Special Counsel Robert Mueller testifies before Congress

Special Counsel Robert Mueller’s testimony went like I thought it would as I warned you about lowering your expectations regarding his testimony:

Mueller is not to discuss any limitations placed upon the scope of his investigation by Deputy Attorney General Rod Rosenstein, acting Attorney General Matthew Whitaker, or Attorney General William Barr, or any deliberations among his special counsel team, or between his special counsel team and the Department of Justice, regarding decisions not to subpoena certain witnesses (e.g., Donald Trump and Donald Trump, Jr.), and decisions regarding prosecutions and non-prosecutions, which in all likelihood includes his explanation for not making a prosecutorial decision on obstruction of justice, which is what he was hired to do.

By some media counts, there were over 200 times that Mueller said “I’m not going into that,” “I’m not going to discuss that,” or “that’s outside the purview of my investigation,” etc.

Mueller appeared to be all of his almost 75 years. He was low-energy, had difficulty understanding questions or struggled to locate a passage in his report, and did not always appear to be in command of the facts. He was not nearly as sharp or animated as I have seen him when he was the Director of the FBI.

Republicans took advantage of Mueller’s inability to answer questions because of the restrictions DOJ placed on his testimony by pursuing their scripted questions presenting the long-running Fox News conspiracy theories for use on the “opinion” programs on Fox News. Mueller effectively unilaterally disarmed, failing to vigorously defend his investigation against these Fox News conspiracy theories. (He did defend his prosecution team from Republican attacks on several occasions).

But Robert Mueller did refute Donald Trump’s oft-repeated propaganda talking points about the Mueller report in his testimony. Mueller testified that the Russian attack on the 2016 election was not a “hoax,” his Special Counsel investigation was not a “witch hunt,”his report did not address “collusion” but the criminal code provision for conspiracy. Robert Mueller kneecaps President Trump’s no collusion, no obstruction mantra. His report declined to make a prosecutorial determination regarding the multiple acts of obstruction of justice outlined in Part 2 of his report, and he specifically did not exonerate the president. As his report says: “”If we had confidence the president clearly did not commit a crime, we would have said so.”

Rep. Jerry Nadler, the chair of the House Judiciary Committee, questioned former special counsel Robert Mueller during his July 24 testimony.

Mueller mostly confirmed the Democrats’ view of the evidence contained in his report. Highlights from Axios:

House Judiciary Highlights

• • • Asked by House Judiciary Chair Jerry Nadler (D-N.Y.) if his report exonerates President Trump — as Trump has frequently and falsely claimed — Mueller responded: “No.” He said that it is unconstitutional to indict a sitting president, but told Rep. Ken Buck (R-Colo.) that prosecution could in theory occur after Trump leaves office.
    • Rep. Ted Lieu (D-Calif.) asked Mueller if the reason that he did not indict Trump is because of the Justice Department’s Office of Legal Counsel opinion that a sitting president cannot be indicted. Mueller responded: “That is correct.” [Note: In his second hearing before the House Intelligence Committee, Mueller attempted to clarify his answer: “As we say in the report, we did not reach a determination as to whether the president committed a crime.”
    • Mueller told Rep. Val Demings (D-Fla.) that he would “generally agree” that lies by Trump campaign and administration officials who were interviewed “impeded” the investigation.
    • Mueller told Rep. Hank Johnson (D-Ga.) that Justice Department ethics officials concluded that he had no conflicts of interest that prevented him from serving as special counsel. He also denied, for the first time, Trump’s claim that his application for FBI director was rejected. He said he discussed the FBI job with Trump, but “not as a candidate.”

House Intelligence Highlights

• • • In his opening statement, Mueller corrected an exchange he had with Rep. Ted Lieu (D-Calif.) in the first hearing: “You did not charge the president because of the OLC opinion. That’s not the correct way to say it. As we say in the report and I said at the opening, we did not reach a determination as to whether the president committed a crime.”
    • Mueller told Rep. Sean Maloney (D-N.Y.) that he didn’t subpoena President Trump for an interview “because of the necessity of expediting” the investigation. “If we did subpoena the president, he would fight the subpoena and we would be in the midst of the investigation for a substantial period of time.”
    • Mueller called Trump and Donald Trump Jr.’s repeated praise of stolen WikiLeaks material “disturbing and also subject to investigation.” He added: “Problematic is an understatement in terms of giving some hope or boost to what is or should be illegal activity.”
    • Responding to questions by Rep. Will Hurd (R-Texas) about future election interference, Mueller said: “Many more countries are developing capabilities to replicate what the Russians have done … They are doing it as we sit here and they expect to do it during the next campaign.”
    • Mueller told Rep. Val Demings (D-Fla.) that it is “generally” fair to say that many of Trump’s written interview answers were not only incomplete, but also showed he wasn’t always being truthful. Mueller would not answer whether he found Trump to be credible.

See Transcript of Robert S. Mueller III’s testimony before the House Judiciary Committee.

See Transcript of Robert S. Mueller III’s testimony before the House Intelligence Committee.

The defining moments of the day, in my opinion, came from House Intelligence Committee Chairman Adam Schiff, who demonstrated his skills as a former prosecutor. Rep. Schiff concisely summarized the import of the Mueller report in his opening statement:

And Rep. Schiff used leading questions to elicit the concise responses he wanted from Mueller.

Harry Litman summarizes at the Washington Post, Five things we learned from Mueller’s first round of questioning:

There will be plenty of comment on Wednesday about Robert S. Mueller III’s lack of acuity in his sworn testimony before the House Judiciary Committee. And, yes, there was fatigue evident, even on his face, from the moment the former special counsel took the witness chair.

But he was plenty sharp overall and in key moments vigilant about policing the lines he drew in advance about what he would and would not discuss. After a time, the members ceased even trying to get him to veer outside those boundaries. One result of Mueller’s low energy level is that there weren’t any thunderbolt moments, at least not in the Judiciary Committee hearing. But several developments stand out:

First, notwithstanding the concerns that lawmakers would be undisciplined and grandstanding, there was an impressive degree of forethought and coordination on both sides. Democrats went through discrete episodes in the report, including the most serious instances of obstruction. The questioning underlined serious allegations of misconduct on the president’s part that, to date, he and the attorney general have managed to obscure.

Second, the Democrats had what appeared, at least at first, to be two very solid moments of questioning. The most notable was Rep. Ted Lieu’s (Calif.) apparent success at getting Mueller to say that his team didn’t reach an indictment decision for President Trump on obstruction because of the Office of Legal Counsel memo barring such a move. That was microscopically close to saying that, but for the memo, Trump (like anyone else in the country) would have been indicted. But Mueller walked back his answer in the afternoon session in the House Intelligence Committee, emphasizing that the office had made no determination about Trump’s guilt.

The other blow came when Rep. Val Demings (D-Fla.) got Mueller to say that the lies of the president and his circle had impeded the investigation. That’s significant in itself and also a sufficiently clear back-and-forth to appear unedited on the newscasts that will be how most Americans digest today’s hearing.

Third, as for the Republicans, they chose more often to make speeches about the probe’s inception, and on a few occasions drew at least mild fire from Mueller, particularly at the charge that he assembled a politically biased team: He insisted with pride that he had never asked an employee about political affiliation in his 25 years in law enforcement. But it’s a tossup whether the Republican attacks changed any minds.

Fourth, it was noteworthy, and something of a surprise, that Mueller book-ended his testimony by emphasizing that he had charged his troops to act not only with integrity but also with expeditiousness, and to go “not a day longer” than necessary. From the start then, Mueller was determined to make quick work of the probe. That obviously came at a cost, and it’s worth considering whether the emphasis on speed sacrificed important results that Mueller otherwise could have attained.

Finally, the Democrats’ overall planning extended to final 15-second summations at the end of each period of questioning. Several simply charged that Trump had obstructed justice, packaged with the bromide that nobody is above the law. But several — including the final few — pointed toward the need for additional investigation given all that was in the Mueller report.

Thus, the Democrats had made a decision in advance of the hearing to use it to try to convince the public of the need for additional investigation. Whether the House now proceeds or stands down depends on the success of that strategy. That verdict won’t be clear for a week or more.

As Paul Waldman says, Mueller all but confirmed that Trump committed obstruction of justice:

I want to highlight two lines of questioning, one from a Republican and one from a Democrat, that made clear that were it not for Justice Department policy stating that a sitting president can’t be indicted, Trump would likely be charged with crimes.

The first was from Republican Rep. Ken Buck of Colorado, who apparently unintentionally got Mueller very close to saying that there was adequate evidence to convict Trump of obstruction of justice. Buck asked whether Trump could be convicted on an obstruction charge, and Mueller responded that he couldn’t make that judgment because of Justice Department policy. Here’s what happened next:

BUCK: Let me just stop. You made the decision on the Russian interference [conspiracy]. You couldn’t have indicted the president on that. And you made the decision on that. But when it came to obstruction, you threw a bunch of stuff up against the wall to see what would stick, and that is fundamentally unfair.

MUELLER: I would not agree to that characterization at all. What we did is provide to the attorney general in the form of a confidential memorandum our understanding of the case, those cases that were brought, those cases that were declined, that one case where the president cannot be charged with a crime.

BUCK: Okay, but the … could you charge the president with a crime after he left office?

MUELLER: Yes.

BUCK: You believe that he committed … you could charge the president of the United States with obstruction of justice after he left office?

MUELLER: Yes.

That is what soccer fans call an “own goal.” What Buck inadvertently argued, with Mueller’s help, was that while the evidence of Trump’s personal cooperation with Russia was insufficient to sustain a conspiracy charge, the evidence may well have been sufficient to sustain an obstruction charge, and it may have only been Trump’s current position that is saving him from an indictment.

Mueller himself will not state that conclusion, and it seems that when he answered that the president could be charged with obstruction after leaving office he was speaking in a general, hypothetical sense. But the fact that Buck had just pointed to the difference between potential conspiracy charges on one hand, which Mueller declined to make for Trump or others, and obstruction of justice on the other, which Mueller laid out in exhaustive detail, can’t help but raise the question in not just a theoretical but a very concrete way.

Which brings us to the next exchange, between Mueller and Democratic Rep. Ted Lieu of California. You can watch it here.

Lieu took one episode — when Trump instructed his former campaign manager Corey Lewandowski to tell Attorney General Jeff Sessions on the president’s behalf to “un-recuse” himself from the Russia investigation, seize control of it and then direct it away from the 2016 campaign entirely to focus only on the future — and showed how it met all three elements necessary to establish obstruction of justice.

The transcript is rather long, so we’ll condense it. Lieu began by getting Mueller’s agreement that this action satisfied the first element, an obstructive act:

LIEU: You wrote there on Page 97, “Sessions was being instructed to tell the special counsel to end the existing investigation into the president and his campaign.” That’s in the report, correct?

MUELLER: Correct.

LIEU: That would be evidence of an obstructive act, because it would naturally obstruct the investigation, correct?

MUELLER: Correct.

Lieu then established that the second element of obstruction — a connection to an official proceeding — had also been satisfied, because the grand jury convened by the special counsel was in operation at the time, to which Mueller agreed. Then they moved to the third element of corruption of justice, corrupt intent:

LIEU: You wrote, “Substantial evidence indicates that the President’s effort to have Sessions limit the scope of the Special Counsel’s investigation to future election interference was intended to prevent further investigative scrutiny of the President’s and his campaign’s conduct.” That’s in the report, correct?

MUELLER: That is in the report. …

LIEU: … Now we’ve heard that the president ordered Corey Lewandowski to tell Jeff Sessions to limit your investigation so that he — you — stop investigating the president. I believe a reasonable person looking at these facts could conclude that all three elements of the crime of obstruction of justice have been met. And I’d like to ask you, the reason again that you did not indict Donald Trump is because of OLC opinion stating that you cannot indict a sitting president, correct?

MUELLER: That is correct. [A Freudian slip revealing his actual internal thought process?]

When he appeared before the Intelligence Committee in the afternoon, Mueller clarified this exchange, noting that it was not solely because of the Office of Legal Counsel opinion that he did not charge Trump with a crime. Instead, he said, “we did not reach a determination as to whether the president committed a crime.”

But Buck was right: Mueller concluded that he didn’t have enough evidence for a conspiracy charge for Trump, his family or his associates, so he said so. He said nothing of the sort on the question of obstruction of justice.

And it’s pretty clear what that means…

That we have a criminal in the White House who would have been indicted but for the legally flawed Office of Legal Counsel policy which prevents charging a sitting president with a crime. That only leaves the remedies of impeachment while in office, and prosecution after leaving office, as Mueller says in his report, at Footnote 1,091, which appears on Page 178 (emphasis mine).

A possible remedy through impeachment for abuses of power would not substitute for potential criminal liability after a President leaves office. Impeachment would remove a President from office, but would not address the underlying culpability of the conduct or serve the usual purposes of the criminal law. Indeed, the Impeachment Judgment Clause recognizes that criminal law plays an independent role in addressing an official’s conduct, distinct from the political remedy of impeachment. See U.S. CONST. ART. l, § 3, cl. 7. Impeachment is also a drastic and rarely invoked remedy, and Congress is not restricted to relying only on impeachment, rather than making criminal law applicable to a former President, as OLC has recognized. A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. at 255 (“Recognizing an immunity from prosecution for a sitting President would not preclude such prosecution once the President’s term is over or he is otherwise removed from office by resignation or impeachment.”).

Your move, Nancy Pelosi.