Did Robert Mueller lie to Congress and mislead them about his intent in holding a May press conference? Under normal circumstances, the answer to this question would be no. Using the standards applied by the special counsel himself to several individuals charged with making false statements to investigators, however, Robert Mueller might have found himself in serious legal jeopardy.

Paul Sperry at Real Clear Investigations provides some significant background to a question Mueller answered two weeks ago in his congressional appearance:

On May 28, U.S. District Court Judge Dabney Friedrich called attorneys prosecuting the case into her courtroom for a closed hearing. Although no reporters were allowed inside, it is now known that Friedrich agreed with one defendant’s claims that Mueller had overstated the evidence when he implied in his report to Congress that the trolls were controlled by the Russian government and that the social media operations they conducted during the 2016 presidential campaign were directed by Moscow. News organizations had seized on the highly suggestive wording in his report to report they were part of a Kremlin-run operation. Concerned that Mueller’s words could prejudice a jury and jeopardize the defendants’ right to a fair trial, Friedrich ordered the special prosecutor to stop making such claims and “to minimize the prejudice moving forward” — or face sanction. “The government shall refrain from making or authorizing any public statement that links the alleged conspiracy in the indictment to the Russian government,” Friedrich stated in her ruling, which was private at the time. “Willful failure to do so in the future will result in the initiation of contempt proceedings.” The judge explained that Mueller’s report improperly referred to the defendants’ “social media operations” as one of “two principal interference operations in the 2016 U.S. presidential elections” carried out by the Russian government. She also pointed out that he also referred to their Internet trolling as “active measures” — a term of art that typically includes operations conducted by Russian intelligence to influence international affairs. She said this was a departure from the government’s original February 2018 indictment, which “does not link the defendants to the Russian government” and “alleges only private conduct by private actors.”

It was the very next day when Robert Mueller held his surprise press conference to announce the end of his tenure as special counsel. No one had expected any such public statement; most people thought the report itself would be the extent of Mueller’s public commentary. In fact, Mueller’s stated reluctance to appear before Congress seemed to be the only substantive point the special counsel made during his press conference that wasn’t already in the report.

That is, it was the only apparent substantive point. Mueller stepped back carefully from the report in one key passage, which went largely unnoticed at the time, emphases mine:

As alleged by the grand jury in an indictment, Russian intelligence officers who were part of the Russian military launched a concerted attack on our political system. The indictment alleges that they used sophisticated cyber techniques to hack into computers and networks used by the Clinton campaign. They stole private information and then released that information through fake online identities, and through the organization WikiLeaks. The releases were designed and timed to interfere with our election and to damage a presidential candidate. And at the same time, as the grand jury alleged in a separate indictment, a private Russian entity engaged in a social media operation where Russian citizens posed as Americans in order to influence an election.

That distinction between the sources of the two efforts was rarely if ever made publicly by either Mueller or those working off of the same material. The closest that the unredacted Mueller report comes to characterizing the Internet Research Agency (IRA) to Russian intelligence is to note that the IRA was funded by a Putin crony, Russian oligarch Yevgeniy Prigozhin. Yet Mueller’s team and Congress often conflated the two separate operations into one government-run mission, which might still be the case but not what the grand jury alleged.

In retrospect, now that we know about the judge’s order from the day before Mueller’s public statement, it appears that mitigating Mueller’s standing in court was his main objective for his statement. And it worked; Judge Friedrich ruled on July 1 that the presser put Mueller back in compliance:

“In delivering his remarks,” she said, “the special counsel carefully distinguished between the efforts by ‘Russian intelligence officers who were part of the Russian military’ and the efforts detailed ‘in a separate indictment’ by ‘a private [italics in original] Russian entity engaged in a social media operation where Russian citizens [italics in original] posed as Americans in order to interfere in the election.’”

This brings us to Mueller’s testimony before the House Judiciary Committee on July 24th, two weeks ago today. Republican Tom McClintock asked Mueller directly about this very point, to which Mueller eventually gave a denial (~ the 3-minute mark):

McCLINTOCK: In — in — in fact, the judge considering — considered holding prosecutors in criminal contempt. She backed off, only after your hastily called press conference the next day in which you retroactively made the distinction between the Russian government and the Russia troll farms. Did your press conference on May 29th have anything to do with the threat to hold your prosecutors in contempt the previous day for publicly misrepresenting the evidence? MUELLER: What was the question? McCLINTOCK: The — the question is, did your May 29th press conference have anything to do with the fact that the previous day the judge threatened to hold your prosecutors in contempt for misrepresenting evidence? MUELLER: No.

McClintock thinks Mueller flat-out lied, a conclusion that the now-unsealed ruling from Judge Friedrich more than suggests. McClintock told Sperry and RCI that “it certainly doesn’t pass the smell test”:

The congressman suspects that Mueller knowingly gave Congress a false statement under oath, and he wants to see the former special counsel’s sworn testimony referred to the Justice Department for investigation of possible perjury — a charge for which Mueller has sent Trump associates to prison. Most of them were prosecuted for lying to federal agents, but Mueller busted Trump lawyer Michael Cohen specifically for lying to Congress last November. “If he lied, he’s guilty of perjury and lying to Congress,” McClintock said, adding that “I think this would be of interest to the U.S. attorney investigating misconduct in this matter and the inspector general’s office.”

Under normal circumstances, a perjury prosecution requires two elements: materiality and intent. The state would have to prove that the question was material to the proceeding in such a way that it impaired it, and that there was a criminal mens rea to lie about it. This seems to fall short on both counts, especially to the extent that any evidence could conclusively show either. You’d have to prove that Mueller’s intent for the presser was beyond a reasonable doubt solely or primarily aimed at satisfying the judge and that the point was relevant to the committee review of Mueller’s investigation. It’s very possible to construct a theory of perjury or obstruction in this case, but prosecuting it successfully would likely be impossible.

Of course, some of the people caught up in the Mueller team’s process crimes had the same complaint about their supposed obstruction, too. Defenders of both George Papadopoulos and Michael Flynn have argued that Mueller’s team took the worst possible interpretations from their interviews and used them as a bludgeon to bully them into plea deals. Judge T.S. Ellis had similar issues with Mueller’s team in their prosecution of Paul Manafort, and at one time seemed prepared to throw out the case because of it.

At the very least, though, Mueller was less than fully honest and forthcoming with that answer. After all, someone made the argument to Judge Friedrich that Mueller’s public statement had been responsive to her order, and it seems very doubtful that it was the attorneys for the defendants in the case. If Mueller was judged by Mueller’s own standard, he might be facing a similar fate as those he prosecuted. He still might get some attention from Inspector General Michael Horowitz, who is conducting a review of all the DoJ actions in relation to Russiagate. The last word on this will almost certainly be Horowitz’, and it might not be kind at all.