motivations and character of journalism. And yes, obviously, that starts with the president, but it's not only the president. And I just wanted to be able to add my voice to those who say journalism matters: Journalism is a force for good in the world. Journalism is a flawed institution but is one that is indispensable to a healthy democracy. And I'm proud to be a journalist. And the dedication was one way of trying to respond to a very difficult business and political climate in which journalists find themselves. ...

One thing I want to emphasize is in many respects, the Trump presidency has been a golden moment for journalism. I am so proud of my colleagues at CNN and how we have responded and not responded to what the president has done, and the journalism that has come out in The New York Times and The Washington Post has been so terrific during this period. But there is also a sense of peril, and sometimes physical peril. There is anger out there stoked by the president that has put a lot of us in physical jeopardy. And a lot of us have had very ugly experiences relating to this period in journalism. To say that's disturbing is an understatement. And my dedication is just a way of offering a small measure of moral support to all of us who try to do this for a living.

Sam Briger and Joel Wolfram produced and edited this interview for broadcast. Bridget Bentz, Molly Seavy-Nesper and Dana Farrington adapted it for the Web.

Copyright 2021 Fresh Air. To see more, visit Fresh Air.

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