The Mueller Report: A Workplace Investigator’s Perspective, Part I

The Mueller Report: A Workplace Investigator’s Perspective, Part I

While we at the Wiley Law Office do our best to stay out of the political arena, when an investigation as important as the Mueller Report goes public, we feel it is important to reflect on both the investigative techniques as well as the format of the investigation report and how it was presented to the public.  No matter their political leanings, investigators must admire both the amount of work that went into the report, the presentation of the information to readers, and the overwhelming efforts taken by those involved to make the report as neutral and straight-forward as possible.  For an investigation that took almost two years, Mueller and his team did an excellent job of creating a comprehensive report. 

By this time, you probably have heard at least some of the results of the investigation; a number of indictments for obstruction of justice were handed down, and some of those charged have already been sentenced.  If you have not had a chance to read the report, a copy of it can be found on the Justice Department’s website.   

What we’d like to discuss first is the organization of the entire report.  The report, with appendices, totals 448 pages and includes two separate volumes – the first on Russian interference in the 2016 Presidential election and the second focused on possible obstruction of justice by the President.  Knowing that a number of those reading the report would not have the time or ability to digest the amount of information included in a 448-page report, the Special Counsel included with the two separate volumes both an introduction to each volume as well as an executive summary, which capture the most important aspects of both the basis of the investigation as well as the findings.  It’s important to keep your audience in mind, as well as their attention spans. 

The framework of the separate volumes is strikingly different.  As the investigation of the Russian interference in Volume I was a purely fact-based investigation rather than one requiring a legal analysis, Volume I does not dwell on legal minutiae before diving into the facts of the case.  Only after it reaches prosecution and declination decisions of the report does the Special Counsel delve into the law governing the situation. 

Volume II takes a different tack, for reasons clearly associated with the Justice Department’s position that a sitting President could not be indicted and still perform his assigned functions “in violation of the constitutional separation of powers.”  Because of this, the Special Counsel goes to great lengths to flesh out both its opinion of the law governing the indictment of a sitting President as well as its ability to investigate a President without actually concluding that a law has been violated.  This resulted in a virtual tight-rope walk performed by the Special Counsel when faced with what appears to be evidence suggestive that the President obstructed justice. 

Finally, without the ability to reach a conclusion of whether the President committed obstruction of justice, the Special Counsel lays out, in classic investigation report style, the law regarding obstruction of justice, the facts gathered in the obstruction of justice investigation, the defenses available to the President when faced with an obstruction of justice charge, and its conclusions regarding all aspects of the investigation.  While the Special Counsel was unable to indict on its own, it laid the groundwork for those with the ability to make an employment decision about the President if they choose to do so. 

The report also includes numerous appendices which serve as aides for readers, including the Special Counsel’s appointment letter from the acting Attorney General, a glossary of people and organizations referenced in the report, an analysis of the President’s written responses to questions from the Special Counsel, and a summary of matters transferred or referred by the Special Counsel’s office. 

While the report is extensive, the organization of the report could be used as a model for many workplace investigations.  You may not have the time or budget of the Special Counsel, but you can use its work to help you in the layout of your next investigation. 

This is just the first part of the Wiley Law Office’s breakdown of the Mueller report.  Stay tuned for additional analysis of other techniques used by the Special Counsel in the future.