This is an argument Trump’s allies have made for weeks. “Case closed,” Senate Judiciary Committee Chairman Lindsey O. Graham (R-S.C.) said nine days ago when asked about whether he would call former White House counsel Donald McGahn to testify. “It’s over, folks,” White House counselor Kellyanne Conway said immediately after the Mueller report was released. The White House even declared “case closed” before we saw the report. “I don’t think it is going to be damaging,” press secretary Sarah Sanders said of the report, after Attorney General William P. Barr’s letter summarized its top conclusions. “We consider this to be case closed.”
That early declaration should show you just how much of a tactic this is. There are a whole host of reasons this claim is problematic — both procedurally and rhetorically.
The main reason is that Mueller expressly left this as a matter for others to decide. He decided not to render a traditional opinion on whether to accuse Trump of obstruction of justice, citing existing Justice Department policy against indicting a sitting president. He also said he would have exonerated Trump on obstruction if he could, but added explicitly that the report “does not exonerate him.”
And while doing so, Mueller noted that impeachment is an alternative method for holding a president accountable — and also that a president isn’t immune from criminal prosecution after leaving office. “A possible remedy through impeachment for abuses of power would not substitute for potential criminal liability after a President leaves office,” Mueller wrote in a footnote. He explicitly declined to clear Trump and noted potential future actions that could be taken.
The second reason is that there are plenty of unresolved questions. Even if you accept Graham’s argument that McGahn’s 30 hours of cooperation are contained in the report and that his testimony would be redundant, there are the 14 cases Mueller referred out, some of which are ongoing. There is the Southern District of New York’s investigation, which has implicated Trump in Michael Cohen’s criminal campaign finance violations. There are the questions about Trump’s finances and his still-unreleased tax returns, which Mueller didn’t deal with in his report. The New York Times reported that Trump and his siblings obtained their father’s wealth through, in some cases, “outright fraud.”
And there are of course Mueller’s newly revealed concerns about Barr’s handling of his report. As I wrote Monday, there are some key unresolved questions on which Mueller could provide some important clarity, even if he is circumspect in testifying, as many expect he would be. The last word from Mueller right now is that he believes Barr fed misinformation about his report and that the public was misunderstanding it. Perhaps he’s satisfied now that the full report is out and people can draw their own conclusions, but we don’t know that to be the case.
And just from a strictly rhetorical perspective, the “case closed” claim is pretty discordant. Trump spent much of his 2016 fomenting “Lock her up!” chants about Hillary Clinton, despite the FBI having announced explicitly that it wouldn’t charge her with a crime. And in that case, it was because of the evidence — not some Justice Department policy saying they couldn’t indict Clinton.
The Mueller report also revealed that Trump, after taking office, tried at least three times to get the Justice Department to prosecute Clinton. So Trump wanted the Justice Department to prosecute someone whom it had explicitly declined to, but his White House and allies say a report that explicitly does not “exonerate” him is “case closed.”
The argument from there, I suppose, would be that Mueller may not have cleared Trump, but that Barr and Deputy Attorney General Rod J. Rosenstein then concluded they wouldn’t accuse Trump. Even if you set aside that Trump recently appointed Barr, and Barr’s controversial handling of the matter, he was confirmed by the Senate as attorney general and does have authority over the probe. He’s welcome to make what conclusion he wanted to.
But even in his testimony last week, Barr made a point to emphasize that he hadn’t completely cleared Trump.
“No, I didn’t exonerate,” Barr said. “I said that we did not believe that there was sufficient evidence to establish an obstruction, an offense which is the job of the Justice Department, and the job of the Justice Department is now over.”
Wait, you might be saying, so Barr said it was case closed? Not exactly. Here’s what came next.
“The report is now in the hands of the American people,” he said. “Everyone can decide for themselves. There’s an election in 18 months. That’s a very democratic process, but we’re out of it.”
Congress is part of that Democratic process, as the representatives of the American people. Congress also holds in its power the only remedy for holding a president accountable while he or she is in office. Exactly what course it should take is up for it and the people who elect it to decide. McConnell and the White House have decided it’s time to move on, and from a political standpoint that’s not surprising.
But there are plenty of unresolved questions here, and at last notice one very key player sure didn’t seem to think this was “case closed”: Robert S. Mueller III.