The two July 24 hearings at which former special counsel Robert Mueller testified were viewed largely as a let down for Democrats hoping to build a case for President Donald Trump’s impeachment. Going forward, the president’s foes will likely focus on his business dealings since the two avenues of collusion with the Russians and obstruction of justice are, for all intents and purposes, closed.
The integrity of Mueller’s investigation was largely dismantled by Republicans on the committees, who posed questions the star witness was unwilling – and, in many cases, unable – to answer. On key points, GOP representatives exposed fatal flaws in Mueller’s operation.
Conspiracy and Collusion
On two specific points, Republicans on the Judiciary Committee caught Mueller contradicting the findings contained within his report. Rep. Doug Collins (R-GA) questioned the former special counsel on the term “collusion.” The congressman asked Mueller: “Although your report states collusion is not a specific offense … or a term of art in federal criminal law, conspiracy is. In the colloquial context, are collusion and conspiracy essentially synonymous terms?” When Mueller answered “no,” Collins quoted from the special counsel report: “As defined in legal dictionaries collusion is largely synonymous with conspiracy as that crime is set forth in general federal conspiracy statute [18 U.S. Code § 371].”
The congressman continued to press Mueller, who appeared not have been aware that this passage was in his report, on whether he believed collusion and conspiracy were largely synonymous. Clearly, Mueller was unable to explain himself and finally conceded: “I would leave it with the report.”
The Exoneration Travesty
Since the release of the special counsel report, Democrats and their allies in the media have made much of the prosecutor’s assertion that he was not exonerating the president on the matter of obstruction of justice. That statement was highly irregular: It flies in the face of legal norms – not to mention the entire western concept of justice – that an accused person enjoys the presumption of innocence until proven guilty beyond a reasonable doubt.
As a prosecutor, Robert Mueller had no business commenting on the exoneration of the president. If it cannot be proven that the accused is guilty, then he or she is innocent. A prosecutor does not decline to charge and then add that the accused has not been exonerated.
Texas Republican John Ratcliffe took Mueller to task over this very issue. “Can you give an example other than Donald Trump,” Ratcliffe asked, “where the Justice Department determined an investigated person was not exonerated because their innocence was not conclusively determined?”
With his response, the former special counsel revealed the true nature of the investigation: “I cannot,” he answered but added, “but this is a unique situation.”
It was indeed a unique situation: It was Trump effectively on trial, and everyone connected to the Russia investigation had already determined that this president should be subject to a legal standard not applied to anyone else. The very idea that an investigation of a certain individual should be deemed “a unique situation,” calling for a unique interpretation of the criminal justice statutes, is terrifying.
“Respectfully,” Ratcliffe said in his follow-up, “it was not the special counsel’s job to conclusively determine Trump’s innocence.” He went on: “I agree with Chairman Nadler this morning when he said Donald Trump is not above the law, But he damn sure should not be below the law which is where Volume II of this report puts him.”
Integrity in Doubt
Rep. Jim Jordan (R-OH) focused on the origins of the FBI’s counterintelligence operation, which began in 2016 and targeted members of the Trump election campaign team. Mueller was entirely unwilling to discuss anything that cast doubt on the integrity of that operation. A fired-up Jordon homed in on one individual at the very center of the Russia affair. The mysterious Maltese professor, Joseph Mifsud, told Trump campaign advisor George Papadopoulos in 2016 that the Russians had “dirt” on Trump’s opponent, Hillary Clinton.
It was after Papadopoulos repeated that claim to a foreign diplomat that the FBI opened their operation, Crossfire Hurricane. Mifsud, it was revealed much later, was an FBI informant. Though the professor lied to FBI officials during later interviews, he was never charged, yet Papadopoulos was charged with lying to Bureau investigators – as were several other Trump associates.
“He’s the guy who starts it all,” Jordan said to Mueller, referring to Mifsud, “and when the FBI interviews him, he lies three times and yet you don’t charge him with a crime.” The Ohio representative – one of the most vocal critics of the Russia collusion investigation – went on to list those on the Trump team who had been charged with making false statements to federal investigators. “But the guy who puts the country through this whole saga, starts it all for three years we’ve lived this now, he lies and you guys don’t charge him, and I’m curious as to why.”
“Well, I can’t get into it,” Mueller replied. Apparently, he could not – or would not – get into anything that cast doubt upon the Russia collusion conspiracy theory. He was not willing to discuss the Steele dossier or Fusion GPS, the research firm hired by the Clinton campaign to gather opposition research on Trump. He was not willing to discuss Ukrainian businessman Konstantin Kilimnik, an associate of Paul Manafort who was portrayed in the special counsel report as a Russian agent, but who in fact had a long-standing relationship with the US State Department.
One of the main revelations of the Mueller hearings was that the special counsel report – which, clearly, Mueller himself had neither written nor read – was littered with false assumptions and incorrect information.
OLC Opinion Not a Factor
Mueller was also pressed on his oft-repeated claim that he declined to recommend an indictment of the president because an Office of Legal Counsel opinion holds that a sitting president cannot be indicted. In conversations with Attorney General William Barr, as well as in a joint DOJ-special counsel statement, Mueller had stated that he had not felt constrained by the OLC opinion. Mueller attempted at a later point to clarify the discrepancy:
“I want to go back to one thing that was said this morning by [Democratic Representative Ted] Lieu who said, and I quote, ‘You didn’t charge the President because of the [Office of Legal Counsel] 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.”
This was a key moment because a central theme of the Democrat narrative has been that, but for the OLC opinion, Mueller would indeed have recommended criminal charges against Trump.
It is also worth noting that the OLC acknowledges the fact that a president can be criminally indicted once he or she leaves office, so there was nothing preventing the special counsel from recommending criminal charges.
The other fatal blow to the anti-Trump narrative was Mueller’s refusal to agree with Democrats’ characterization of how certain actions on the part of the president met all the legal components of criminal obstruction of justice.
When New York Democrat Hakeem Jeffries attempted to walk Mueller through the elements of an obstruction charge as it related to Trump’s actions, the former special counsel finally said: “I don’t subscribe necessarily to the way you analyze that. I am not saying it is out of the ballpark, but I am not supportive of that.”
Throughout the two hearings, Mueller appeared flustered, confused, and ill-prepared. He did not give the Democrats what they wanted: He declined to read from his own report, which would have given the president’s foes some great soundbites, he refused to speculate on motives or intentions, and he would not allow himself to be coerced into stating that Trump had clearly obstructed justice.
What Mueller left unsaid – his refusal to address Republican doubts over the predication of the Russia investigation – dealt great damage to his own credibility and to that of the many allegations against the president. Democrats have been left floundering and their continued pursuit of this president, going forward, will look even more transparently partisan than it had, previous to these disastrous hearings.