why Mueller failed to hold Trump to account

The Mueller investigation ended a year and a half ago, but the aftershocks never stopped. A passel of books highlight the omissions and missteps of the special counsel’s office. The Senate intelligence committee report fills in some of the gaps on Russian interference in the 2016 election.

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Photograph: Amr Alfiky/Reuters

Related: Trump memo on Comey firing was ‘tinfoil helmet material’, Mueller prosecutor says

Although Robert Mueller found no basis for conspiracy charges, collusion remains a partisan buzzword, obstruction of justice a live concern. The harshest criticism leveled at Mueller is that he blinked.

Specifically, the special counsel failed to issue a grand jury subpoena to Donald Trump, needlessly ceding the advantage to the White House. Then, his report went silent on whether grounds existed for charging the president with obstruction of justice, despite analysis that revealed such grounds. The weight of the presidency and fear of its occupant triumphed.

© Photograph: Amr Alfiky/Reuters
The Department of Justice, in Washington DC.

“Had we used all available tools to uncover the truth, undeterred by the onslaught of the president’s unique powers to undermine our efforts?” asks Andrew Weissmann. “I know the hard answer to that simple question: we could have done more.”

That makes Where Law Ends unique among Trump-themed books. The author was a member of Mueller’s team, supervisor of the prosecution of Paul Manafort. He is both admiring and critical of his former boss, which lends credibility and originality. Pathos is part of the package too.

Weissman is a former federal prosecutor whose career intersected with Mueller’s, FBI general counsel when Mueller was director. Before the FBI, Weissmann had a reputation for zealousness. In the Enron case, he successfully prosecuted Arthur Andersen, only to see the supreme court overturn the conviction and to watch the accounting firm close.

As a younger government lawyer, Weissmann prosecuted Felix Sater. In 2015, according to the Mueller Report, Sater explored the “possibility of a Trump Tower project in Moscow while working with the Trump Organization”.

Under an apt subtitle, “Inside the Mueller Investigation”, Weissmann offers a detailed look at why the special counsel reached the conclusions he did, and expands on how Bill Barr ambushed Mueller with his four-page summary of a 400-plus-page report.

“We had just been played by the attorney general,” Weissmann writes.

Weissman expresses anger toward Barr but points the finger at Mueller: “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.”

He is convinced of the substantive basis of an obstruction claim, even if justice department guidelines precluded the indictment of a sitting president. The “facts of the [James] Comey firing appeared to satisfy all the elements of … obstruction of justice”, Weissmann writes. “There was simply no other credible conclusion one could reach.”

Where Law Ends also worries about the future of the US body politic.

“I now know that the death of our democracy is possible,” Weissmann writes. “Fixing it is possible too.”

That is the book’s last line. Weissmann’s rhetoric is hot – but not overblown.

Trump has publicly refused to commit to a peaceful transition of power. Take him literally and seriously, especially when polls show Biden up in Ohio, with Iowa and Georgia close.

“We’re going to have to see what happens, you know that” is one for the ages. Whether it is a historic blip or a harbinger remains to be determined.

Where Law Ends is also a guide to how the Mueller investigation divvied up its work. Sections on the case of Michael Cohen are particularly instructive. Trump’s fixer was charged by federal prosecutors in the Southern District of New York – a strategic decision.

Weissmann explains that the investigation of potential campaign finance violations fell outside Mueller’s purview. He could have sought permission to charge Cohen from Rod Rosenstein, then deputy attorney general. Or he could hand the case to SDNY, where in Weissmann’s words, “prosecutors have free rein to examine all potential federal crimes”.

Contrary to the hype surrounding the early days of the Mueller investigation, this was no “dream team”. In Weissmann’s telling, senior members did not possess supervisory experience, and in one instance a lawyer was hired simply because he had been a supreme court clerk. Those looking to work for Mueller were prone to both cockiness and hand-wringing, traits Mueller himself found distasteful.

At one point, Mueller turned to Jeannie Rhee, a veteran prosecutor, and said she embodied the “pizazz” he wanted, but which appeared lacking in the applicant pool. Rhee, Weissmann writes, possessed “a kind of can-do, combustible energy” which is always in high demand and short supply.

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Robert Mueller testifies before Congress in July 2019. Photograph: Saul Loeb/AFP/Getty Images

Weissmann upbraids Aaron Zebley, another Mueller deputy, for being overly cautious. Weissmann and Rhee concluded that the broad issue of Russian election interference was within their purview. For Zebley, the focus was limited to possible “links and coordination” between Russia and the Trump campaign.

Related: Disloyal review: Michael Cohen’s mob hit on Trump entertains – but will it shift votes?

Weissmann hearkens back to the generals who served Abraham Lincoln, comparing Zebley to the “timorous” George McClellan, reluctant to fight the Confederates, and presenting himself and Rhee as approximations of Philip Sheridan and Ulysses S Grant. Sheridan helped defeat Robert E Lee at Appomattox Courthouse. Grant, who accepted Lee’s surrender, would be elected president.

Perhaps Weissmann overstates. William Barnett, the FBI agent assigned to the case, contends that the lawyers, not his bureau’s investigators, drove most of the decisions. In a recent filing by the government in the Michael Flynn case, Barnett also says the special counsel’s office was both permeated by groupthink and out to “get” the president.

Either way, Where Law Ends is a dispiriting work. It is not simply about the Mueller investigation, or Trump. It is also an examination of where America stands.

Weissmann contrasts Trump’s inauguration with protest marches held the day after, and observes the country’s changing demographics. Mindful of history, he ponders whether the civil war ever ended. Looking at the coming election, that is an open question. America’s fissures are once again on display.