The Tragedy of the Congress

There’s basic agreement between Mueller and Democrats in Congress on the facts of what Trump did, but no one wants to be the one who does something about it.

Chip Somodevilla / Pool via Reuters

Late in Robert Mueller’s testimony before the House Judiciary Committee this morning, there was a head-scratching exchange between the former special counsel and Representative Veronica Escobar, a Texas Democrat, who tried to get Mueller to answer a seemingly simple question about something he had said.

“Director Mueller, at your May 29, 2019, press conference you explained that, quote, ‘the opinion says that the Constitution requires a process other than the criminal-justice system to formally accuse a sitting president of wrongdoing,’ end quote,” Escobar said. “That process other than the criminal-justice system for accusing a president of wrongdoing, is that impeachment?”

Mueller dodged: “I’m not going to comment on that.”

Escobar forged on: “In your report, you also wrote that you did not want to, quote, ‘potentially preempt constitutional processes for addressing presidential misconduct,’ end quote. For the nonlawyers in the room, what did you mean by ‘potentially preempt constitutional processes’?”

“I’m not going to try to explain that,” Mueller dodged again.

“That actually is coming from page 1 of Volume 2 in the footnote is the reference to this,” Escobar said. “What are those constitutional processes?”

This time, Mueller deadpanned an answer: “I think I heard you mention at least one.”

“Impeachment, correct?” she pressed. But Mueller had given as much as he was going to give, and he reverted to form: “I’m not going to comment.”

The exchange was absurd. By every indication, Escobar correctly intuited that Mueller was referring to impeachment. Mueller knew that Escobar, and most other informed listeners, knew this. As a matter of constitutional law, it’s not even controversial. Yet in the interest of trying to remain apolitical in the midst of an entirely political event, the former FBI director tied himself in knots trying to avoid acknowledging it, except in the most elliptical of ways: I think I heard you mention at least one.

Beyond the tortured dialogue, this exchange illustrates a broader standoff in the drive to hold President Donald Trump accountable. There’s basic agreement between Mueller and Democrats in Congress on the facts of what Trump did, but no one wants to be the person to do something about it.

Mueller believes that Justice Department rules mean he cannot indict a president who committed a crime, that Congress must act, and—though he won’t say so directly—that impeachment is the tool Congress has.

House Democrats, however, are desperate for Mueller to give them cover to forge ahead on an impeachment inquiry by telling them in his own words that Trump committed a crime. Although impeachment places the House in a position akin to a grand jury, investigating and then charging a suspect, Democrats seem to want Mueller, as a prosecutor, to forward charges to them. This leads them to plead with him to say they should act directly, as Escobar did, just as Mueller’s convictions lead him to stubbornly avoid doing so.

This is apparent on obstruction of justice, which is where the case against Trump may be strongest and where there’s the clearest agreement between Mueller and Democrats. As I wrote this morning, the Democrats Hakeem Jeffries and Ted Lieu walked Mueller through the three-prong test for obstruction of justice, showing how his report clearly found that Trump met all three prongs in some cases. Mueller, of course, tried to avoid stating the obvious conclusion: “The only thing I want to add is, going through the elements with you does not mean I subscribe to the—what you’re trying to prove through those elements.”

But why do the Democrats need Mueller to do this anyway? They could just connect the dots themselves and conclude that Trump obstructed justice—in fact, some of them clearly already have. But the House leadership remains unwilling to follow that conclusion to the logical action.

Of course, Mueller may be wrong about whether Trump obstructed justice. Perhaps exculpatory evidence exists that hasn’t emerged yet. That’s the point of the American adversarial justice system: A prosecutor, whether a local district attorney, Mueller, or the House of Representatives, brings an accusation, and a jury, whether 12 local residents, a federal jury or judge, or the Senate, hears and adjudicates it.

Mueller wrote in his report that making a prosecutorial conclusion about whether Trump had likely broken the law would be unfair to him because Trump would have no opportunity to answer that conclusion.

“Fairness concerns counseled against potentially reaching that judgment when no charges can be brought,” the report states. “The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name.”

Yet in practice, things have ended up unfolding in precisely the manner Mueller tried to prevent. Even though the report doesn’t state that Trump obstructed justice, it clearly lays out how Trump’s actions met all three elements of obstruction. Though the president continues to claim, falsely, that he was totally exonerated, this means Trump effectively stands accused. And with Mueller saying he can’t bring charges, Attorney General William Barr concluding that no charges are merited, and Dems waffling over impeachment, there is no opportunity for the public to have an actual hearing into whether Trump truly did obstruct justice. We have tantalizing evidence but are denied any conclusion.

The standoff between Mueller and the Democrats is reminiscent of the Republican presidential primary in late 2015 and 2016, and once again, Trump is the object of difficulty. As it became clear that the Trump candidacy was not going away, there was a broad consensus among his rivals for the nomination and the leaders of the party that he needed to be stopped. But no one was quite sure how to do it, and no one was willing to be the person to act—after all, Trump was popular with Republican voters, making a frontal assault on him dangerous. Moreover, he had shown himself to be very effective at ethering fellow Republicans, and no one wanted his fury focused on them. By the time the field was finally ready to take swings at Trump, it was too late.

The effect of that hesitation was that Trump won the Republican nomination and ultimately the presidency. The effect of the buck-passing between Mueller and House Democrats is that Trump seems to be able to commit crimes or likely crimes with impunity as long as he remains in office.