Analysis: Mueller Statement Fuels Impeachment Fever, Underscores Why He Must Testify

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Posted: May 30, 2019 10:01 AM
Analysis: Mueller Statement Fuels Impeachment Fever, Underscores Why He Must Testify

Special Counsel Robert Mueller broke his silence yesterday morning, delivering a short statement about the completion of his high-profile investigation into Russia's 2016 electoral interference and related matters, and asserting that he has no intention of making any further public comment in any forum -- including before Congress.  My takeaways:

(1) On the substance of the Russia probe, Mueller offered nothing new.  Everything he mentioned simply underscored or reiterated the content of his report, which he said 'speaks for itself' and represents his final testimony.  He did, however, choose to highlight and emphasize certain elements of the document over others.  For instance, he went out of his way to present a very narrow view of his team's verdict on the 'collusion' issue, framing it as an absence of sufficient evidence to prove a criminal conspiracy.  Many Trump critics seized on this verbiage as an indication that Mueller was knocking down the president's "no collusion" talking point, but I'd note that the report itself also states that investigators found no actionable evidence of conspiracy or coordination, a much broader term that Mueller curiously omitted from his brief public remarks.  The Special Counsel's work product does speak for itself on this point, in my view, and it vindicates Trump on the question of collusion -- a colloquial term that encompasses conspiracy and coordination.

(2) Rather than offering clarity on why Mueller chose not to recommend for or against charges on the obstruction piece of the investigation, the Special Counsel's comments only caused more confusion and controversy.  Attorney General William Barr has stated publicly, and testified under oath, that Mueller repeatedly and emphatically rejected the notion that Mueller would have recommended charges if not for the (complex, disputed, and not necessarily binding) guidance from the DOJ's Office of Legal Counsel (OLC) that a sitting president cannot be indicted:

"Deputy Attorney General Rosenstein and I met with him, along with Ed o'Callaghan, who is the principal associate deputy, on March 5th. We specifically asked him about the OLC opinion and whether or not he was taking a position that he would have found a crime but for the existence of the OLC opinion. And he made it very clear several times that that was not his position. He was not saying that but for the OLC opinion, he would have found a crime. He made it clear that he had not made the determination that there was a crime."

Mueller's Wednesday statement seemed to assert precisely the opposite.  He said that charges against Trump were never an option due to that OLC opinion, which he evidently viewed as binding (Allahpundit's commentary on this is worthwhile).  The resulting contradiction between Barr and Mueller is therefore glaring and seemingly irreconcilable.  Did the meeting and interaction Barr described occur as Barr has described it?  This is more than a he said/he said because there were multiple people in the room, including former Deputy Attorney General Rod Rosenstein, who has not challenged Barr's recollection of events.  Was Mueller effectively calling Barr, and anyone who might corroborate Barr's memory, a liar on this point?  Perhaps, but Mueller also went out of his way to praise Barr's decision to release virtually the entire un-redacted report, explicitly endorsing Barr's "good faith" in discharging his duties during this saga.  That's not the way you'd expect him to describe someone whom he believes to have deliberately mischaracterized his work, inaccurately spun the report's legal bottom lines, or lied flagrantly about a crucial component of prosecutorial decisions on potential obstruction of justice.

(3) Because of this massive disconnect and its possible implications, I'm not sure how Mueller can avoid testifying before Congress, regardless of his personal wishes.  Subpoenas are almost certainly coming.  He indicated that any such testimony would be fruitless because he'd simply refer interlocutors back to his written report, but that wouldn't be applicable if and when he's asked about the apparent canyon between himself and Barr regarding the centrality of OLC's guidance on indicting a sitting president to the choices he made.  Barr has shared his version of what occurred under penalty of perjury, and other people who were present seem to back him up.  On this crucial issue, the Congress and the American people deserve a fuller explanation.  As an aside, whether Mueller truly was completely handcuffed by the 2000 OLC memo, as he has now suggested, is an issue to be hashed out by legal experts.  Perhaps he was.  Or perhaps he exploited and exaggerated it as an ironclad rule as a means of avoiding making a thorny and politically fraught call.

(4) Though he didn't say so explicitly, Mueller heavily implied that he did everything within his power to bring the facts to light, and was quasi-formally handing the ball off to Congress to determine how and if to sanction the president.  Even if he didn't intend his statement to look like a so-called 'impeachment referral,' that's exactly how it was perceived by many people, including numerous Democrats calling for those proceedings to begin immediately.  That judgment is, indeed, up to the House of Representatives now.  Thanks to Mueller's efforts, we now know much about the president's actions.  Whether those actions amounted to conduct worthy of impeachment is a judgment call; in my opinion, while some of what was revealed reflects very poorly on the occupant of the Oval Office, it does not rise to the level of serious corruption and criminality that justifies removal from office, on the merits.

(5) Politically speaking, Speaker Nancy Pelosi's already-tenuous fence-sitting posture on impeachment just became even less sustainable.  Between Mueller's statement and Rep. Justin Amash's break with the GOP on this subject, pro-impeachment forces within Resistance circles and the Democratic Party have been boosted with newfound passion and momentum.  Numerous presidential candidates clearly see where the base is on this issue and are acting accordingly.  A majority of self-identified Democrats already favored impeachment, but what about public opinion more broadly?  Herein lies Pelosi's dilemma:


Voters' appetite for impeachment has always been underwater, and has diminished significantly since the release of Mueller's report.  Unless there's a major double digit swing among the electorate on this question as a result of Mueller reiterating several points from the document he produced weeks ago, Pelosi's calculation about the political risk of touching off impeachment proceedings will remain unchanged.  She understands that an unpopular gambit to toss a president out of office would be quite risky, could redound to the incumbent's benefit (in terms of public sentiment, fundraising, etc), and could suck up huge quantities of political oxygen heading into a key election cycle.  But her ability to hold the line and call off the dogs was undoubtedly eroded by Mueller's comments.  I'll leave you with the Speaker's baby-splitting, impeachment-silent statement on his surprise performance:


It's not going to get any easier for her moving forward.