Robert Mueller’s Garbo moment yesterday was a stunner and not merely because it marked his first ever public utterance on his Trump-Russia report. His refusal to say anything more about it than what he offered in his prepared statement perfectly reflects the misapplied rectitude that blemishes the report itself.
“The work speaks for itself,” he proclaimed loftily at his Justice Department briefing as if what he’s written is crystal clear. “I do not believe it is appropriate for me to speak further about the investigation.”
Moses might have spoken this way after descending from the Mount. Robert Mueller owes his fellow citizens a bit more down-to-earth candor.
Summarizing his investigation, he said his failure to make a traditional prosecutorial finding on obstruction – to leave the issue undecided — was due to the Justice Department policy ruling out indictment of a sitting president. Going beyond it, he added, would be “unconstitutional.”
Most legal experts will tell you that’s just plain wrong. The policy in question is an administrative confection with no Congressional icing. And if Robert Mueller or anybody else had been willing to test it in court, they might have gotten it tossed out – on Constitutional grounds.
His second rationale for not indicting Trump for obstruction, as he explained to reporters, is bit more convoluted. Since Trump had no opportunity to defend himself in court, said Mueller, “principles of fairness” prevented his being charged.
There’s an absurd circular logic to this that only a lawyer could love. In effect what Mueller is saying is that if you’re denied your day in court because you’re a sitting president and therefore unindictable, it would be unfair to accuse you of a crime in the first place.
Even if you accept such gnarled reasoning it would have been helpful if Mueller had told us up front that he was heading to the OK Corral with his six-shooter empty. If he’d explained to us there was no chance of indicting Trump for anything, we might now be a bit further along in figuring out how to handle this outlaw President and the prospect of continued election meddling by Russia.
To judge from his presser, Mueller wants us to believe his abstention on the obstruction issue does not mean the President is exonerated. Quoting from his report itself, he told reporters, “if we had had confidence that the president clearly did not commit a crime, we would have said so.”
Okay, fair enough. But Mueller seems oblivious to what is already happening in real time. Trump and everyone else who wants to inoculate him against accountability has seized on Mueller’s obstruction cop-out as exoneration writ large.
Mueller would doubtless counter that that’s not his problem.
But it is, if, as he suggested to reporters, he means for his report to tee up further inquiry. He noted pointedly Justice Department policy recognizes that “the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.”
That sounds like an invitation to Congress to launch impeachment proceedings forthwith. But if that’s what it is, Mueller can’t play politics by presuming to stand above politics. He can’t ignore the practical implications of his findings, for or against anything, or decline to submit to questioning by those duly elected to perform oversight. For patriotic reasons, and indeed ethically, as a star player in this drama, he has to help lead the counterattack.
Some commentators urge that he look to Ken Starr whose investigation of Bill Clinton I covered as a reporter. Aiming to set up impeachment proceedings from the start, Starr discarded “proof beyond a reasonable doubt” as his threshold for accepting evidence and adopted a more porous sieve like the “preponderance” standard used in civil cases. As a result, the brief he handed Congress supported a broad interpretation of high crimes and misdemeanors.
Mueller is incapable of such flummery and is the better for it. Indeed, as a “special counsel” answerable directly to the Justice Department as Starr was not, Mueller has less latitude. But the report he has written, sculpted as it is to the narrowest interpretations of law, could prove tough going for politicians whose priorities are different from his – particularly if he declines to help them along with direct testimony.
As part of his press briefing, he discussed the second objective of his investigation: determining whether the Trump campaign’s many Russia-related activities in 2016 rose to the level of coordinated wrong-doing. As Mueller reminded reporters, he found “insufficient evidence to charge a broader conspiracy.” He did render a traditional prosecutorial judgment on this matter, and formally let Trump off the hook.
But contrary to Mueller’s hype, this finding does not “speak for itself.”
Part of the problem is that the U.S. Criminal Code does not precisely define what he was explicitly charged to investigate, “coordination” between the Trump campaign and the Russians. He therefore had to improvise. Out of fairness to Trump, he opted for the highest possible bar and chose to interpret coordination in terms of an express “agreement,” explicit or tacit, between two parties. Without that agreement, in Mueller’s view, there can be no prosecutable coordination, conspiracy, collusion, whatever you want to call it.
He could have made things easier for himself. Campaign finance law allows coordination to be “established” on the basis of a wink and a nod between two colluders.
As Trump’s lawyer, Michael Cohen testified, Trump always does business this way, through winks, nods, hints and gestures, to ensure deniability if something goes wrong. And when candidate Trump invited the Russians to hack Hillary’s emails in July 2016, he was smoke-signaling to them he would protect them if they broke the law on his behalf.
He delivered on that message, big time. Even after being briefed by U.S. intelligence officials that Russia was responsible for the outpouring of hacked DNC emails, Trump echoed and abetted Putin’s denials and thus undercut Administration efforts to build a bipartisan consensus for strong preemptive action against Russia.
This pattern of mutual backscratching by Trump, his associates and Putin’s favorites might have proven out as illegal “coordination” if Mueller had been using a wink-and-a-nod as proof. But, instead, he insisted on finding an “agreement” amidst this slag heap and predictably wound up empty handed.
Nor did he allow admitted fact-finding problems to stymie him. During his investigation key witnesses lied, destroyed evidence and communicated by encrypted email systems which even his experienced investigators couldn’t crack. Trump was exempt from testifying before the Grand Jury or Mueller’s investigators and similar dispensation apparently was granted to Don. Jr, Ivanka and Jared Kushner.
Mueller had the honesty to admit all this in his report and the negative consequences. After listing instances in which evidence and testimony went missing, he stated: “given these identified gaps the Office cannot rule out the possibility that the unavailable information [on the coordination issue] would shed light on (or cast in a new light) the events described in the report.”
As if that weren’t hedgy enough, he added this hair-splitter: “When substantial, credible evidence enabled the office to reach a conclusion with confidence, the report states that the investigation established that certain actions or events occurred. A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.”
Well now, counselor, when do we start the cross examination? Surely you can’t tell us with a straight face that we’re entitled only to silence from you.
With all due respect, your report is incomplete and needs explaining. If you’re truly committed to justice and accountability, as doubtless you are, call up Jerry Nadler and schedule a public session with the Judiciary committee tomorrow if not yesterday.