Everyone seems to want Special Counsel Robert Mueller to testify before Congress – Republicans and Democrats alike. Attorney General William Barr said he has no objection to Mueller testifying – and as his boss, Barr could block it.
This raises an interesting question. In a political environment where both sides constantly seek advantage, why are both sides eager to have Mueller exposed to public inquiry? One side is bound to be disappointed. But which side?
My guess, it will be the Democrats.
It is perfectly clear that congressional Democrats – such as Judiciary Committee Chairman Jerry Nadler and Intelligence Committee Chairman Adam Schiff – are eager to have Mueller reinforce their current narrative that President Trump is guilty of collusion and obstruction of justice despite the official findings in the Special Counsel’s Report and the determination of the Department of Justice leadership – including the Office of Legal Counsel, Deputy Attorney General Rod Rosenstein and Attorney General William Barr.
Democrats are basing their hope on the fact that under current Department of Justice (DOJ) rules a sitting President cannot be indicted. Were it not for this, they say, Mueller would have indicted Trump. That is a pretty weak argument since the Report states emphatically that no one – not Trump, his family, nor his campaign staff – criminally colluded with Russia in any way. None of the others are insulated by the rule.
Were there meetings with Russians? Yes. Was there one meeting set up in the hope of getting dirty – euphemistically called “opposition research” – on the Hillary Clinton campaign? Again, yes. Did Trump cavalierly express a hope that Russians would reveal the emails that Clinton deleted and destroyed – emails that media reports indicated the Russians may have obtained? Yes. Not only was none of this illegal, digging up dirt has been the standard operating procedure in campaigns since the founding of our Republic – even from foreign sources. Remember the Steele dossier provided by Russians and paid for by the Clinton campaign?
The accusations of criminal collusion by Trump stands apart from all the illegal mischief the Russians did to create social and political chaos by fraudulent use of social media. That is criminal – and a number of Russian individuals and organizations have been indicted by Mueller for those illegal actions. But the Trump campaign had nothing to do with that – and had less knowledge of Russian meddling than did President Obama, who knew about it for months without letting the public know and without taking any action against Russia prior to the election.
In fact, when Obama was asked what he did with the knowledge provided by his intel community, the President meekly responded, “I told Putin to cut it out.” Wow! That must have sent Putin hiding under his desk in the Kremlin.
In terms of criminal collusion, the Democrats are holding a weak hand, they are stuck with all the jokers in the deck. So, they are betting on obstruction of justice where Mueller made no determination of criminality. Nowhere in the Report did he say that he would have found criminal obstruction had it not been for the Department of Justice rule against indicting a sitting President.
Democrats say that Mueller left it to Congress – and particularly the House majority – to make that decision. In proffering that argument, Democrats must think Mueller is a legal bush-leaguer. Mueller well understood that under the law, his Report was a CONFIDENTIAL document which the Attorney General could do with as he saw fit. Barr could have simply locked it up in his desk and said none of it would be made public. The fact that Barr released it with minimal redactions suggestions a level of transparency that defies the criticism he receives by strident Democrats.
Mueller also well understood that his boss, Attorney General Barr, could make the determination he refused to make – whether the actions of the President rose to the level of criminal obstruction. That is the role of the DOJ. Despite the self-serving interpretation of Democrats, Mueller knew that the Attorney General – not Congress – was the first and most obvious decision-maker in terms of the Report – and that is the role of the Justice Department to exercise prosecutorial discretion – not Congress.
In fact, Congress is not a law enforcement body and has no role in determining crimes. It can only gather information and hand it over to … the Justice Department. We have seen that in the number of “criminal referrals” that have already been issued as a result of these investigations. That is how the process works.
The problem for the Democrats in bringing Mueller before the various committees they control is that the Republicans will also have an opportunity to frame questions. Perhaps the most important question will be: “When you decided that you could not come to a conclusion on obstruction of justice, was it because of the rule that a sitting President cannot be indicted, or was it simply because you could not make a legal case for obstruction regardless?”
Mueller gave no indication in the Report that he felt blocked from action by the rule. Barr – in his summaries – said that the rule was not a factor – and he had numerous discussions with Mueller before the Report was issued and during the redaction phase.
Mueller could also be asked if he had looked into Russian involvement with the Clinton campaign in terms of the money she paid for the discredited Steele dossier – and if not, why not. That fact strongly suggests that Russians were also working against Trump in order to create general chaos. What will Mueller say if he is asked about whether the Russian efforts were beneficial to Clinton or just generally disruptive?
Mueller will undoubtedly be asked why he did not insist on interrogating Trump. His surface excuse – that it would have prolonged the investigation – is odd, to say the least. Lawyers would know that an obstruction case is weakened without the testimony of the target of the investigation. And it raises another interesting point. Trump was never notified by the Special Counsel that he was, indeed, the target of the investigation. This suggests that the collusion question was settled to Mueller’s satisfaction long before the Report was handed to the DOJ – and we know he informed Barr of that fact weeks, if not months, before the Report was officially submitted.
Some member of a congressional committee is bound to ask, “In your opinion, is President Trump guilty of obstruction of justice?” Based on everything we know about Mueller, it is not likely to give Democrats the answer they want. He is more likely to stick with his Report. No determination.
Prosecutors are not commissioned to prove innocence – only to make a claim of guilt. Without that claim, innocence is assumed under our rule-of-law – even if it is NOT assumed in political circles. No matter how Democrats wish to interpret the nuances of the Report, at the bottom line, it means Trump is innocent of all charges … period.
The initial response to the Report – and probably the correct one – was that there was no criminal collusion and insufficient evidence on obstruction to make a case for criminality. Congress can impeach a President for any reason it wishes – from “high crimes and misdemeanors” to political whim. Mueller did not give them enough in his Report to support a political impeachment. They are hoping for more from direct testimony, but they may be in for yet another disappointment.
So, there “tis.