My friend Jack Corrigan, one of the smartest politicos/lawyers I know, saw it right away. He called it "the key punch-pulling passage in the report." It occurs on page two of volume two, where Robert Mueller says he and his team "determined not to apply an approach that could potentially result in a judgment that the President committed crimes."
They chose a standard that would not force them to conclude that the president committed crimes.
In all my years as a lawyer on the defense side, I have never heard a prosecutor tell me that he or she made the choice of what standard to apply so as to let my client off the hook. I have no doubt that everyone who has ever been indicted would like to be judged according to a standard specifically adopted so as not to result in the conclusion that they committed a crime.
Not for you and me. Just for him. Above the law, anyone?
This does not mean that the president was exonerated. He was not found innocent. And as for being above the law, the Mueller report made clear that the investigators recognized the obvious problem.
Their answer, very simply, was to put together the facts and leave it to Congress to decide whether they amounted a "high crime" or "misdemeanor."
"The conclusion that Congress may apply the obstruction laws to the President's corrupt exercise of the powers of office accords with our constitutional system of checks and balances in the principle that no person is above the law," the team wrote.
Meaning, "We aren't going to apply the law to him. You can."
A conclusion that the president committed nothing wrong — the exoneration the report specifically did not provide — would infuriate those who carefully studied the facts in the report and can find plenty of instances where the president attempted to obstruct justice only to be throttled by his own aides. On the other hand, saying the president had committed a crime would unleash a firestorm about indicting a sitting president.
But the compromise they chose fails on two grounds.
First, it leaves the conclusion as to what the president did or did not do, as well as whether it was wrong, squarely in the hands of the most partisan, divisive and downright nasty Congress of my lifetime. Republicans are not about to rise above partisan divides and stand up to the president if they don't absolutely have to. The reason you appoint a special counsel in the first place and choose a person of impeccable values is so that he or she will conduct a fair investigation and reach a conclusion that is based on those facts. Total objectivity may be impossible — we are humans, after all — but the very idea of the special counsel is rooted in the wisdom that you don't ask partisan appointees to investigate the man who appointed them. In this case, as another friend of Jack's pointed out, Mueller was handled the hot potato in the hopes that he would rise above politics, and instead he threw that hot potato right back into the political right.
Second, and most important, Mueller's report left him wide open to a brilliant political show by the William Barr/Trump team, which left the facts for last. By the time the facts finally came out, along with the acknowledgement that criminal law standards were not applied to the president, most of America had moved on, leaving it to Congress to complain to a nation that was ready to move on.
Which is how the president won.
No one wants to talk about the Mueller report except those who put their faith in the special counsel, only to watch him jump out of Trump's path and duck the very judgments he was appointed to make.
Trump was wrong about Mueller. He did not ruin his presidency. If Trump had not tried so hard to block him, there would be far less to discuss. Which leaves the biggest question: If Trump didn't conspire with the Russians, what was he so afraid of?
To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.