If former Special Counsel Robert Mueller’s testimony will have any value tomorrow, it should be to guide Congress to satisfy its constitutionally distinct role. Mueller, a former FBI director, has always displayed a “just the facts approach.” He already has contradicted Attorney General William Barr’s sycophantic characterization of the results of the investigation by firmly stating that if his staff had concluded that the president was vindicated, he would have said so; he didn’t. But that stance leaves some important questions unasked, and some potentially valuable answers unknown. It’s time for Congress to ask, and for Mueller to answer, those questions.
These questions are not abstract to me. I’m a former federal line prosecutor, and from 1989 to 1993, I served in the administration of President George H. W. Bush as assistant attorney general for the Civil Division of the Department of Justice. Thereafter, I was the acting attorney general during the early months of the Clinton administration. Representing the United States at all levels of the federal courts, I have, at various times over 50 years, litigated a range of cases involving important public issues, and have more than a little knowledge about what it takes to support an indictment against corrupt public officials and more typical federal criminal defendants. So when I read the Mueller report, I bring a prosecutor’s eye to the work, and as a former colleague of Robert Mueller, I have confidence in his integrity and judgment.
But it’s also why I’m painfully aware that, so far, both Congress and the press have responded to the report by indulging in pettiness and sensationalism, instead of fulfilling the roles that the Framers of the Constitution envisioned. Tomorrow, they will have the chance, instead, to enable Americans and their representatives to make well-informed political choices, and to ensure that this remains a free country governed by the rule of law, not by bombast or political partisanship.
The Mueller report runs 448 pages, and the average person has had little opportunity to read and study it in depth. Congress can satisfy its responsibility to ensure that the American voting public has access to compelling facts on the important national issues that the Mueller report raises, as it logically pursues the legislative avenues that the Framers laid down for it in the Constitution. The press also has a role in separating fact from fiction, and evidence from opinion. And there is much that the press can do with respect to reporting the facts underlying the Mueller findings that hasn’t been done yet. The signal-to-noise ratio of the reporting to date has been less than optimal. Here is the chance to improve that.
I’m not naive. At least some members of Congress will instead vigorously, but imprudently in constitutional terms, view the Mueller hearing as an extension of the presidential campaign or a chance to gain partisan advantage. Too often, both parties in Congress act as if they are in a parliament, with the president treated like a prime minister to be defended or toppled. But our Congress was intended to act as an independent branch, exercising the checks and balances that distinguish our system from the parliamentary government against which the Founders rebelled.
I also expect some media reports to reflect the capital’s fixation on defining political winners and losers in a manner that too often buries substance with sound bites. We’re certain to hear noisy charges and countercharges about “witch hunts” and intelligence-community conspiracies from the right, and presidential falsehoods and ignorance from the left. But if Congress and the press do their jobs, the public may now get the answers it deserves.
The report itself lays out a series of issues that clearly require additional examination. Volume I of the report, for example, focuses on whether the president and his campaign staff coordinated with Russian agents. This has often been framed as a question of “collusion.” Collusion is not a term employed in federal criminal law, and the fixation on it has been a diversion. Although Mueller’s team did not find prosecutable evidence of conspiracy, it did find substantial evidence of a sort of conscious parallelism that is deeply concerning and that likely will necessitate a legislative remedy.
Volume I strongly suggests that while the Trump team might not have conspired with the Russians, it didn’t have to. Fully aware of the fact that agents of an adverse foreign government were engaging in computer hacking and creating and disseminating false information through social media and other outlets against their opposing candidate, the Trump campaign staff did nothing. Indeed, these sunshine patriots welcomed the help that they were getting. Instead of calling the FBI or raising the matter in connection with intelligence briefings, they contacted persons who claimed to be in touch with WikiLeaks in order to better anticipate the next tranche of information that would be deployed.
Despite the president’s protestations, few now take issue with the collective judgment of the nation’s intelligence community that “the Russian government interfered in the 2016 presidential election in sweeping and systematic fashion.” But that conclusion—and the evidence that, through willful inaction, the Trump campaign aided not just his political opponent but our country’s adversary—is not the end of it.
In their most recent analyses, the intelligence community and the director of national intelligence have noted that cybersecurity has surpassed terrorism in the hierarchy of threats to national security. Given the clear documentation of nation-state-sponsored infiltration of our critical infrastructure and of public and private databases, it is no exaggeration to say that we are fighting a new kind of war. Russia is among our chief adversaries in that conflict, but it is not the only one. Moscow’s hostile activity directed at the mechanisms of voting is an important but solvable matter. The more vexing one, as illustrated in Volume I of the Mueller report, is the effort of foreign agents to control American public opinion. Congress can act to counter that threat, using Mueller’s testimony to consider how best to amend our national-security laws or our election laws to require any campaign to report contacts with agents of a foreign government.
In Volume II of the Mueller report, the special counsel detailed at least 10 distinct instances that could form the basis for the crime of obstruction of justice. Of these 10 instances, at least four appear to display the three essential elements required to sustain an obstruction conviction: an obstructive act, nexus of the act to a proceeding, and corrupt intent. Among the arguably obstructive acts are the president’s ordering the White House counsel to remove Mueller on more than one occasion, and then asking him to falsify statements when it came time to deny that the orders had taken place; trying to curtail the investigation by directing the attorney general to “unrecuse” himself and limit its scope; and, by suggesting potential rewards and retribution, attempting to dissuade various witnesses from providing damaging testimony. That the president ordered subordinates to lie, and was repeatedly untruthful himself, is the most disturbing element of these events.
These elements of the report are already on the record, but the Mueller hearing presents Congress and the press alike with the chance to better inform the public of the details. But Congress has a second task in these hearings, too. It can provide answers about the biggest silence in the report.
The special counsel’s office concluded that it was constrained by the opinion of the Justice Department’s Office of Legal Counsel and related Department of Justice policy, which precludes the indictment of a sitting president. That constraint caused Mueller to decline making any recommendation as to whether the president should be prosecuted for obstruction of justice. Barr, echoing the president, then criticized Mueller for not reporting that the evidence vindicated the president. The attorney general, who has never been a prosecutor himself, also asserted that he and his deputy had concluded that there was no prosecutable offense, and that the Mueller report should be read to support that conclusion. Mueller forcefully responded that “if we had had confidence … that the President clearly did not commit obstruction of justice, we would so state … However, we are unable to reach that judgment.”
The implications of that statement are obvious, but insufficient. More than 1,000 former federal prosecutors—that is, men and women who, unlike Barr, have actually tried and convicted federal criminal defendants—have publicly stated that the quality and quantity of the evidence of obstruction would have been legally sufficient to support an indictment. What does Mueller think? He has been an assistant United States attorney who has prosecuted serious crimes. He has been a distinguished director of the FBI. Did he and his staff conclude that if the person under investigation were someone other than the president, an indictment would have been in order? And if there were no OLC opinion and DOJ policy edict precluding the indictment of a sitting president, would he have sought the indictment of President Donald Trump?
Congress needs to know the answers to these questions, not just with hypothetical reference to the impeachment power of the House of Representatives but also with respect to its oversight of the executive and possible amendments to criminal law. The press should be able to report objectively and to comment intelligently upon the answers to these questions. This is a case where the American public is fully able to handle the truth. If Congress and the press act scrupulously, Mueller’s testimony will give it the chance to do so.
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