There was a moment, early in Robert Mueller’s House Judiciary Committee testimony today, that stood at least a some small chance of altering the inexorable momentum against impeachment. It came in the course of questioning by California Democrat Ted Lieu.
“I’d like to ask you the reason, again, that you did not indict Donald Trump is because of OLC [Office of Legal Counsel] opinion stating that you cannot indict a sitting president, correct?” Lieu asked Mueller.
Mueller responded simply, “That is correct.”
Mueller reiterates that OLC decision is reason why he didn't indict Trump pic.twitter.com/urwwpEWoNb
— TPM Livewire (@TPMLiveWire) July 24, 2019
Combined with Mueller’s testimony that the president could be charged after he left office, this exchange created an implication that only the presidency was saving Donald Trump from a criminal charge that any other American citizen would face. This was an unambiguous, explosive claim.
And then Mueller walked it back. Early in the afternoon, he told the House Intelligence Committee, “I want to go back to one thing that was said this morning by [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,” Mueller said. “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.”
And just like that, Democratic dreams of impeachment died. Again. Going into the hearing, impeachment advocates needed either explosive new claims or a compelling prosecutorial performance to generate meaningful new interest in impeachment. If they could get both new facts and a compelling performance, then the short-term demand to launch a formal impeachment inquiry would surge.
They got neither. There are no explosive new facts, and Mueller did not give a compelling prosecutorial performance. Quite the contrary. The most charitable assessment of Mueller’s performance is that it was the work of a man who objected to the proceedings and wanted his written work to stand for itself. There was no Perry Mason moment. There were no prosecutorial flourishes. There were no flourishes at all.
In fact, even the Democratic hope of highlighting damaging elements of the Mueller report for a public that likely hadn’t even read a page was frustrated and interrupted by Republicans who used their time to attack the credibility of the investigation itself. Each side emerged with more red meat for the base. Neither side discovered truly meaningful new facts.
The simple truth is that by the time the Mueller report emerged, enough Americans had already absorbed and evaluated each new damaging revelation about Trump’s misconduct or his team’s Russian contacts. Each new indictment and each new revelation represented only a marginal new addition to the argument against Trump. Even if collectively the contacts paint a damaging portrait, the slow, steady pace of charges and reports worked more to harden hearts against Trump than to change minds.
And, make no mistake, impeachment requires changed minds. It requires changing Democratic minds about the political wisdom of attempting to remove Trump, and changing Republican minds about the wisdom of defending him. Politically, impeachment requires a bombshell. It requires a “moment.” It needs its own Nixon tapes or Lewinsky dress. Instead, America got a legal brief. And no one reads legal briefs.
I say this not to argue that this is the way things should be. I’m on record saying that Mueller’s findings should shock our conscience. Campaign officials and allies had repeated contacts with Russians or Russian operatives during the course of the campaign and lied about those contacts. Indeed, the report reveals a staggering, mind-numbing number of lies — to the point where no American can trust a single word that comes from this president or this White House absent compelling substantiating evidence.
But here is the way things are: There is no wave of public support for impeachment, and this hearing isn’t going to create one. In hyper-polarized times, I find myself agreeing with Nancy Pelosi. “Impeachment is so divisive to the country that unless there’s something so compelling and overwhelming and bipartisan, I don’t think we should go down that path,” Pelosi has said. And she’s right.
Or, if you prefer the words of Alexander Hamilton from Federalist No. 65, impeachment will “connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other.” It will “seldom fail to agitate the passions of the whole community.”
Moreover, it’s not as if Donald Trump doesn’t face a moment of reckoning. Unlike presidents Nixon and Clinton, who both faced their impeachment crises in their second terms, Trump faces the voters in 17 short months. The people are the ultimate instrument of American political accountability, and they will tell us soon enough whether they believe Trump is fit to continue as the leader of the free world.
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