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Mueller Should Testify

– The Justice Department on Wednesday appointed former FBI Director Robert Mueller as special counsel to oversee the federal investigation into Russian interference in the 2016 election, including potential collusion between Trump campaign associates and Russian officials.

Good piece about why Mueller is wrong not to testify before Congress:

Much of Mueller’s statement contradicts repeated clear, vivid, public statements from the president of the United States, the attorney general of the United States, and congressional Republicans. In the Trump era, facts are not a given, even when printed in black and white. The president himself confirmed this by immediately going on Twitter to mischaracterize what just happened.

Mueller himself raised the question of whether his work was sufficient in holding the president accountable, suggesting that Congress should pick up the baton. 

He said, for example, that charging Trump with obstruction of justice was not an option available to him or his team because they were bound by years-old Justice Department guidance holding that the president cannot be indicted.

Let’s stop here to observe that Trump is probably president because Mueller’s successor decided to repeatedly (and selectively, all in one direction) ignore DOJ guidelines. Of course, the Clinton Rules are always different.

None of this is new in any way. It’s all in the report. But there has been a concerted effort to say that Mueller’s failure to charge is a good reason for Congress not to do an impeachment inquiry. Mueller, however, is saying the opposite of this — that no matter what evidence he found of whatever crimes, he would not have charged Trump, and that it is up to Congress to decide. 

The same is true for the rest of the content of Mueller’s appearance today. It was brief and concise but made four clear points:

  1. Russian interference in the 2016 campaign was real, and not fake news made up by Democrats to excuse their own tactical errors as Trump and his allies have claimed. 
  2. There was “insufficient evidence” to charge Americans with involvement in a criminal conspiracy — an important legal conclusion but not an exoneration. 
  3. Trump was not cleared of obstruction of justice charges. If he had been cleared, the report would have said so. 
  4. Trump was also not charged with obstruction of justice because DOJ policy prohibits making criminal charges (even in the form of sealed indictments) against a sitting president. 

It’s difficult, of course, not to sympathize with Mueller’s view that having written this all down clearly in a report and then said it should mean he shouldn’t have to say it again before Congress. 

But even though Mueller is not a very political person, he’s also not a total naif. He’s held multiple Senate-confirmed positions and served as FBI director for a decade. He knows that media coverage matters to politics and that the presence or absence of video and live drama makes a difference to media coverage.

His legal conclusion is that this matter needs to be handled by the political branches of government — the US Congress — and that means that the politics of it matters. Going to Capitol Hill and answering questions with the cameras rolling won’t produce any new facts or new legal analysis, but it will make a difference.

Ultimately, Mueller’s position is incoherent. If it’s up to Congress to investigate the findings of his report and determine whether impeachment is warranted, then Mueller has a responsibility to aid Congress in the process and make his findings known to a broader audience.

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