Robert Mueller Did Not Do His Job
Robert Mueller Did Not Do His Job
Charles Dharapak / AP
This piece first appeared on Truthout.
During Special Counsel Robert Mueller's televised appearances before the
House Judiciary Committee and the House Intelligence Committee, he testified
to facts that amount to lawbreaking by Donald Trump. Contrary to Trump's
mantra of "No Collusion, No Obstruction, Complete and Total EXONERATION,"
Mueller affirmed that his 448-page report did not exonerate the president or
reach a conclusion about whether Trump committed obstruction of justice.
The Mueller team found "substantial evidence" of the elements required to
convict Trump of obstruction of justice. But, constrained by a Justice
Department rule forbidding the indictment of a sitting president, Mueller's
report did not conclude whether Trump actually committed the crime.
Judiciary Committee Chairman Jerrold Nadler asked Mueller, "And your
investigation actually found, quote, 'multiple acts by the president that
were capable of exerting undue influence over law enforcement
investigations, including the Russian interference and obstruction
investigations.' Is that correct?" Mueller answered, "Correct."
Those acts, according to the Mueller report, include "efforts to remove the
Special Counsel and to reverse the effect of the Attorney General's recusal;
to the attempted use of official power to limit the scope of the
investigation; to direct and indirect contacts with witnesses with the
potential to influence their testimony."
When Democratic Rep. Debbie Mucarsel-Powell inquired whether the president's
efforts were largely unsuccessful because the people around him refused to
obey his orders, Mueller replied, "Correct." But Mueller also confirmed that
an attempt to obstruct justice can be a crime even if it doesn't succeed.
Mueller's Failure to Subpoena Trump
During his 22-month investigation, Mueller did not interview Trump and did
not subpoena him to compel his attendance. Mueller told Nadler that Trump
refused a request to be interviewed even though the special counsel and his
team told the president's lawyer that "an interview with the president is
vital to our investigation" and "it is in the interest of the presidency and
the public for an interview to take place."
Democratic Rep. Sean Patrick Maloney asked Mueller why he didn't subpoena
Trump. Mueller said they negotiated with Trump for a little more than a
year. As they neared the end of the investigation with little success in
getting the interview, they declined to use their subpoena power because
Trump would fight it and they wanted to expedite the end of the
investigation.
Maloney queried, "Did you have sufficient evidence of the president's intent
to obstruct justice, and is that why you didn't do the interview?" Mueller
responded, "We had to make a balanced decision in terms of how much evidence
we had, compared to the length of time." That entails balancing "how much
evidence you have, does it satisfy the last element against how much time
are you willing to spend in the courts litigating the interview with the
president."
When he said "the last element," Mueller was referring to the intent to
obstruct, which is the third element necessary to prove obstruction of
justice. The crime of obstruction of justice requires (1) an obstructive act
(2) connected with an official proceeding (3) with an intent to obstruct.
Mueller's failure to subpoena Trump was a mistake. John Dean, White House
counsel during the Watergate scandal, criticized Mueller because he didn't
vigorously pursue Trump's testimony. Appearing on CNN, Dean speculated that
Mueller wouldn't have gone after the Nixon tapes because it would take too
long. It was the court order to produce those tapes that led to Nixon's
resignation.
There is no substitute for an in-person confrontation to determine whether a
person is being truthful. Bill Clinton was impeached for lying to a grand
jury.
An interrogation of Trump by the special counsel could have made a
significant difference in the findings of the report. Mueller admitted that
Trump's written responses to the special counsel's questions were "certainly
not as useful as the interview would be." When asked whether Trump "wasn't
always being truthful" when he provided written answers, under oath, to the
special counsel's questions, Mueller replied "I would say generally."
Mueller should have subpoenaed Trump a couple of months after the
investigation began.
While the Democrats on the committees queried Mueller about the contents of
his report, the Republicans did not question the facts. They focused on the
origins of the Russia investigation and tried to discredit Mueller's
methodology. GOP Rep. James Sensenbrenner asked Mueller why he spent 182
pages analyzing obstruction of justice if he didn't make a traditional
prosecutorial decision. Mueller replied that you don't know where it will go
until you investigate and the Justice Department regulation says you can
continue an investigation even if you don't indict.
Mueller testified that the Russian government interfered in the 2016
election in a "sweeping and systematic fashion" to help Trump win the
election. He said, "We did not address 'collusion,' which is not a legal
term. Rather, we focused on whether the evidence was sufficient to charge
any member of the campaign with taking part in a criminal conspiracy. It was
not." Mueller said his team believes their investigation "was hampered by
Trump campaign officials' use of encryption communications" and "the
deletion of electronic messages."
The Mueller report, however, did not determine whether Trump committed
obstruction of justice. "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," the report says. "Based on the facts and the
applicable legal standards, we are unable to reach that judgment.
Accordingly, while this report does not conclude that the President
committed a crime, it also does not exonerate him."
Mueller Passes the Baton to Congress
Mueller's report "determined that there was a sufficient factual and legal
basis to further investigate potential obstruction-of-justice issues
involving the President."
Although he wouldn't use the word "impeachment" during his testimony,
Mueller alluded to it. His report says, "The conclusion that Congress may
apply the obstruction laws to the President's corrupt exercise of the powers
of office accords with our constitutional system of checks and balances and
the principle that no person is above the law."
The power of impeachment lies with the House of Representatives and the
process begins in the House Judiciary Committee. If a majority of the House
votes to impeach, the case moves to the Senate for trial. Two-thirds of the
senators must agree to convict and remove the president from office.
House Speaker Nancy Pelosi has thus far resisted launching impeachment
proceedings, opting instead to continue the process of holding committee
hearings on Trump's culpability. Pelosi, however, told The New York Times
that the Mueller hearing "is a crossing of a threshold in terms of the
public awareness of what happened and how it conforms to the law - or not."
She added, "I do believe that what we saw today was a very strong
manifestation - in fact, some would even say indictment - of this
administration's code of silence and their cover-up."
The House Judiciary Committee is pursuing enforcement of its subpoena of
former White House counsel Donald McGahn to testify publicly at a hearing.
Shortly after Trump learned that Mueller was investigating him for criminal
activity, the president ordered McGahn to fire Mueller. McGahn refused and
threatened to resign. Trump backed down. McGahn is a key witness to
obstruction of justice by Trump.
Democratic Rep. Jamie Raskin told The New York Times, "The case for
impeachment based on the Mueller investigation has been now publicly
crystallized and articulated." Democratic Rep. Pramila Jayapal concurs.
"What became clear today was that this is a groundbreaking moment," she
said. "This now has allowed us to break open what was stuck in the Mueller
report."
The number of House members who favor impeachment has climbed above 90 since
the Mueller hearings.
As the congressional hearings continue to unfold, the public will become
increasingly aware of Trump's criminal responsibility and popular support
for impeachment will grow.
Marjorie Cohn
Contributor
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law and a
former president of the National Lawyers Guild. She wrote "Cowboy Republic:
Six Ways the Bush Gang Has Defied the Law," co-authored .
Marjorie Cohn
