All winter, Mueller and his team had been paying close attention to Barr’s words and realized during his confirmation hearings that the ground had shifted. The team had to write a report summarizing their findings; they had always known that was one of their duties under the special counsel regulations. But now they had to write it with an eye toward much or all of their report becoming public. And the team did not agree on how forcefully they should describe the president’s efforts to block a criminal investigation.
A few members of Mueller’s team wanted to be explicit in the report about the incriminating information they had found about Trump and explain that if he had not been a sitting president, he could likely have faced charges. They understood the Office of Legal Counsel opinion prohibited prosecuting Trump, but they pointed out it did not state that they could not recommend charges.
“There were people in the group who were pushing for a clearer expression of the president’s misconduct and why they were not charging it,” said one person who talked with members of the team. They believed they “definitely had enough to indict any other human being.”
Mueller argued a pure, apolitical view about the impropriety of concluding Trump had engaged in a crime, considering the OLC opinion. Amid an extensive back-and-forth over how they should summarize Trump’s actions—and all the indications he had sought to interfere in the probe—Mueller and his team agreed to language stating that Trump could not be exonerated: “If we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state.”
But some on the team felt that phrasing was still unsatisfyingly passive. It was “as far as the special counsel was willing to go,” this person said, but added, “I don’t think that that was the consensus view. I think the boss made a call.”
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On March 5, Barr got some answers. Mueller and his top deputies, James Quarles and Aaron Zebley, arrived at the Justice Department for a secret meeting. To ensure they would not be spotted, Mueller’s security detail snuck them in through the basement and whisked them up a back elevator and into the attorney general’s conference room. The trio met Barr for the first time since he had become attorney general, and they were joined by Rosenstein, O’Callaghan, and Barr’s chief of staff, Brian Rabbitt. The atmosphere was friendly and jovial. Everyone exchanged pleasantries, and then they got down to business.
Mueller kicked off the meeting by pulling out a piece of paper with some notes. The attorney general and his aides believed they noticed something worrisome. Mueller’s hands shook as he held the paper. His voice was shaky, too. This was not the Bob Mueller everyone knew. As he made some perfunctory introductory remarks, Barr, Rosenstein, O’Callaghan, and Rabbitt couldn’t help but worry about Mueller’s health. They were taken aback. As Barr would later ask his colleagues, “Did he seem off to you?” Later, close friends would say they noticed Mueller had changed dramatically, but a member of Mueller’s team would insist he had no medical problems.
Mueller quickly turned the meeting over to his deputies, a notable handoff. Zebley went first, summing up the Russian interference portion of the investigation. He explained that the team had already shared most of its findings in two major indictments in February and July 2018. Though they had virtually no chance of bringing the accused to trial in the United States, Mueller’s team had indicted thirteen Russian nationals who led a troll farm to flood U.S. social media with phony stories to sow division and help Trump. They also indicted twelve Russian military intelligence officers who hacked internal Democratic Party emails and leaked them to hurt Hillary Clinton’s campaign. The Trump campaign had no known role in either operation.
Zebley explained they had found insufficient evidence to suggest a conspiracy, “no campaign finance [violations], no issues found. . . . We have questions about [Paul] Manafort, but we’re very comfortable saying there was no collusion, no conspiracy.”
Then Quarles talked about the obstruction of justice portion. “We’re going to follow the OLC opinion and conclude it wasn’t appropriate for us to make a final determination as to whether or not there was a crime,” he said. “We’re going to report the facts, the analysis, and leave it there. We are not going to say we would indict but for the OLC opinion.”
Quarles said they would lay out the evidence “dispassionately” in volume 2 of their report so as not to leave an impression with readers about any determination of Trump’s criminality. “We don’t reach a final judgment that any specific conduct equals a crime,” he said. “We do not reach the crime or no crime conclusion.”
Barr and his team were surprised and entirely confused. Seeking clarity, the attorney general tried to sum up the point Quarles was making: “It’s not the case that you could say Bob Mueller would’ve indicted the president of the United States but for the OLC opinion.”
Correct, Quarles agreed.
According to the Justice Department’s OLC opinion, federal prosecutors, including the special counsel, could not indict a sitting president, but they could investigate him. Nothing in the OLC opinion said prosecutors could not decide whether or not a president committed crimes. In fact, the special counsel statute explicitly stated Mueller had one central job: to investigate and then report to the attorney general on his decision to prosecute or not to prosecute.
Yet Quarles was saying they would not go down that road of deciding one way or another. Barr thought, why not? You’re the special counsel. Your job was to investigate and make charging decisions.
Mueller spoke up to reiterate the position Quarles presented. “We determined we should not try to decide if the conduct constitutes a crime due to the reasoning of the OLC memo,” he said. “It would be possible for somebody else later on to decide.”
Barr wanted to be sure. He asked specifically whether someone could review the report and make an independent decision about criminality. The special counsel’s team told him yes. Later, another Barr aide asked whether the attorney general could decide whether there was enough evidence to constitute a crime. Again, the Mueller team said they assumed the attorney general had that power. Of course, Barr was in charge of the probe and could have said to Mueller, “I want you to make a recommendation,” but he didn’t. Mueller’s team thought they were discussing legal authority in the abstract. They gave the answers never contemplating Barr might actually exercise that power within days.
The meeting then turned to the logistics and technicalities of the report itself. Mueller said the report would be lengthy and written in two volumes: the first, covering Russian interference, would clock in at about 140 pages, while the second, on obstruction, would be about 120 pages. Mueller and his deputies explained that the report would contain an executive summary. “We tried to take the facts as we saw them,” Mueller said.