The breathless reports that Mueller’s statements regarding his inability to prosecute pursuant to Justice Department policy contradict the attorney general’s suggestion that there were other factors for not finding grounds for prosecution (e.g., lack of evidence), likewise reveal a failure to read the report, which explained Mueller’s reasoning.
In an email, constitutional scholar Laurence H. Tribe told me, “Expressed in plain English, Mueller said: ‘READ MY REPORT. It says I COULDN’T indict a sitting president. If my office could’ve concluded he was innocent of criminal conduct, we would’ve said so. We couldn’t so we didn’t. Only Congress can hold this sitting president accountable. The ball is in Congress’s court now.’”
The assumption that Mueller will not testify is misplaced. He did not say that he would refuse to abide by a congressional subpoena, though he may stick to the script (i.e., the report) as he did on Wednesday. Given the necessity for verbally communicating the results to the public, this wouldn’t be a waste of time.
Tribe argued that “even if Mueller says no more to the House Judiciary and Intelligence Committees under oath than he said on TV today, the impact would be huge. More than 50 million pairs of eyes and ears will tune in.” Tribe adds, “He needs to testify despite his reluctance. As a private citizen, he has no legal basis to decline. Whether it’s worthwhile to press the point despite the delay that could entail is another matter.”
Moreover, Mueller’s stick-to-the-script testimony will limit Republicans’ ability to disrupt and badger the witness. He can remain above the fray.
As we have suggested, with or without Mueller, the House Judiciary Committee must educate the public through hearings that, in essence, put on TV what Rep. Justin Amash (R-Mich.) got down in a series of 280-character tweets. Here’s a suggested schedule (if Mueller testifies, he could be asked about each of the items below, with other witnesses and full evidence presented subsequently):
- Day 1: Russia interfered to help Trump. Trump and lots of his allies sought such help. This was a betrayal of our democracy.
- Day 2: How Trump, by inviting such help and then denying the inescapable conclusion that Russia helped him, undermined national security.
- Day 3: What is obstruction, why is it a big deal and what do you have to prove?
- Days 4-13: Each day is devoted to a different category of obstruction.
- Day 15: What is the Office of Legal Counsel memo and why did Mueller not indict?
- Day 16: What kinds of cases with far less evidence than this one have been prosecuted for obstruction.
- Day 17: Impeachment doesn’t require evidence (let alone conviction) of a crime. However, in this case, there are impeachable actions that are not crimes (e.g., inviting Russian interference) and actions that are crimes (See Days 4-13).
- Day 18: A highlight reel of the Bill Clinton impeachment, during which Republicans made impassioned speeches about the necessity of removing a president who has obstructed justice.
Former White House counsel Donald McGahn should be compelled to testify — with particular attention paid to Trump’s orders to fire Mueller. Other key witnesses (e.g., Hope Hicks, Mark Corallo, Corey Lewandowski) must be compelled to testify publicly under oath. However, in a pinch, prosecutors (starting with those who signed a letter attesting to the sufficiency of evidence to charge Trump if he were a private citizen) can present the Mueller findings and share their prosecutorial experience.
Committee counsel should conduct the questioning in 30-minute segments, with visual aids encouraged and Amash allowed to make the opening remarks on behalf of the committee’s Democratic majority. After each day of testimony, the committee should distribute a three-bullet-point summary of the day’s findings. This may seem rudimentary, but it is essential to the political process, which requires an informed citizenry.
Finally, separate hearings will be needed on Trump’s emoluments, allegations of financial wrongdoing and the campaign finance conspiracy for which Michael Cohen pleaded guilty.
Congress should get cracking. There’s plenty to do, with or without Mueller.