Thursday, July 25, 2019

Republicans Shouldn’t Gloat Over Mueller Testimony

In 1960, John F. Kennedy and Richard Nixon squared off in the first nationally televised presidential debate. Nixon, who was leading by eight points in the polls going into the debate, had been recently hospitalized and refused to wear makeup. Kennedy, tanned from the campaign trail, decided at the last minute to wear makeup. Visually, the two candidates contrasted sharply with Nixon appearing pale and unshaven and Kennedy looking tan and fit. People who listened to the debate on the radio thought that Nixon won, but Kennedy’s edge with television viewers was enough to erode Nixon’s lead. Yesterday’s Mueller testimony was a lot like that.

For those of us who were unable to watch the hearings but were able to hear parts of it on the radio, Mueller sound calm, collected and careful. However, those who watched the hearings on television thought that Mueller underperformed. Much of the difference seems to be a question of style versus substance.

In the hours that followed, Republicans attacked Mueller’s style as well as his refusal to answer questions about the Steele dossier, even though his opening statement made clear that he would not comment on ongoing matters or privileged information from within the Justice Department. This is consistent with Mueller’s public statement in May in which he said that any testimony would not go beyond his office’s written report.

Mueller’s grueling testimony before two committees seemed to largely consist of Democrats baiting him to attack President Trump and Republicans attacking the Russia investigation vicariously through him and chortling when he failed to show that he had every passage of his two-volume report memorized. Mr. Mueller didn’t give either side what it wanted, parsing his words carefully as lawyers tend to do.

The main thrust of Mueller’s testimony consisted of four points which were emphasized in his opening statement. First, Mueller pointed out once again that the “Russian government interfered in our election in sweeping and systematic fashion.” This fact continues to be downplayed by President Trump and Republicans. Second, there was not enough evidence to charge any member of the Trump campaign in a criminal conspiracy related to that interference. Third, the special counsel investigated attempts to obstruct justice and lie to investigators, but, fourth, “based on Justice Department policy and principles of fairness, we decided we would not make a determination as to whether the President committed a crime.”

Even though President Trump and Republicans are celebrating in the aftermath of Mueller’s testimony, the grilling did more damage to President Trump’s image. In an exchange with Rep. Hakeem Jeffries (D-N.Y.) Mueller conceded that Trump’s actions seemed to meet the three-pronged test for criminal obstruction that consists of an obstructive act, connection to an official proceeding, and corrupt intent.

In another exchange, Rep. Ted Lieu (D-Hawaii), said, “We have heard today that the President ordered former White House counsel Don McGahn to fire you. The President ordered Don McGahn to then cover that up and create a false paper trail. And now we’ve heard 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 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?”

“That is correct,” Mueller answered.

Lieu pressed, “The fact that their orders by the President were not carried out. That is not a defense because the statute itself is quite broad. It says that as long as you endeavor or attempt to obstruct justice, that would also constitute a crime.”

“I’m not getting into that at this juncture,” Mueller answered.

Later in the day, Mueller clarified his answer to Lieu, stating in his opening statement to the House Intelligence Committee, “Now before we go to questions, I want to go back to one thing that was said this morning by Mr. Lieu, who said, and I quote, ‘You didn’t charge the president because of the OLC opinion.’ That is not the correct way to say it. As we say in the report, and as I said at the opening, we did not reach a determination as to whether the president committed a crime. With that, Mr. Chairman, I’m ready to answer questions.”

In another short exchange, Rep. Val Demings (D-Fla.) asked, “Isn't it fair to say that the President's written answers were not only inadequate and incomplete because he didn't answer many of your questions, but where he did, his answers showed that he wasn't always being truthful?”

Mueller answered, “I would say generally.”

If the president’s written statement to investigators was untrue, then Donald Trump could be indicted for lying to investigators. In a separate exchange, Mueller did acknowledge that Trump could be indicted after he leaves office for crimes that he might have committed while he was president.

In another moment that directly contradicted Trump’s claims, Rep. Nadler asked, “The president has repeatedly claimed your report found there was no obstruction and it completely and totally exonerated him. That is not what your report said, is it?”

“Correct, not what the report said,” Mueller answered, effectively calling the president a liar.

If Democrats failed to score a knockout blow at the hearings, so did Republicans. As Jonah Goldberg pointed out on Twitter, Mueller hardly seemed like the zealous head of witch hunt. Instead, the special counsel was very restrained and repeatedly failed to seize opportunities to attack Trump.

One of his most direct criticisms of the president was Mueller’s statement condemning Trump’s 2016 embrace of WikiLeaks. When asked if Trump’s statements were a problem, Mueller replied, “Problematic is an understatement, in terms of what it displays, in terms of giving some hope or some boost to what is and should be illegal activity.”

The hearings were not must-see TV, but they were not a bust either. For Republicans to celebrate that Mueller did not indict the president represents a low moment for the Grand Old Party. The facts consistently presented by Mueller paint the picture of a chief executive with no respect for the rule of law.

In the end, the allegations that President Trump acted to block the Russia investigation on multiple occasions stood. Democrats made their point that Trump’s actions meet the legal definition of obstruction of justice even if Mueller’s adherence to the OLC memo prevents him from saying so publicly. Republicans are left to defend a president whose actions can only be defended by saying that he was unsuccessful in attempts to obstruct justice because his subordinates failed to follow his orders.

Mueller’s testimony and written report show that on multiple occasions, Donald Trump tried to interfere with and block the Russia investigation. Either the president knew he was acting illegally, in which case he is corrupt, or he was ignorant of the requirements of his job and unwilling to listen to advisors who tried to help him. In either case, Trump is unfit for office.

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