Justice Fell Short After Mueller Report. Congress Can Finish the Job.
Democrats can win the spin on this report in the coming days—there’s enough there. But if they use this to start howling for impeachment, they’re going to blow it.
Well, after all that, the bad news is that this changes nothing.
And the good news? This changes nothing.
Donald Trump is not going to be perp-walked out of Mar-a-Lago next weekend. Trump defenders and Julian Assange acolytes and deep-state paranoiacs can crow.
On the other hand, the Mueller Report has plenty of chapter and verse on sleazy behavior by Trump and his subordinates—and, interestingly, it documents some incidents where subordinates refused to do sleazy things Trump clearly wanted them to do.
It does not clear Trump. Here’s the last sentence of text of the whole thing, on page 180 of Volume II, the obstruction part: “Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”
If that sounds wishy-washy, it should, and it reflects the structure of the whole thing. Take the section on Trump’s firing of James Comey. The report does come down on the side of saying that the official reason for Comey’s firing, the Rod Rosenstein memo that cited the FBI director’s mishandling of the Clinton email investigation, was nonsense. It cites what Trump said to Lester Holt on NBC, that he fired Comey over Russia. Then (Volume II, page 74), it takes up the question of whether the firing constituted obstruction.
“Firing Comey,” the report says, “would qualify as an obstructive act if it had the natural and probable effect of interfering with or impeding the investigation.” It seems obvious that that was the intent. Trump was mad that Comey wouldn’t say publicly that Trump personally was not under investigation, and Trump was clearly enraged about the investigation itself. Why else would he fire the guy?
But then, in the next paragraph, the report says: “The anticipated effect of removing the FBI director, however, would not necessarily be to prevent or impede the FBI from continuing its investigation.” In other words, Comey wasn’t conducting the investigation single-handedly, so firing him didn’t impede it!
Well, maybe that’s what the letter of the law says. But it’s not what common sense says. The report is like that over and over again. Act A would qualify as an obstructive act if A, B, and C conditions are met. We found considerable evidence that A, B, and C conditions were met. However, they weren’t met enough for us to identify a clear crime.
And that’s where the report has left us, more or less where we were before it hit, with a few damning new details and the certainty that the courts aren’t going to resolve this. So now what?
This is what I meant above when I wrote that the good news is that nothing changes. Democrats should still pursue their investigations. They need to get Bill Barr, who dirtied himself further Thursday morning in breathtaking ways, back up on the Hill. They need to hear from Mueller. They need to keep pushing for an unredacted or less-redacted report—huge chunks of the Wikileaks section in particular are blacked out—as Jerry Nadler vowed they would do at his press conference Thursday afternoon.
The report suggests that that’s what Mueller wants. A key sentence, Volume II, page 8: “The conclusion that Congress may apply the obstruction laws to the President 's corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.” In other words: Keep at it, Jerry!
But: The Democrats who’ve been engaging in impeachment talk should follow their leaders and cool it. This report says plenty of bad stuff about Trump. The public will drink it in and will, I think, come to basically the right conclusions. Trump did a lot of fishy things--maybe, out of some combination of good lawyering and stupid luck, just on the good side of the law. No one outside of MAGAville is going to read this as a clean bill of health.
In other words, the Democrats can win the spin on this report in the coming days—there’s enough there. But if they use this to start howling for impeachment—which barely more than one third of the public supports right now—they’re going to blow it.
I understand all the arguments against the one I’m making. But picture this. The House votes articles of impeachment along strict party lines sometime this fall. Then, a year from now, or 15 months from now—and Mitch McConnell would time this exquisitely; say, the week before the Republican convention—the Senate votes to acquit on all charges, which it would do.
That’s a gift to Trump, and perhaps even more so, to the Republicans running for Senate in all those red states where Democrats need to win if they’re going to have a chance of recapturing the chamber (North Carolina, Arizona, Georgia). It could well help reelect Trump. Are articles of impeachment that are doomed to fail in the Senate anyway worth four more years of Trump and McConnell, and possibly two more right-wing Supreme Court justices, and the death of Obamacare, and all the rest?
This isn’t a movie. No one’s going to break down on the witness stand and confess everything. It’s also not a moot court competition, where the law reigns supreme and people decide things on the merits. It’s politics, at its most gruesome. Unassailable legal arguments don’t win you a political fight.
That does not mean Democrats should drop all this and stick to preexisting conditions. As I said above, Mueller gave them a lot of material. This was no witch hunt. There are witches. The Democrats should haul them all before Congress. They need to push hard on every door this report opened, from Trump Tower to Erik Prince to Hope Hicks and the emails and everything else that’s there. They need to make sure the American people know that Trump said “I don’t remember” 30 times and refused to testify. They need to keep putting pressure on the administration. They need to ask smart and tough questions, hold the high ground and hold politically vulnerable Republicans to account for ceding it to stand with Trump.
A clearer verdict on obstruction of justice may someday emerge.
Mueller kicked it to Congress. Now Congress has to do its job. Aggressively—but smartly.