A response to Robert Mueller’s objection to testifying before Congress

0
570

I think David Atkins at the Political Animal blog gets it exactly right. Dear Robert Mueller: Not Testifying Publicly Is an Intensely Political Decision:

Robert Mueller deserves some props for trying to be a consummate professional, avoiding political theater and playing the part of the guarded, hyper-competent institutional loyalist. But there are times when that approach can be counterproductive, including to the very institutions whose honor and seriousness it is intended to defend. This is one of those times.

Special counsel Robert Mueller is eager to avoid the politics swirling around his investigation into the Trump campaign and Russia’s 2016 influence efforts and doesn’t want to testify publicly on Capitol Hill about his findings, House Judiciary Committee Chairman Jerry Nadler said Thursday.

“He’s willing to make an opening statement, but he wants to testify in private,” he said. “We think it’s important for the American people to hear from him and to hear his answers to questions about the report.”

In another era, this might have been defensible. In the Trump era, when the guard rails against an unbalanced despotic executive are rapidly failing and every battle is being waged not within the guidelines of institutional laws and norms but in the court of public opinion, it is crucial that every player understand and participate in the game that is being played.

In Mueller’s case, he himself set the rules of the game by placing prosecution for obstruction of justice out of the hands of the Justice Department and into the hands of Congress. Mueller can hardly be blamed for this: he was simply following guidelines established by the agency to avert a constitutional crisis, and the Constitution does clearly establish that accountability for the president lies in impeachment by the House and trial in the Senate.

But, of course, that is a fundamentally political process. The Founders made a forgivable error in assuming that the prerogatives of each branch of government would overwhelm partisan corruption by giving Congress the power to hold a lawless executive accountable. But in the modern era, it is obvious that only a very public airing of a president’s crimes would put enough pressure on congressional members of his own party to convict and remove him from office.

In refusing to make public testimony about the results of his inquiry into the president’s wrongdoing—the results of which were very publicly mischaracterized by an attorney general acting as the president’s personal defense attorney—Mueller is himself making an intensely political decision. It’s a decision that ironically assists the president in obstruction of justice by preventing a jury of his peers in the Senate from experiencing the public pressure that might be required to keep them honest.

Once accountability becomes a matter for Congress rather than law enforcement, everything about it becomes a de facto political spectacle. Testimony given in private makes no difference, as quiet secrecy is precisely what the president’s defenders are counting on for his defense. By contrast, the president and Attorney General Barr are clearly set on selectively and speciously declassifying elements of the investigation designed to cast the investigators in a bad light. The institutions—or the institutionalists within them—likely won’t be able to resist that pressure.

There is no room left for guarded hyper-professionalism at this moment. The entire process of justice for Trump is now political, and refusing to publicly testify is also a political act—one that assists the president’s cronies in helping him to escape accountability for the very crimes Mueller helped uncover.

Michael Tomasky similarly writes at the New York Times today, Mueller Is Admirably Apolitical. That’s the Problem.

Robert S. Mueller III has spoken, but he had very little to say. As he said at a brief news conference on Wednesday morning, he will not go beyond what his report said. He will not criticize Attorney General Bill Barr, even though he wrote a letter to Mr. Barr in late March complaining that the attorney general’s summary of the Mueller report did not capture its “context, nature, and substance.”

And while he didn’t completely close the door on appearing before Congress, Mr. Mueller made it clear that it wouldn’t exactly be must-see TV, so what would be the point.

What we saw on display in Mr. Mueller’s nine-minute statement was his often discussed sense of rectitude and propriety. These are admirable attributes, normally. But we might well wonder whether those attributes are what is needed in the age of Donald Trump, or whether the preservation of our democratic institutions demands more.

Born in Manhattan to a former Navy officer and the granddaughter of a railroad executive, Mr. Mueller was the product of an era and a social class to whom the kind of flesh-ripping partisanship we have today was absolutely anathema.

He grew up mostly in Princeton, N.J. At a private school he attended in New Hampshire, a lacrosse (yes, lacrosse) teammate was John Kerry. It’s worth mentioning Mr. Kerry, because he was the same sort: well-born and imbued with the identical sense of class duty. Mr. Kerry, as is well known, enlisted in the Navy even before he graduated from Yale in 1966, and insisted he be sent to Vietnam.

* * *

Mr. Kerry is a Democrat, and Mr. Mueller a Republican. But in their social stratum, while Republicans surely outnumbered Democrats, it didn’t matter all that much. You could, in those days, be in either party and still have the same sense of duty and even, unimaginable as it seems today, believe many of the same things. Thus Mr. Mueller could be comfortable spending much of his career in the Department of Justice in one form or another, being named to posts by Democrats and Republicans alike.

And that is the Robert Mueller who did not want to be seen as being part of anything too “political.” As a creature of his generation, his class, the Marines and the Justice Department, being political surely goes against every instinct he has.

But there is another ideal that men like Mr. Mueller and Mr. Kerry were raised to uphold: the willingness to stand up to the dark impulses of the moment. There is a story, first reported by Jane Mayer in The New Yorker, that illustrates the mind-set perfectly. Shortly after the Sept. 11 attacks, in the face of all the hysteria, precious few lawyers were willing to defend suspected terrorists. At a Washington dinner party, guests began to turn on Tom Wilner, a corporate lawyer who was at the time defending a Guantánamo detainee.

After a guest asked Mr. Wilner how he could do such as thing, Mr. Mueller, who was also at the party, stood up. He raised his glass and said: “I toast Tom Wilner. He is doing what an American should.”

Now let us ask: What do we suppose a man who toasted Tom Wilner in such a fashion must think of Donald Trump?

I think we know. And yet, Mr. Mueller will not say so publicly. He just reiterates that he wants the evidence to speak for itself. The evidence, however, was not allowed to speak for itself, as he knows. The attorney general spoke for it. And many Republican members of Congress apparently didn’t even read the evidence. The president of the United States mocks it and lies about it, saying the report found no evidence of obstruction.

And so we are living in a clash of Robert Mueller’s two Americas. In the America in which he grew up, and the America he has served with rectitude and dignity, riding quietly off into the sunset would perhaps have been the right thing to do.

But that America is no longer. Shards of it remain, but it is under constant assault. If Mr. Mueller wishes to serve and preserve that America, he might still ask himself whether this brief statement followed by silence is the best way to do that. And he should determine to do, to quote his old toast, what an American should.