Trying to apply the lessons of an old scandal to a new one, Carl Bernstein on CNN recently stated
The system worked in Watergate. But it worked ultimately because there was a ‘smoking gun tape’. It’s very questionable whether the system would have worked without that gun.
There is by Robert Mueller's standards no smoking gun in Russiagate, no evidence of a certified, signed contract signed by "Donald J. Trump, President, USA" and "Vladimir V. Putin, President, Russia Federation."
One never finds what one is determined to avoid finding. The Special Counsel wrote (in Volume II, page 13)
We also sought a voluntary interview with the President. After more than a year of discussion, the President declined to be interviewed.
(REDACTED. grand jury).
During the course of our discussion, the President did agree to answer written questions on certain Russia related topics, and he provided us with answers. He did not similarly agree to provide written answers to questions on obstruction topics or questions on events during the transition. Ultimately, while we believed that we had the authority and legal justification to issue a grand jury subpoena to obtain the President's testimony, we chose not to do so. We made that decision in view of the substantial delay that such an investigative step would likely produce at a later stage in our investigation.
So Mueller argues that issuing a grand jury subpoena to obtain the President's testimony would probably produce a "substantial delay." Yet, he "spent more than a year" pursuing the voluntary interview he had little reason to believe he'd get, after which he became concerned about a delay in the investigation.
If the Special Counsel's office truly were interested in having the President testify in person, it cold have promptly initiated the process by obtaining a grand jury subpoena. Lawfare's Elie Mystal argues
The thought that Trump would fight too hard against a subpoena, or it would take too long for the legal process to play out, is not a sufficient reason to not attempt to secure testimony under oath. Again, who ELSE is supposed to secure Trump’s testimony? Congress? Then it becomes a partisan battle and not a legal one.
I can’t be sure, but I bet you 10 bucks that the redacted part of that passage is the grand jury asking for Trump to be brought before them to testify. I bet you that the grand jury asked Mueller to bring Trump before them, and Mueller declined to listen to them and issue the subpoena. Why? Why would he do that? I can only guess, but it sure looks like Mueller determined it would make him and his office look bad. If he had made the decision based solely on the “right thing to do,” the right thing to do would have been to gather as much testimony as possible from the person suspected of obstructing justice.
Nor can I be sure, but I'll bet you much more than 10 bucks that Trump's legal team refused to respond to questions about obstruction because "I don't recall" is not credible when the actions took place relatively recently and in full view, sometimes on video. By contrast, convenient forgetfulness about collusion/conspiracy is fairly credible because it occurred further in the past and is by intent somewhat obscured.
We also assessed that based on the specific body of evidence we already had obtained of the President's actions and his public and private statements describing or explaining those actions, we had sufficient evidence to understand relevant events and make certain assessments without the President's testimony.
Well, now, that's a little odd, given that the President's
answers were unsatisfying to Mueller, according to the public version of the special counsel report released Thursday. The report took the step of introducing Trump's answers by saying after the investigators received them, they informed Trump's lawyers of their "insufficiency," noting in particular that Trump "stated on more than 30 occasions that he 'does not recall' or 'remember' or have an 'independent recollection' of information called for by the questions."
Subpoenaing the President would have been useful. It is conceivable that the President's legal team, concerned about the fallout of refusing to testify, would have complied. More likely, the lawyers would have refused a subpoena and forced a court challenge, in which case Trump's refusal to cooperate would have made obstruction of justice even clearer. Instead, Trump surrogates can argue, albeit against almost all evidence, that he complied with the investigation.
Robert Mueller did not pursue a subpoena for the same reason that he did not interview Jared Kushner or Donald Trump Jr., or Donald Trump in a meaningful way. Thankfully, he notified us when he wrote "We determined not to apply an approach that could potentially result in a judgment that the President committed crimes." Mueller did not want to find out that the President committed a crime, and set out to conduct an investigation to avoid the obvious conclusion.