A former assistant to Robert Mueller said the special counsel did not charge President Donald Trump with obstruction of justice because of "defective" regulations surrounding his position.
In an interview with Newsweek, Michael Zeldin — the former special counsel for money laundering under Mueller when he was assistant attorney general of the Justice Department's criminal division — said his former boss needed more independence in his role.
"My thought is that the special counsel regulations are defective," Zeldin said, "because of the problem we see in this case, which is the special counsel is really not a truly independent counsel."
Though Mueller was not managed day-to-day by the DOJ, he was nevertheless "obliged to adhere to Department of Justice policy and perhaps preference—unless he objects to their decision, in which case there has to be a notification to Congress," the attorney said.
The report noted that when Zeldin and Mueller worked together at the DOJ in the early 1990's, they operated under a Watergate-era law governing independent counsels that Congress allowed to expire in 1999.
The newer special counsel law, according to the Congressional Research Service, allows for "less ‘independence’ from the attorney general and the Department of Justice than did the independent counsels."
"The problem we find ourselves in today in part is Mueller went along with the Department of Justice’s policy that he felt that he was really duty bound to," Zeldin said, adding that DOJ regulations on the release of documents "swung the pendulum too far in favor of secrecy."
"So now we have the situation where everyone is clamoring for an understanding of what underlies Mueller's belief that the evidence does not exonerate the president," the attorney said, "and we don't have an easy way to get it."
Because the full report has not yet been disclosed to the public — and may never be — Americans "don’t really know how big of a problem it is" that Mueller left the obstruction question blank.
Zeldin added that there was potentially a disagreement between the special counsel's office and Attorney General William Barr, which may have resulted in Mueller deferring to the DOJ's "traditional decision to not prosecute" and not pushing for a subpoena.
Barr, the former Mueller aide said, "just pulled out one sentence from the report and, like most things, things don’t make sense until you see the full context, so we’re also left groping in the dark."
"That’s the problem," Zeldin concluded.