Impeachment Hopes Damaged by Weak Mueller Testimony

For almost two years, Democrats pinned their hopes for building an impeachment case against President Donald Trump on the results of the probe led by Special Counsel Robert Mueller. But those hopes have been repeatedly frustrated and reduced by the inability of Mueller’s investigation to generate hard evidence that Trump had committed “high crimes and misdemeanors,” as specified by the Constitution, which were serious enough to warrant his removal from office.

Last week, those hopes finally died before a national television audience, as a faltering Mueller struggled to answer direct questions about the findings of his investigation posed by members of two congressional committees over a period of seven hours. Democrats had carefully prepared the hearings to dramatize their case for impeaching Trump. The networks, which anticipated political bombshells from Mueller, cooperated by providing wall-to-wall coverage. Instead, Mueller’s halting responses proved painful to watch, and were an embarrassment to the Democrats who had forced him to appear against his will.

One of the country’s leading liberal law experts, Laurence Tribe, who believes that Trump should be impeached, called Mueller’s congressional testimony “a disaster. Far from breathing life into his report, the tired Robert Mueller sucked the life out of it.”

Washington Post reporter Dan Balz wrote that Democrats had hoped that Mueller’s testimony would create new enthusiasm for Trump’s impeachment, but the reality of those hearings “probably shattered those illusions once and for all. If Democrats hope to end the Trump presidency, they will have to do so by defeating him at the ballot box in November 2020.”

Mueller’s many admirers were saddened by his obvious mental decline. Mueller, who will turn 75 this month, had to ask for questions to be repeated more than a dozen times, and seemed unfamiliar with direct quotes from the 448-page report on his investigation which he submitted to Attorney General William Barr on March 22. He even had difficulty remembering which US president had appointed him the top federal prosecutor in Massachusetts in 1986 (it was Ronald Reagan).

Mueller did try to keep his promise to limit his testimony to just the conclusions in his report. He refused to answer many questions which went beyond it, such as the origins of the Steele dossier.

Towards the end of the morning hearing before the Judiciary Committee, Democrat Congressman Ted Lieu asked Mueller, “[The reason] you did not indict Donald Trump is because of the OLC [Justice Department Office of Legal Counsel] opinion stating that you cannot indict a sitting president, correct?”

“That is correct,” Mueller responded.

But at the start of the afternoon hearing in front of the House Intelligence Committee, Mueller withdrew that answer and substituted the carefully crafted statement in his written report, that “we did not reach a determination as to whether the president committed a crime.”

MUELLER NO LONGER AS CAPABLE AS HE WAS AT THE FBI

Long suppressed media reports have now surfaced noting Mueller was no longer the hands-on leader he had been when he ran the FBI from 2001-2013, and that he had delegated much of his authority as Special Counsel to his top deputy, Aaron Zebley.

The New York Times reported that, “soon after the Special Counsel’s office opened in 2017, some aides noticed that Robert S. Mueller III kept noticeably shorter hours than he had as F.B.I. director, when he showed up at the bureau daily at 6 a.m. and often worked nights.” The Times also noted that at last week’s hearing, Mueller’s “halting delivery stood out all the more given his towering reputation for a command of facts and physical stamina — the stuff of lore among his former aides and colleagues. Nonetheless, he was unmistakably shaky.”

Fox News commentator Howard Kurtz expressed dismay at the failure of his journalistic colleagues to disclose their prior knowledge of Mueller’s diminished capacity before his disastrous congressional appearance last week. He also suggested that Mueller’s knowledge of his current limitations was the underlying reason for his extreme reluctance to testify before Congress, or to answer questions from reporters after reading a brief statement marking the formal end of his investigation at a May 9 press conference at the Justice Department.

GINGRICH ASKS WHO REALLY WROTE MUELLER’S REPORT

House Speaker Newt Gingrich suspects that, based upon his “weak and confused” performance last week, Mueller may have been no more than a figurehead providing political cover for a rogue, deeply partisan probe which had been hijacked by “a legal team dedicated to destroying Trump and protecting the Clintons.”

Gingrich’s disturbing conclusion is that, “There was no Mueller report. There was a report signed by Mueller, but it was really someone else’s work.”

Assuming his conclusion is correct, Gingrich then asks, “Who was driving the [Mueller] team and who was writing the report? It is clear Mueller does not know the details of his own report or of the two years of investigations behind the report. Who then does know all those details? Who masterminded putting Paul Manafort [who served briefly as Trump’s campaign manager] in solitary confinement for months? Who made the decision to not look into the Steele dossier, the company that paid for it, or the links to the Clinton campaign?”

Gingrich suggests that it is up to Attorney General William Barr to demand “a thorough internal review of how that system worked, who made the decisions, and how internally hostile to the president they were.”

According to former federal prosecutor Andrew McCarthy, Mueller’s staff had carefully crafted the final report that Mueller submitted to evade likely legal objections from Attorney General Barr that could have delayed its public release indefinitely.

HOW BARR DEFEATED MUELLER’S STRATEGY

Mueller and his staff also disobeyed Barr’s request that they mark all the confidential information in the final report before they submitted it. That omission was intentional. It could have enabled Mueller’s staff to selectively leak the report’s anti-Trump allegations to the media, while the confidential information it contained was being laboriously redacted by Barr, as required by law, before it could be released to the public. The allegations in the second half of report, identifying 10 possible acts of obstruction of justice by Trump, would then serve as an impeachment roadmap for congressional Democrats.

However, Barr’s strategy of quickly issuing his own interpretation of the report’s findings frustrated the intentions of its anti-Trump authors. Barr understood that most Americans would be willing to accept his brief summary without bothering to read the full 448-page report that would not be released until three weeks later.

Barr’s summary created a widespread initial public impression that Mueller had fully exonerated Trump, which undermined public support for Democrats seeking to launch an impeachment process. That impression was further reinforced on May 29, when Mueller declined to publicly challenge the accuracy of Barr’s summary.

Mueller’s final report did clear Trump on the Russian election conspiracy charge, and declined to pass judgement on the obstruction charge. Even though Mueller insisted that he had nothing more to say on the matter, Democrats believed that despite his denials, Mueller would prove to be a willing and effective witness against Donald Trump in last week’s congressional hearings. They were proven wrong on both counts.

Trump has always called the allegations that his campaign colluded with the Russians and that he had obstructed justice a media-driven hoax and a witch-hunt. He also claimed that the final report that Mueller delivered to Barr on March 22, as described in Barr’s summary, was a complete exoneration from those charges. Nevertheless, the Trump White House was quietly relieved that Mueller’s testimony last week had further undermined Democrat efforts to build support for impeachment.

Trump has redirected his public criticisms away from Mueller towards Democrats such as Baltimore’s Elijah Cummings, the chairman of the House Oversight committee, who has been outspoken in condemning Trump’s policies and accusing him of criminal conduct and racism.

HOW MUELLER’S POOR SHOWING STRENGTHENED PELOSI

Mueller’s poor performance before Congress also strengthened House Speaker Nancy Pelosi’s argument that Democrats do not yet have enough evidence to sustain a successful effort to remove Trump from office. She continues to warn the progressive activists, such as the four members of AOC’s squad determined to remove Trump from office, that a failed House impeachment attempt could prove disastrous for all Democrat candidates in the 2020 election.

On Friday, Pelosi insisted that she is still not ready to support launching impeachment proceedings against Trump, despite the fact that more than 100 House Democrats are now on record endorsing such a move. “We will proceed when we have what we need to proceed — not one day sooner,” Pelosi said at her weekly news conference.

But House Judiciary Chairman Jerry Nadler announced Friday that the House is formally seeking access from a federal court to the confidential grand jury information that Mueller’s investigation used in order to pursue what is, “in effect,” a preliminary impeachment inquiry.

“We are continuing an investigation of the president’s malfeasances,” Nadler said. “And we will consider what we have to consider, including whether we should recommend articles of impeachment to the House. That’s the job of our committee.”

In his court filing on the grand jury information, Nadler was more explicit in declaring his intention to pursue impeachment. It said that the “House must have access to all the relevant facts and consider whether to exercise its full Article I powers, including a constitutional power of the utmost gravity — approval of articles of impeachment.”

Nadler made his announcement while standing alongside 10 other House Democrats who support a formal impeachment inquiry. Congresswoman Veronica Escobar of Texas said that by formally requesting Mueller’s grand jury material, the Judiciary’s Committee’s inquiry had crossed a significant line. “The mode that we were operating under before, it really was an oversight function. We’re now crossing a threshold with this filing, and we are now officially entering into an examination of whether or not to recommend articles of impeachment,” Escobar said.

NADLER AND PELOSI SAY THEY ARE STILL FRIENDS

Nadler sought to downplay reports that he has been unable to convince Pelosi to take a more positive attitude towards formally launching the impeachment process.

Pelosi said at her news conference that she has “no complaint” against Democrats who have called for impeachment, and those currently investigating Trump’s personal finances and family business dealings in an effort to find further grounds for impeachment. The Trump camp is fighting all such congressional inquiries in court, including a subpoena issued last week for all the private emails sent by Ivanka Trump and Jared Kushner, who serve as unpaid White House advisors.

Some Democrat advocates for launching the impeachment process privately complain that Pelosi is intent on delaying a decision until after the annual August recess, which begins this week. When lawmakers return to Washington in September, the gathering momentum of the 2020 presidential campaign is likely to make an impeachment debate moot.

Pelosi denies that she and her fellow Democrat leaders are dragging their feet on the issue. “No. I’m not trying to run out the clock,” she insists.

HOW BARR CLEARED TRUMP

Initial Democrat expectations that Mueller would find smoking gun evidence proving the allegations of criminal election conspiracy with the Russians and obstruction of justice against Trump slowly faded, as the investigation dragged on for almost two years without yielding any new evidence to support the original charges against the president.

Mueller’s report admits that the investigation could find no evidence “that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.” More controversially, Mueller’s report declined to draw any conclusion on whether Trump had committed obstruction of justice, while citing 10 separate instances of possibly improper conduct by the president.

To satisfy insistent demands by Democrats and the media for prompt release of Mueller’s findings, Attorney General Barr and his assistant, Rod Rosenstein, produced a brief summary of Mueller’s conclusions which was published on March 24, two days after Mueller submitted the confidential final version to Barr. The summary quoted the Mueller report’s clear exoneration of the Trump campaign on the Russian conspiracy charge, as well as a judgement by Barr and Rosenstein on the obstruction of justice question which Mueller had refused to address. Based upon Department of Justice prosecution guidelines, Barr and Rosenstein concluded “that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.”

Democrats stubbornly refused to accept Mueller’s failure to find sufficient evidence to support an impeachment proceeding, complaining that Barr and Rosenstein had exceeded their authority by interpreting Mueller’s refusal to pass judgement on obstruction of justice as exonerating Trump on that charge. Democrats also accused Barr of attempting to influence public opinion in Trump’s favor by distorting the report’s conclusions, but when the DOJ did release the lightly redacted full text of the report on April 18, it only confirmed the accuracy of the Barr-Rosenstein summary.

Meanwhile, the anti-Trump media had reported that Mueller had written to Barr complaining that the summary did not accurately convey the (anti-Trump) tone of his report to the public. Yet when Mueller appeared at a Justice Department press conference on May 29, 2019, to announce the closure of the Office of the Special Counsel and the end of his investigation, he declined to make any comment on Barr’s summary.

DEMOCRATS PRESSED MUELLER TOO FAR

Instead, Mueller declared that “the report is my testimony” and that he would not go beyond its findings in answer to any questions about the investigation. He also expressed the hope that he would not be called upon to speak publicly about the investigation again, and refused to answer any questions from the reporters present.

House Intelligence Committee chairman Adam Schiff and House Judiciary Committee chairman Jerry Nadler, still eager to build an impeachment case against Trump, refused to honor Mueller’s request. When Mueller refused their initial invitations to appear before their committees, they forced the issue by threatening to issue subpoenas to compel his testimony. That led to last week’s sad spectacle on Capitol Hill, which exposed Mueller, a legendary giant of the American criminal justice system, as he is today — a fading old man incapable of providing meaningful answers to penetrating questions about the two-year-long investigation he supposedly led.

MUELLER AND THE COMEY CONNECTION

Robert Mueller was appointed by then-Assistant Attorney General Rod Rosenstein on May 17, 2017, to take over an ongoing FBI investigation into allegations that Trump’s 2016 presidential campaign had illegally colluded with the Russians to influence the outcome of the elections. Mueller was also tasked by Rosenstein to look into allegations that Trump, once in office, had obstructed justice by trying to impede the FBI investigation and by firing FBI Director James Comey on May 9, 2017.

Comey’s firing had caused a firestorm of political controversy, which intensified after Trump said in an interview with NBC reporter Lester Holt that the FBI investigation had been a factor in his decision to fire Comey. The pressure to name a special counsel increased after Comey arranged the leak of a confidential memo to the New York Times describing a private Oval Office conversation in which the president had asked him to be lenient in the investigation of his friend, Michael Flynn, who had been entrapped during an ambush interview set up by the FBI.

Flynn was facing prosecution for a false statement to FBI investigators about a wiretapped phone conversation he had with Sergey Kislyak, the Russian ambassador to the US, on December 29, 2016, the same day that outgoing President Obama announced sanctions on Russia for interfering in the 2016 election.

Rosenstein appointed Mueller to serve as Special Counsel because his superior, then-Attorney General Jeff Sessions, had recused himself from the Russian election conspiracy probe due to the active role Sessions had played in the 2016 Trump campaign. Trump had complained publicly about Sessions’ decision, and said that if he had known Sessions would recuse himself, he would not have named him attorney general.

Mueller’s appointment received broad bipartisan approval at the time, because of his outstanding record as FBI director between 2001 and 2013, and the reputation he developed for being a meticulous and non-partisan Justice Department prosecutor in the 1970s, 80s and 90s. But critics of his appointment noted that during that period, Mueller enjoyed a close working relationship with Comey, who was expected to be a key witness in any obstruction of justice case that might be brought against President Trump as a result of Mueller’s investigation.

Soon after his appointment, Mueller raised eyebrows by appointing a team of lawyers and prosecutors to investigate Trump made up entirely of Democrats, including some who had been active contributors to Hillary Clinton’s 2016 presidential campaign, and one who had represented the Clinton family’s charitable foundation. Mueller’s team also included Peter Strzok and Lisa Page, who were later removed over text messages which revealed their strong pro-Clinton bias and their determination to destroy Donald Trump’s presidency.

Mueller’s team did arrest several Trump campaign associates, including former National Security Advisor Michael Flynn; political consultant Paul Manafort and his business associate, Rick Gates; Trump’s private attorney and “fixer,” Michael Cohen; and George Papadopoulos, a low-level Trump foreign policy advisor. They were prosecuted for crimes unrelated to the alleged Trump conspiracy with the Russians, or for “process crimes” committed during the investigation, such as lying to FBI agents. Despite the intense pressure applied by Mueller’s team, none of them provided any direct evidence to back the accusation that Trump or his campaign had willingly conspired with the Russians to influence the 2016 election.

Mueller also indicted 13 Russian individuals and three Russian companies for sending American voters Russian propaganda that targeted both presidential candidates, but since those individuals remain in Russia, their cases will likely never come to trial in an American court.

Democrats had continued to hope that Mueller was sitting on the incriminating evidence needed to force Trump from office, even after it became clear that Mueller’s investigation was winding down without new criminal indictments against members of Trump’s inner circle other than controversial Republican operative Roger Stone. During the 2016 campaign, Stone boasted of his contacts with a Russian hacker, and knowledge of plans by WikiLeaks to publish hacked Democrat emails.

Stone had always been an avid Trump supporter, but he cut his formal ties with the Trump campaign on August 8, 2015, and was later banned from appearing on CNN and MSNBC. Stone was arrested in January 2019 after an indictment filed by the Mueller team charged him with making false statements and jury tampering, but nothing to suggest that Stone had cooperated with Russian efforts to interfere with the 2016 election.

Mueller and his team spent almost two years and almost $30 million to investigate claims that the Russians had conspired with the Trump campaign to fix the outcome of the 2016 election, and that President Trump subsequently obstructed justice by trying to conceal that conspiracy from the investigation. The only part of that mandate which the Mueller investigation fulfilled was verification that the Russians did make a serious effort to interfere with the election.

The Russians used social media to try to influence American voters, and stole politically damaging emails from the computers of the Democrat National Committee and Hillary Clinton’s campaign chairman, John Podesta, which were ultimately published by WikiLeaks. The Russians also apparently used various agents to contact members of Trump’s 2016 campaign, but none of those contacts resulted in any agreement between the two sides to cooperate on the election.

HIGH PRESSURE TACTICS FAILED TO PRODUCE EVIDENCE

Suggestions that Mueller was incapable of closely supervising the day-to-day operations of his investigation, based on his poor performance last week, could help explain why its targets, including Flynn and Manafort, were treated so harshly.

For example, one of the top prosecutors on Mueller’s team was Andrew Weissmann, notorious for using intimidation to force lower level defendants to testify for the state, and advocating extreme punishments against defendants. As head of the federal task force investigating the 2002 Enron scandal, Weissmann convinced a district judge to instruct the jury that it could convict Enron’s major accounting firm, Arthur Andersen, LLP, even though its employees did not know that they were violating the law. The verdict in that case destroyed Andersen, putting it out of business and throwing thousands of its employees out of work. That verdict was later overturned by a unanimous ruling of the US Supreme Court because of the judge’s jury instructions.

Weissmann was in charge of Mueller’s case against Paul Manafort. He decided to arrest Manafort in a pre-dawn raid on his home, in which FBI agents with guns drawn entered Manafort’s bedroom while he was sleeping, instead of simply asking Manafort’s lawyer, with whom Weissmann was in contact, to ask his client to surrender voluntarily.

Mueller’s team also used hardball tactics to extract damaging testimony against Trump from Michael Flynn. Flynn had agreed to plead guilty to lying to FBI agents in federal court, even though he had clearly been entrapped by Comey, and the FBI agents who had interviewed him did not believe that he was deliberately lying to them. Nevertheless, Flynn pleaded guilty in order to keep Mueller’s team from bringing separate criminal charges against Flynn’s son. But Flynn did not give evidence against Trump.

Mueller’s team referred Michael Cohen’s case to the Southern District of New York for financial crimes unrelated to the central Russian conspiracy allegation. To gain a more lenient sentence, Cohen agreed to plead guilty to violating federal election law at the president’s direction by paying hush money to cover up scandalous allegations against Trump during the 2016 campaign, and also claimed that Trump had lied when he claimed to have severed his business interests in Russia, including a proposed Trump Tower in Moscow, by the beginning of 2016. However, the legal value of Cohen’s testimony is questionable, because he has changed his story several times and has pleaded guilty to lying in previous testimony before Congress. Also, Cohen has never claimed that Trump conspired with the Russians to fix the 2016 election.

DID MUELLER FULFILL HIS MISSION?

Mueller’s investigation is over, but a vigorous debate continues over whether the Special Counsel completed the job that he had been assigned to do. National Review commentator Andrew McCarthy insists that Mueller failed, because he refused to reach any conclusion of the obstruction of justice accusation.

Mueller argued that he was prohibited from doing so by a policy adopted by the Justice Department’s Office of Legal Counsel (OLC), which prevents Justice Department prosecutors from prosecuting a criminal case against a sitting president. The rational for the OLC policy is that the president’s duties of office are too important to allow him to be distracted by the necessity to defend himself in a court of law. While the president is in office, the only way to remove him is through the political process specified in the Constitution of impeachment and trial by the two houses of Congress.

McCarthy argues that there is nothing in the OLC policy which prevents federal prosecutors, such as the Special Counsel, from investigating a sitting president and recommending his criminal indictment, as long as any trial is delayed until after the president leaves office. McCarthy insists that the decision to accept or reject the prosecutor’s indictment recommendation for a president, and the timing of any trial, is up to the prosecutor’s supervisor, which in Mueller’s case would be Attorney General Barr.

But whoever wrote Mueller’s report adopted a radically different interpretation. It claimed that because the OLC policy prevents a sitting president from being tried, Mueller and his prosecutors were not allowed to even consider the question of whether Trump might have been guilty of obstruction of justice.

McCarthy rejects this argument as “absurd,” because it flies in the face of federal regulations which define the Special Counsel’s job as reaching a “binary prosecutorial decision to charge or not to charge.”

Mueller’s job was to make a charging recommendation to Attorney General Barr, based upon the evidence uncovered in his investigation, as to whether or not to indict Trump for conspiring with Russia to influence a federal election and/or obstructing the investigation into that conspiracy. It would then be up to Barr to accept or reject Mueller’s charging recommendation and whether to follow the OLC’s guidance on delaying any trial until after Trump leaves office.

McCarthy notes that Mueller’s claim that the OLC guidance prevented him from reaching any conclusion on the obstruction of justice charge raises three obvious questions:

“First, if Mueller really believed the OLC guidance prevented him from even considering whether President Trump could be charged, why did he render a decision

[exonerating Trump]

on the collusion aspect of the probe? He can’t have it both ways.

“Second, if Mueller really believed the OLC guidance prevented him from performing the prosecutor’s task, why on Earth did he accept the appointment to act as a prosecutor?

“Third, if Mueller really believed the OLC guidance prevented him from considering whether to indict, why did he tell AG Barr, two weeks before filing his report, that the OLC guidance was not the reason he would refrain from recommending obstruction charges?”

MUELLER’S OLC SMOKESCREEN

McCarthy suggests that the OLC argument was just a legal smokescreen by the anti-Trump lawyers on Mueller’s team designed to get the report past Barr’s likely objections and released to the public, essentially intact, so that Democrats could use it to impeach Donald Trump for obstruction of justice.

The Mueller team’s failure to find any credible evidence of a Trump-Russia election conspiracy meant that the only charge that could be brought against the president was obstruction of justice. However, in June 2018, Barr sent an unsolicited 20-page memo to senior Justice Department officials in which he argued that the Special Counsel should not be investigating Trump for obstruction of justice because Trump’s actions, such as firing FBI Director James Comey, were within his Constitutional powers as head of the executive branch of the federal government.

While Congress retains the Constitutional right to impeach the president on any basis it sees fit, Barr argues that a federal prosecutor, who is an executive branch subordinate, can only indict the president for criminal obstruction for engaging in blatantly corrupt conduct, such as bribing a witness or destroying evidence.

This was not the legal position of Mueller’s original supervisor, Rod Rosenstein. But after Barr became attorney general in mid-February, Mueller’s staffers realized that he would reject any report they might submit recommending that Trump be indicted for exercising his Constitutional authority as president. The subsequent legal dispute would keep the confidential report tied up within the Justice Department indefinitely, with Barr’s opinion as attorney general and a former head of OLC ultimately likely to prevail.

The only option for Mueller’s team was to finesse the entire question of obstruction of justice, using the phony claim that the OLC guidance had tied their hands on the issue, while at the same time including as much material as possible in the report suggesting that Trump was indeed guilty of obstruction. Meanwhile, Mueller had to explain to Barr why he was not finding that Trump was guilty of obstruction, but at the same time specifically noting in his report that he was not exonerating Trump from that charge, giving a wink and a nod to Democrats eager for any excuse they could use to impeach the president.

A CRITICAL LACK OF PROVABLE CRIMINAL INTENT

McCarthy writes that Barr did not want to get into a major public controversy with Mueller by rejecting his report. Instead, Barr took advantage of the fact that Mueller had deliberately left the obstruction question unresolved, and decided to use Mueller’s other findings to make the case that Trump could not be convicted of obstruction of justice, because the law requires proof of his corrupt intent “beyond a reasonable doubt.”

Trump could prove that he was not obstructing justice by pointing a) to the extraordinary cooperation that his White House gave to Mueller, providing all the documents and witnesses he requested; b) the fact that Trump never used his executive authority to shut down the investigation or fire Mueller; c) the absence of any underlying crime of conspiracy with the Russians that Trump would want to cover-up; and d) the likelihood that Trump was criticizing the investigation out of frustration rather than corruption, because he knew that he was being falsely accused of conspiring with the Russians.

McCarthy concludes that Barr won his battle of wits with Mueller’s team, which “creatively used the OLC guidance to try to signal an obstruction crime without quite accusing Trump of obstruction [and] banking on congressional Democrats to finish the job. In Barr, they just happened to run into a guy who figured out what they were doing, and who had the brains and the power to stay a step ahead.”