Law & the Courts

With Collusion Collapse, Public Loses Interest in Mueller Theatrics

Special Counsel Robert Mueller departs after delivering a statement on his investigation at the Justice Department in Washington, D.C., May 29, 2019. (Jim Bourg/Reuters)
Democrats are at the point where continuing to press the Mueller probe hurts them more than it hurts the president.

Dear Sir, The public does not care.

If the Trump Justice Department were to write a letter in response to House Intelligence Committee chairman Adam Schiff’s Tuesday night tirade, that’s what it would say.

Well, okay, not exactly. I’m sure there’d be the obligatory “with due respect” throat clearing and whatever else decorum demands when camouflaging a flip of the middle finger. Make no mistake, though: The bird has been flipped.

The night before former special counsel Robert Mueller’s much anticipated (and certain to be disappointing) appearance before two congressional committees, Chairman Schiff fired off a letter to protest limitations the Justice Department, at Mueller’s request, has imposed on his testimony.

In essence, DOJ has ordered Mueller not to provide testimony outside the four corners of his report. This suits Mueller just fine since he does not want to testify at all. He made that clear in his May 29 press statement, attempting to foreclose a possible subpoena by insisting that he would have nothing to add to the two-volume, 448-page tome.

Further, he gave Democrats what, from their perspective, is the best spin that could be put on the obstruction aspect of his probe: He had not “exonerated” the president, even though he neither found crimes, nor even considered whether crimes had occurred — the prosecutor’s peculiar interpretation of Justice Department guidance that forbids indictment of a sitting president.

He was trying to tell them: This is as good as it gets. I am not going to say I would have indicted him if not for the guidance.

But Democrats cannot leave well enough alone. They hope against hope that Mueller will break down — that Schiff, a former prosecutor, will have a Perry Mason moment, in which Mueller throws up his hands and confesses that, yes, if he could, he would throw the book at Trump.

But it’s not going to happen. Mueller cannot give Democrats what they want because doing so would contradict his report. He’s not going to do that. He wanted a Justice Department directive that he not address matters outside the report so he could try to persuade Democrats not to bother asking him to explain his reasoning. Of course, they are going to ask him anyway, but he’s not going to tell them what they want to hear.

In ordering Mueller to stick to the report, Justice relied on its usual rationales for denying information to Congress. This is a stew of privileges claimed to shield investigations, the deliberative process over investigative judgments, communications within the executive branch, communications with lawyers, and so on.

Of course, Congress does not need to accept the executive’s privilege claims. The Justice Department is a creature of statute. It depends on Congress for its existence, funding, and lawful authority. Congress has the power to conduct oversight. If the administration does not cooperate, the Constitution gives lawmakers an array of weapons to attempt to induce compliance — control over the executive’s budget, public hearings to embarrass executive officials, contempt, censure, even impeachment.

That is what Schiff’s letter to Mueller is meant to threaten. The chairman is making it clear that Congress is not bound by the executive’s claims of privilege.

He has a problem, though. Disputes between the political branches are, well, political. Congress’s arsenal of powers to check executive departments is political. And to be a meaningful weapon, political power needs public support.

The public was very interested in Mueller’s investigation because, for over two years, Democrats and their media collaborators assured the country that the president was complicit in a corrupt conspiracy with the Kremlin to undermine the 2016 campaign, hack Democratic email accounts, and steal the election.

Once Mueller concluded that there was no “collusion” scheme, however, public interest ebbed. After finally being told that the narrative of a traitorous president in a corrupt pact with a hostile foreign power was just a political narrative, Americans were not inclined to hop aboard the Democrats’ new and improved obstruction narrative.

This is not to say the conduct outlined in the obstruction volume of Mueller’s report is admirable. Some of it is disturbing. It is understandable that Democrats would want the public to focus on it. But it does not rise to the level of a prosecutable obstruction case and it did not, in any event, present to the slightest impediment to Mueller’s completion of the investigation — with which the president cooperated extensively, for all his ranting and raving about a “witch hunt.”

Equivocal proof of obstruction in an investigation that was not actually impeded, into a crime that did not actually happen, is not going to grab the public’s interest – not after the collusion let down, not after Democrats and the media have convinced the country that their rabid opposition to Trump is transparently political, and not when the country is dealing with other more pressing matters and the 2020 election is looming.

America has moved on. Democrats are at the point where continuing to press the Mueller probe hurts them more than it hurts the president.

So Chairman Schiff and Democrats on his Intelligence Committee, and on chairman Jerry Nadler’s Judiciary Committee, which will get the first shot at Mueller today, can rattle their sabers and threaten all sorts of sanctions. But they are not going to hold Mueller in contempt, much less impeach the president. They don’t have the public support to follow through, and they know it.

Robert Mueller will stick to his report today. Democrats — and Republicans, who have lots of questions about alleged investigative abuses — will not like being stonewalled. But stonewalled they will be.

We’re going through the motions. Loudly, sure, but still just going through the motions.

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