The Return of the Mueller Report

As the Judiciary Committee drafts its articles of impeachment, it will have to decide how much of the special counsel’s findings it wants to include.

Robert Mueller lifts his right hand up while swearing in to testify in front of the House Judiciary Committee.
Pool / Reuters

Remember a man named Robert S. Mueller III?

For almost two years, the news revolved around him. There were Mueller T-shirts and a cultish kind of Muellermania on cable television. There were even Mueller votive candles.

More recently, though, the House of Representatives has proceeded with the president’s impeachment as though the man who investigated Russian electoral interference didn’t exist at all. Now it’s all Ukraine, all the time. The Russia investigation remains as a kind of background scrim, hovering over all the interviews and witness testimony. But when the House began its impeachment inquiry, House Intelligence Committee Chairman Adam Schiff was tasked not with investigating Russia but with looking into the fresh scandal alone. Ukraine, after all, was exciting public opinion, moving support toward impeachment in the polls, and uniting the Democratic caucus in favor of impeachment—something the Mueller probe had never done.

But this week, the locus of impeachment moves from Schiff to the House Judiciary Committee. And that committee’s chairman, Jerry Nadler, cannot simply ignore the material Mueller dug up. Schiff could do so because he had a specific mandate to develop a record on the president’s behavior with respect to the Ukraine affair. But once Nadler receives Schiff’s report on the Intelligence Committee’s investigation, he will have a different task: to decide what aspects of the president’s conduct across all domains warrant impeachment. That means he has to face a question that Schiff has been able to avoid: How much of the Mueller material does the House want to incorporate into the articles of impeachment against the president?

It’s not an easy question. Many Democrats who came to support impeachment because of the Ukraine matter did not support an impeachment inquiry based on the Mueller findings alone. This ambivalence reflects public opinion, which shifted hard in favor of an impeachment inquiry only as the Ukraine scandal broke. Politically cautious Democrats might therefore be leery of impeachment mission creep. While they signed up for an impeachment inquiry based on the national-security matters involving Ukraine, they might argue, they never signed up for one based on the misconduct described by Mueller. The president and the attorney general may have succeeded in convincing some of their constituents that this misconduct did not constitute criminal activity. The temptation to proceed based on Schiff’s findings alone will be significant, and it’s not clear at this stage that the votes to include Mueller’s findings are there, at least not on the House floor.

On the other hand, to draft articles of impeachment that leave out the president’s apparent criminality as described in Volume II of the Mueller report would ignore a very large elephant sitting in the House chamber. Volume II, which concerns Donald Trump’s efforts to hamstring the Mueller investigation and turn the Justice Department into a weapon with which to bludgeon his political opponents, contains an abundance of conduct that could have been drawn straight from the articles of impeachment prepared against Richard Nixon. Impeachment, of course, is a political process shaped in part by pragmatic considerations, but the House’s choice of what presidential behavior to include in articles of impeachment is also a judgment as to what behavior is sufficient to merit impeachment in the first place. Does the House Judiciary Committee really want to send the message that obstruction of justice by the president is, on some level, okay?

This would be particularly striking because, in dealing with Ukraine, the House will likely be impeaching Trump for—among other things—conduct he engaged in also with respect to Russia. Consider, for example, that Trump’s July 25 call with Ukrainian President Volodymyr Zelensky, which sits at the center of the impeachment process, took place the morning after Mueller testified before Congress about the results of his investigation.

When impeaching Trump for trying to gin up politically motivated investigations by Ukrainian law enforcement of Joe Biden, is the House really going to ignore that Trump repeatedly did the same to Hillary Clinton using American law enforcement? In impeaching him for obstructing congressional efforts to investigate the Ukraine matter, is the House really going to ignore his precisely parallel efforts to obstruct its efforts to investigate Mueller’s findings? To the extent it regards Trump’s efforts to intimidate witnesses as impeachable with respect to Ukraine, is it going to turn its eyes from the fact that the Mueller report is replete with accounts of similar behavior?

What’s more, the story of the Ukraine scandal is itself intertwined with the story of the Russia investigation. The two even share some of the same characters—such as Trump’s former campaign chair Paul Manafort, who left the campaign in August 2016 after news reports surfaced of illicit payments rendered to him by ousted Ukrainian President Viktor Yanukovych, and who was later found guilty of tax and bank fraud. Rudy Giuliani’s efforts in Ukraine to dig up information helpful to Trump have focused, in part, on the groundless idea that the ledger documenting the Manafort payments had been engineered or released specifically to damage the Trump campaign. And the conspiracy theory mentioned by Trump in his July 25 phone call with Zelensky—that a computer server belonging to the Democratic National Committee somehow resides in Ukraine, thus proving that investigators were not really able to examine the committee’s hacking and prove Russia’s responsibility—is aimed at absolving Russia for its role in interfering with the 2016 election.

So while the Russia story has taken a back seat in recent weeks as Schiff and the Intelligence Committee have worked to untangle the narrative of just what happened between the White House and the Ukrainian government, the segregation is a bit artificial and probably unsustainable once the House answers the question of what it should include in impeachment articles.

Today, the Intelligence Committee is set to begin the process of formally sharing its findings with the Judiciary Committee, and the latter committee will soon take the lead in the impeachment process. And while Schiff has focused on Ukraine, the Judiciary Committee has already done some of the legwork digging into the Mueller report: It’s currently suing for access to the redacted grand-jury material in the report, and waging a legal battle to secure the testimony of former White House Counsel Don McGahn regarding the president’s conduct as described by Mueller. Recently, House General Counsel Douglas Letter confirmed in federal court that the House is examining whether Trump may have lied in his answers to Mueller as part of the impeachment investigation. Suffice it to say that, from the Judiciary Committee’s point of view, Russia has not been forgotten.

So what does Nadler do now? It’s reasonable to expect that Democrats will neither leave the Mueller material out of the articles entirely nor make them central. That is, in deference to the central role the Ukraine scandal has played in driving impeachment, Ukraine will likely take center stage, but the Mueller material will probably show up in a supporting capacity.

In most areas, incorporating the Mueller material in this subordinate capacity would work reasonably well. An impeachment article focused on abuse of power could, after all, describe in a single article the president’s efforts to shut down investigations of himself and spur investigations of his opponents, both by U.S. law enforcement and in Ukraine. An article focused on obstruction of Congress could cover obstruction of Congress in both investigative matters.

This approach, however, likely will not work with respect to obstruction of justice, where the evidence in the Mueller report is dramatically stronger than anything that has emerged with respect to Ukraine. If Nadler decides to include an obstruction of justice article, the Mueller material will likely dominate it—and this may prompt Democrats who are not comfortable with impeaching over the Russia scandal to vote against this article.

Another possibility would be to organize articles of impeachment by country—Ukraine-related articles and Russia-related articles—rather than by presidential behavior. This approach would have the advantage of making it easier to segregate Mueller material from Ukraine material for those Democrats discomfited by the Mueller report. It has the disadvantage of being less in keeping with congressional history and practice with respect to impeachment, and of likely making the story told by those articles muddier.

In the end, the role that the Mueller material should play is a question of the goals of Nadler, Nancy Pelosi, and the Democratic caucus at large in passing impeachment articles. Do they want to make Trump answer in a Senate trial for a broad range of his misconduct, or do they prefer to make him focus on a discrete episode that is particularly egregious? Do they seek to make a case that his conduct is pervasively inconsistent with the office, or instead to narrowly tell a single story of the man’s unfitness for the presidency? The more they want to set the Ukraine scandal in the larger context of Trump’s presidency, the more they will need the help of the long-forgotten Robert Mueller.