Mueller has said he and his team were strictly following relevant laws and Department of Justice rules—in particular an Office of Legal Counsel opinion preventing the indictment of a sitting president—but as Ratcliffe pointed out, no law or government guideline directs prosecutors to tell the public whether a subject has been exonerated or not.
“Can you give me an example other than Donald Trump where the Justice Department determined that an investigated person was not exonerated, because their innocence was not conclusively determined?” Ratcliffe asked Mueller.
“I cannot, but this is a unique situation,” Mueller replied before the congressman cut him off.
Ratcliffe was onto something. As Republicans have argued, under the U.S. legal system, the government’s burden is not to prove someone’s innocence of a crime, but to prove the person’s guilt. Prosecutors are under no obligation to declare a subject exonerated—either they charge the subject with a crime, or they don’t. Democrats made a similar complaint of another former FBI director, James Comey, when he held a 2016 press conference in which he declared that Hillary Clinton had been “extremely careless” in handling her government emails, even as he announced that the Democratic presidential nominee was not being charged with a crime.
If Mueller was really following federal rules and regulations, why did he go out of his way to state that Trump was “not exonerated”? Wasn’t that overstepping his bounds as an impartial prosecutor to suggest malfeasance on the part of a citizen—in this case, the president—who was not being formally accused of a crime?
Those would have been perfectly legitimate questions to ask Mueller, who may or may not have given candid answers to them. But Ratcliffe didn’t do that. Instead, he—like many fellow Republicans who followed him—used the remainder of his five minutes of questions to offer up his own opinions rather than to solicit Mueller’s. The congressman chose to criticize the former special counsel rather than interrogate him.
“You wrote 180 pages about decisions that weren’t reached, about potential crimes that weren’t charged,” Ratcliffe said. “Respectfully, by doing that you managed to violate every principle in the most sacred of traditions about prosecutors not offering extra prosecutorial analysis about potential crimes that aren’t charged.”
He finished his monologue with a damning accusation. “I agree with the chairman this morning when he said Donald Trump is not above the law. He’s not,” Ratcliffe said, referring to Democratic Chairman Jerrold Nadler. “But he damn sure shouldn’t be below the law, which is where your report puts him.”
Ratcliffe’s approach set a pattern for Republicans on the committee. Whereas Democrats largely used their time to essentially televise Mueller’s report while using him to confirm its key findings on camera, the GOP lawmakers repeatedly raised points of criticism with Mueller without actually forcing him to answer their chief complaints. They chose to make it personal, even emotional—in contrast, for example, to the prosecutorial style of questioning that Senator Kamala Harris of California used effectively in her confrontations with Judge (and now Justice) Brett Kavanaugh last year and Attorney General William Barr this spring.