Bob Mueller decided to shoot up the town before he rode off into the sunset.
It is fair enough to observe that in his short but explosive speech, delivered at the Justice Department this morning, the special counsel did not say anything that wasn’t already set forth in his report — a point being emphasized by the White House. The sprawling report is 448 pages long, however. In his nine-minute address, Mueller quite consciously highlighted the portions of the report that fuel the Democrats’ calls for impeachment.
Mueller was adamant that he did not make a finding on whether President Trump should be charged with obstruction of justice because the Justice Department’s Office of Legal Counsel (OLC) has issued guidance forbidding the indictment of a sitting president. I’ve argued before that he is completely wrong on this, but that is beside the point.
What matters is that Mueller can be fairly understood to be saying he believed President Trump committed obstruction of justice. That is not the only possible interpretation, but it is the most likely interpretation.
Mueller said Wednesday that if he had concluded there was insufficient evidence to charge Trump with obstruction, he would have said so (as he did with collusion). He then emphasized that he did not say so. That strongly implies that he believes the evidence is sufficient (notwithstanding that the attorney general has found otherwise). Mueller added that, in deciding not to allege obstruction even though the evidence was arguably sufficient to prove guilt beyond a reasonable doubt, he relied on the OLC guidance. Finally, he deduced from this, and from his understanding of the Constitution, that in our system it is for Congress, not federal prosecutors, to deal with presidential misconduct.
Now, as I said, this is not the only conceivable interpretation. We could conservatively construe Mueller as saying that, because the OLC guidance prevents a sitting president from being indicted, he decided not to think about whether there was sufficient evidence to charge obstruction. But this is unlikely.
Mueller, after all, did decide there was insufficient evidence on collusion, so he obviously did not understand the guidance to forbid him from rendering judgments on the sufficiency of the evidence. (By the way, that’s why I continue to believe it was a dereliction of duty for him to fail to decide whether there was a sufficient obstruction case.) Moreover, Mueller elaborated that if he could confidently have said there was insufficient obstruction evidence, he would have. That means he thought hard about the sufficiency of the evidence, not that he avoided the issue in his analysis. Plus, if his default position was that the OLC guidance prevented him from doing the prosecutor’s job — which is to decide sufficiency-of-the-evidence questions — he should not have accepted the appointment.
A much more straightforward interpretation is that Mueller believes there is enough evidence to indict, he decided he could not do so under the guidance, and he intentionally left the matter for Congress to resolve — with the advice that felonies may have been committed. That is significant because Congress does not need a prosecutable criminal offense in order to impeach. High crimes and misdemeanors can be felonies, but they need not be. If Congress believes an abuse of power is egregious enough, it may file articles of impeachment.
I would be surprised at this point if House Democrats press ahead with their attempt to call Mueller as a witness.
Mueller quite presumptuously claimed this morning that there is no reason for him to testify because he doesn’t have anything to say beyond his report. That is not his call to make. A witness does not get to decide what questions he must answer. I wonder what Mueller thinks would happen in a court proceeding if a judge asked him a question and he answered, “Go read my brief, I have nothing more to add.” (Hint: It would not go well for him.)
That said, though, Mueller’s statement was a boon for pro-impeachment Democrats. It is not going to get better for them if he testifies and gets clobbered. House Judiciary Committee chairman Jerry Nadler is probably savvy enough to take what Mueller has given him and run with it.
Mueller has made life much tougher for Democrats from districts where Trump is popular. They’ve been walking a tightrope: To avoid offending progressives, they agree that the president has committed impeachable offenses; to avoid offending Trump-sympathetic constituents, they argue that there is no point proceeding with impeachment because there is no way the GOP-controlled Senate would remove the president.
To pull this off, they’ve been relying on the seeming ambiguity of Mueller’s treatment of the obstruction question: Was he saying there was not enough evidence, or was he saying the OLC guidance prevented him from charging? Today, he indicated it was the latter — and, for good measure, he added that in our system it is for Congress to take action against a sitting president. From that premise, the hardline anti-Trump Left will now argue that if Congress does not act, it is shirking its duty and placing the president above the law.
That is why, after Mueller finished speaking, a number of Democrats vying for the 2020 presidential nomination stridently called for impeachment. They are trying to appeal to the anti-Trump base of the party and distinguish themselves from the so-far-cautious front-runner Joe Biden. Expect lots more of this. It’s going to put a lot of pressure on Democrats who quietly believe that impeachment is a political loser.
It’s going to be a hot summer.
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