Mueller and a Democrat Disaster
The former Special Counsel's humiliating day on Capitol Hill.
Former Special Counsel Robert Mueller delivered his long-awaited testimony on Wednesday to both the House Judiciary Committee and the House Intelligence Committee in back-to-back sessions. Democrats wanted to take the dry words of the special counsel’s 448-page report, which most Americans have not bothered to read, and turn it into a movie that people will watch. The Democrats were desperately hoping for a riveting summer blockbuster, perhaps replacing the summer supervillain Thanos of the “Avengers: Endgame” in the public’s mind with President Trump. Instead what Americans watching the hearings got was a time-waster worthy of the Golden Raspberry Award for Worst Picture. Mr. Mueller shed no new light in his testimony. At times he appeared confused and halting during his exchanges with the members of both committees, leaving the distinct impression that he was not familiar with the details of what appears to have been a staff directed report. The special counsel reverted repeatedly to what was written in the report. He even declined to read from the report himself, often leaving it to the Democrats to do their own “dramatic” readings as they declared over and over again that the president was not above the law.
The former special counsel became his most animated when he defended the “integrity” of the investigation and his hopelessly biased legal team. He also warned that the Russians are still interfering in the U.S. electoral process “as we sit here" and that they can be expected to continue doing so next year. But that was not why the Democrat-controlled House asked Mr. Mueller to testify. They barely touched on what the Mueller report had called Russia’s “sweeping and systematic” interference into the 2016 presidential election or its implications for future elections. They wanted ammunition from Mr. Mueller’s live testimony to lay out a compelling case for impeachment. They failed miserably.
Mr. Mueller set out some ground rules for his testimony in his opening statements to the two committees. He said that he would stick to the text of his report. He would not give his views on matters outside of his “purview.” He also declared, “I am unable to address questions about the opening of the FBI’s Russia investigation, which occurred months before my appointment, or matters related to the so-called ‘Steele Dossier.’” That is curious considering that Mr. Steele was referred to in the Mueller report itself.
The House Judiciary Committee heard first from Mr. Mueller, focusing for more than 3 hours on his report’s findings regarding possible obstruction of justice by the president. The Mueller report described a series of episodes involving the president’s statements and actions regarding the FBI and special counsel investigations. The report then analyzed the elements required to prove an obstruction of justice charge against the facts described, including whether there was substantial credible evidence of corrupt intent.
The Democrats cited specific episodes described in the report they felt provided the strongest evidence of the president’s obstruction of justice. These included President Trump’s reported directive to then-White House Counsel Don McGahn to remove Mr. Mueller, which was not carried out. Democrat questioners inquired into the president’s reported order to Mr. McGahn to deny he told him to try to get rid of Mr. Mueller and create a record to that effect, which also was not carried out. Democrat questioners also asked about the evidence described in the report that the president told former campaign manager Corey Lewandowski to instruct then-Attorney General Jeff Sessions, who had recused himself from the Russia investigation, to restrict the scope of the Mueller probe. This never led anywhere either. Mr. Mueller admitted that his investigation was not stopped or impeded, although at one point he agreed with a questioner that lack of cooperation by some Trump aides and their alleged lies did hinder the investigation’s progress. There were also questions regarding evidence of alleged witness tampering, including dangling of pardons and attempts to urge witnesses to remain loyal to the president by Trump aides. It is worth noting that those aides themselves were not charged with conspiring to obstruct justice.
Mr. Mueller confirmed his belief in the report’s findings of specific facts relating to the president’s questionable conduct. However, he pointedly rejected Democrat Rep. Hakeem Jeffries’ attempt to recast the investigation’s conclusion with respect to the McGahn episodes. “The investigation found substantial evidence that when the president ordered Don McGahn to fire the special counsel and then lie about it, Donald Trump one, committed an obstructive act, two, connected to an official proceeding, three, did so with corrupt intent," Rep. Jeffries declared as he tried to apply each of the three elements of an obstruction of justice charge to the facts laid out in the report. “I’m not supportive of that analytical charge,” Mr. Mueller replied.
Democrats on the House Judiciary Committee sought to exploit the Mueller report’s refusal to exonerate the president. In his questioning, House Judiciary Committee Chairman Jerrold Nadler harped on this point. Chairman Nadler quoted from the report’s statement that “if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment.” Rep. Nadler then asked, “Now does that say there was no obstruction?” Mr. Mueller replied, “No.”
Chairman Nadler further inquired, using a double negative, “So the report did not conclude that he did not commit obstruction of justice, is that correct?” Mr. Mueller replied, “That is correct.” Rep. Nadler then asked, “Did you actually totally exonerate the president?” Mr. Mueller replied, “No” and agreed that, in Rep. Nadler’s words, his “report expressly states that it does not exonerate the president.”
Republican Rep. John Ratcliffe put the so-called non-exoneration issue into proper perspective. He pointedly asked Mr. Mueller which Justice Department policy “set forth a legal standard that an investigated person is not exonerated if their innocence from criminal conduct is not conclusively determined.” Mr. Mueller provided no reference to such a policy. “Can you give an example other than Donald Trump where the Justice Department determined an investigated person was not exonerated because their innocence was not conclusively determined?” Rep. Ratcliffe continued. Mr. Mueller responded, “I cannot, but this is a unique situation.”
Rep. Ratcliffe declared what should be obvious to every reasonable American with even a cursory familiarity with the constitutional principle of due process. He said “the bedrock principle of our justice system is a presumption of innocence. It exists for everyone. Everyone is entitled to it, including sitting presidents. And because there is a presumption of innocence, prosecutors never, ever need to conclusively determine it.”
In short, Mr. Mueller and his team created out of whole cloth an inversion of the presumption of innocence by applying their made-up no-exoneration standard. And, as several Republican representatives pointed out, Mr. Mueller’s office also indulged in the double standard. It went after various Trump associates for lying, for example. However, Mr. Mueller failed to explain why no action was taken against Joseph Mifsud, who, according to the Mueller report, had fed information to George Papadopoulos that “the Russian government had ‘dirt’ on Hillary Clinton in the form of thousands of e-mails.” Mr. Mifsud was named multiple times in the Mueller report, including repeated references to his lying to investigators.
Some Democrats tried to use Mr. Mueller’s claim of reliance on the Department of Justice’s policy of not indicting a sitting president, which was based on a longstanding opinion of the department’s Office of Legal Counsel. “Based on Justice Department policy and principles of fairness, we decided we would not make a decision as to whether the president committed a crime,” Mr. Mueller said in his opening statement. “That was our decision then and it remains our decision today.” There was some confusion regarding a response Mr. Mueller gave to a Democrat’s question during the morning session, in which he appeared to agree with the questioner that his office decided not to charge the president with obstruction of justice because of the Department of Justice policy. During the opening of the afternoon session, Mr. Mueller sought to correct the record. He said, “That is not the correct way to say it. As we say in the report and as I said at the opening, we did not reach a determination as to whether the president committed a crime.”
Mr. Mueller answered “true” to Chairman Nadler’s hypothetical question whether “under Department of Justice policy, the president could be prosecuted for obstruction of justice crimes after he leaves office.” (Emphasis added) Yet when Democratic Rep. Eric Swalwell asked Mr. Mueller whether he agreed with a May letter signed by about 1,000 former federal prosecutors of both parties, who opined that Mr. Trump would be charged with obstruction if he weren't president, Mr. Mueller replied, "They have a different case."
After the conclusion of the Judiciary Committee hearing, Mr. Mueller faced questioning for nearly three hours by the House Intelligence Committee, which focused on the so-called Russian “collusion” charge. After clarifying that, for criminal law purposes, the term “collusion” has no legal meaning, the Mueller report had definitively concluded that despite evidence of “numerous links between individuals with ties to the Russian government and individuals associated with the Trump Campaign, the evidence was not sufficient to support criminal charges. Further, the evidence was not sufficient to charge that any member of the Trump Campaign conspired with representatives of the Russian government to interfere in the 2016 election.”
In a summer of TV re-runs, the Democrats craved for a re-run of the Mueller investigation’s conclusion of no conspiracy but with a different ending more to their liking. House Intelligence Committee Chairman Adam Schiff started things off by saying that it did not really matter whether there was sufficient evidence to charge President Trump with a provable crime of conspiracy. Rep. Schiff said the president and members of his team did something worse. They displayed “disloyalty to country.” That is a reckless charge coming from a man who seemed very interested in the specifics when Russians, who turned out to be pranksters, told Rep. Schiff in a telephone call that they had compromising information regarding Donald Trump.
Rep. Schiff and his Democrat colleagues did their best to paint a picture of Mr. Trump and his campaign aides as very eager to receive help from the Russians to get dirt on Hillary Clinton and to make money off their Russian connections. The Democrats cherrypicked the report’s descriptions of contacts between Trump campaign aides and Russians, both in and out of the Russian government. Several Democrats dwelled on the June 2016 Trump Tower meeting between the Trump campaign aides and Russian individuals, including a Russian lawyer Natalia Veselnitskaya, who supposedly had “dirt” on Hillary Clinton. Donald Trump himself was not at the meeting, which was attended by Donald Trump Jr. and the president’s son-in-law Jared Kushner. Nothing came of the 20-minute meeting and no attendees at the Trump Tower meeting were charged with conspiracy. Mr. Mueller could not explain the failure of his team to inquire into meetings that the Russian lawyer Natalia Veselnitskaya had, both the day before and the day after the Trump Tower meeting, with the founder of the firm Fusion GPS, Glenn Simpson. Fusion GPS was the firm aiding the Hillary Clinton campaign in digging up “dirt” on Donald Trump through Russian-sourced allegations contained in the unverified Steel dossier.
One of the few consolations the Democrats can take away from their hearings was Mr. Mueller’s characterization of WikiLeaks as "a hostile intelligence service" and his statement that the Trump campaign's praise of WikiLeaks was "problematic." He added, "Problematic is an understatement" and that it “calls for an investigation."
Mr. Mueller came into his job as special counsel with the proverbial bang. History will record his post-investigation congressional testimony as not a bang but a whimper.