In this world, how would Mueller’s testimony on Wednesday before the House Judiciary Committee have gone?
Given the interest Democrats have in painting Trump in the worst possible light and the interest Republicans have in painting him in the best possible light, there’s no mystery. Republicans would have been respectful and welcoming to Mueller, and might read portions of his report back to him and ask him to confirm that they were accurate. Those passages would demonstrate to all listening that Trump was indeed innocent.
Democrats, on the other hand, would be hostile. They would attack Mueller’s methods, question his integrity, accuse him of ignoring important facts and generally act as though the investigation that had so totally exonerated Trump was nothing but a sham.
Yet that’s exactly the opposite of what happened. In fact, it was Democrats who read parts of the report to Mueller and asked him to confirm that they were accurate. And it was Republicans who ranted and raved, accused Mueller of bias and tossed around bizarre conspiracy theories. It’s almost as though Republicans knew that the investigation did not in fact produce a “Complete and Total EXONERATION" but rather a damning indictment of the president.
Which, of course, it was. I want to highlight two lines of questioning, one from a Republican and one from a Democrat, that made clear that were it not for Justice Department policy stating that a sitting president can’t be indicted, Trump would likely be charged with crimes.
The first was from Republican Rep. Ken Buck of Colorado, who apparently unintentionally got Mueller very close to saying that there was adequate evidence to convict Trump of obstruction of justice. Buck asked whether Trump could be convicted on an obstruction charge, and Mueller responded that he couldn’t make that judgment because of Justice Department policy. Here’s what happened next:
BUCK: Let me just stop. You made the decision on the Russian interference [conspiracy]. You couldn’t have indicted the president on that. And you made the decision on that. But when it came to obstruction, you threw a bunch of stuff up against the wall to see what would stick, and that is fundamentally unfair.MUELLER: I would not agree to that characterization at all. What we did is provide to the attorney general in the form of a confidential memorandum our understanding of the case, those cases that were brought, those cases that were declined, that one case where the president cannot be charged with a crime.BUCK: Okay, but the … could you charge the president with a crime after he left office?MUELLER: Yes.BUCK: You believe that he committed … you could charge the president of the United States with obstruction of justice after he left office?MUELLER: Yes.
That is what soccer fans call an “own goal.” What Buck inadvertently argued, with Mueller’s help, was that while the evidence of Trump’s personal cooperation with Russia was insufficient to sustain a conspiracy charge, the evidence may well have been sufficient to sustain an obstruction charge, and it may have only been Trump’s current position that is saving him from an indictment.
Mueller himself will not state that conclusion, and it seems that when he answered that the president could be charged with obstruction after leaving office he was speaking in a general, hypothetical sense. But the fact that Buck had just pointed to the difference between potential conspiracy charges on one hand, which Mueller declined to make for Trump or others, and obstruction of justice on the other, which Mueller laid out in exhaustive detail, can’t help but raise the question in not just a theoretical but a very concrete way.
Which brings us to the next exchange, between Mueller and Democratic Rep. Ted Lieu of California. You can watch it here.
Lieu took one episode — when Trump instructed his former campaign manager Corey Lewandowski to tell Attorney General Jeff Sessions on the president’s behalf to “un-recuse” himself from the Russia investigation, seize control of it and then direct it away from the 2016 campaign entirely to focus only on the future — and showed how it met all three elements necessary to establish obstruction of justice.
The transcript is rather long, so we’ll condense it. Lieu began by getting Mueller’s agreement that this action satisfied the first element, an obstructive act:
LIEU: You wrote there on Page 97, “Sessions was being instructed to tell the special counsel to end the existing investigation into the president and his campaign.” That’s in the report, correct?MUELLER: Correct.LIEU: That would be evidence of an obstructive act, because it would naturally obstruct the investigation, correct?MUELLER: Correct.
Lieu then established that the second element of obstruction — a connection to an official proceeding — had also been satisfied, because the grand jury convened by the special counsel was in operation at the time, to which Mueller agreed. Then they moved to the third element of corruption of justice, corrupt intent:
LIEU: You wrote, “Substantial evidence indicates that the President’s effort to have Sessions limit the scope of the Special Counsel’s investigation to future election interference was intended to prevent further investigative scrutiny of the President’s and his campaign’s conduct.” That’s in the report, correct?MUELLER: That is in the report. …LIEU: … Now we’ve heard that the president ordered Corey Lewandowski to tell Jeff Sessions to limit your investigation so that he — you — stop investigating the president. I believe a reasonable person looking at these facts could conclude that all three elements of the crime of obstruction of justice have been met. And I’d like to ask you, the reason again that you did not indict Donald Trump is because of OLC opinion stating that you cannot indict a sitting president, correct?MUELLER: That is correct.
When he appeared before the Intelligence Committee in the afternoon, Mueller clarified this exchange, noting that it was not solely because of the Office of Legal Counsel opinion that he did not charge Trump with a crime. Instead, he said, “we did not reach a determination as to whether the president committed a crime.”
But Buck was right: Mueller concluded that he didn’t have enough evidence for a conspiracy charge for Trump, his family or his associates, so he said so. He said nothing of the sort on the question of obstruction of justice.
And it’s pretty clear what that means.