Mueller, drop the Yoda act (Opinion)

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I understand what Mueller has tried to do. He has been careful. He understands the stakes of his investigation, and he has erred on the side of caution — the far, far, side of caution, it turns out, to the point of obscuring his own factual findings and legal conclusions. He has tried so hard to color inside the lines that he hasn’t completed the picture.

Instead, Mueller gave us an ambiguous, Yoda-like pronouncement: “If we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment.” Ultimately, Mueller declared to head-scratching effect that “[w]hile this report does not conclude that the President committed a crime, it also does not exonerate him.”

Mueller’s reticent approach contrasts with the one taken by Independent Counsel Ken Starr in his 1998 report on President Bill Clinton. Starr found “substantial and credible information” that Clinton “lied under oath” and “endeavored to obstruct justice” — and he referred the case to Congress to consider “eleven possible grounds for impeachment.” Starr can be fairly criticized for going into gratuitous, prurient detail about the relationship between Clinton and Monica Lewinsky, but he was clear about his legal conclusions.
Mueller’s approach has proven problematic on two levels. First, while it seems clear Mueller intended to hand the ball off to Congress, they’ve fumbled it. Mueller stated in his report: “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.”

Translation: Congress, your turn. Yet we are three months out from public release of the report, and Congress has not opened a formal impeachment inquiry, heard substantive public testimony from a single fact witness or even gone to court to enforce the subpoenas that the White House has repeatedly defied.

Second, Mueller’s reticence has left a yawning gap in the understanding of the American public, which Trump and Barr have eagerly filled with distortion. Trump has claimed repeatedly and incorrectly that Mueller found “no obstruction” and granted “total exoneration.” Mueller’s report concludes otherwise, but not clearly or forcefully enough to foreclose Trump’s persistent spin. And both Trump and Barr misleadingly have repeated the “No Collusion” mantra. Yet Mueller makes clear in the report that he found insufficient evidence to charge a criminal conspiracy, but did not evaluate anything under the non-legal rubric of “collusion” — and, indeed, found dozens of contacts between the Trump campaign and Russia, some of which Trump officials members lied about.
Mueller has served his country honorably and heroically in the military and law enforcement for decades. We know that he does not want to testify beyond the four corners of his report — “the report is my testimony,” he stated in May. But sometimes what a person wants and what he must do are two different things. Now, as perhaps his final act in public life, Mueller owes it to Congress, the American public and his own legacy to do away with niceties and give it to us straight.

What questions would you ask Mueller? Here are some of our readers’ top suggestions.

Tracy, Indiana: Did Trump obstruct justice, and would you have indicted him if he weren’t President?

This is the biggest question that Mueller left unanswered in his report. Mueller likely will try to dodge this question if asked by Congress. He will call it a hypothetical or claim he has not considered the issue given that he could not indict Trump under Justice Department policy, regardless of the evidence.

What to expect from Mueller's testimony
Even if Mueller refuses to answer the ultimate “Would you have indicted?” question, Congress can use Mueller’s own words in the report to get him most of the way to stating a clear legal conclusion. In analyzing various potentially “obstructive acts” in the report, Mueller finds “substantial evidence” on all legal elements required to prove obstruction for at least four of those acts: (1) Trump’s efforts to fire Mueller, (2) Trump’s efforts to limit Mueller’s probe, (3) Trump ordering former White House counsel Don McGahn to falsely deny efforts to fire Mueller and (4) Trump’s effort to dissuade former campaign chair Paul Manafort from testifying. Indeed, House Democrats reportedly intend to focus on these and other specific instances of potential obstruction.

So, Congress should walk Mueller through those acts, one by one, asking for each (for example): “Did you find substantial evidence that Trump’s efforts to fire Mueller met the required legal elements of obstruction?” Mueller’s report compels a yes answer, which is virtually the same thing as Mueller saying he would have indicted if not for the Justice Department policy. Line up four straight “yes” answers, and you make a compelling case that Mueller did find that Trump obstructed justice — repeatedly.

Gwen, Washington: Was your report intended to be an impeachment referral to Congress?

In 1998, Starr made an explicit referral to Congress, listing 11 specific potential grounds for impeachment. Mueller’s report is more opaque, noting that “Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of office.”

It is unclear whether Mueller meant this as a generalized statement of how the law works, or as a specific referral of this President to this Congress. (A linguist might note that Mueller says, “the president,” not “a president,” which would indicate he had Trump in mind specifically). Congress should ask whether Mueller meant in this statement to refer to impeachment, and whether by “the President” he meant Trump.

Mueller also stated during a press conference that the Constitution requires a “process other than the criminal justice system to formally accuse a sitting president of wrongdoing.” Congress should ask Mueller if the process to which he referred here was impeachment.

David, South Carolina: Have your findings been publicly mischaracterized by Attorney General William Barr? If so, how?

Mueller's message: Congress, it's your turn
Mueller wrote a letter to Barr criticizing him for publicly misstating the “context, nature and substance” of Mueller’s investigation. Congress must follow up by asking Mueller in what specific respects Barr distorted Mueller’s work. Mueller’s response here could prove devastating to Barr, as Mueller will be compelled by his own words to publicly explain specific areas where Barr has distorted Mueller’s findings.
Congress also should put the most glaring misstatements made by Trump and Barr squarely in front of Mueller. Congress should ask Mueller directly: “Are Trump and Barr correct when they say you found ‘no collusion'”? Did you in fact find “no obstruction,” as Trump has claimed? Did you grant Trump “complete and total exoneration,” as he has claimed? These questions will force Mueller to directly acknowledge that both Trump and Barr have publicly mischaracterized his work.

Mary Ann, Texas: Why didn’t you subpoena Trump to testify?

In the report, Mueller discusses but does not fully answer this question. Mueller notes that he believes he had the “authority and legal justification” to subpoena Trump but decided against it, in part because a legal battle over a subpoena would cause “substantial delay.” This is a poor excuse. Mueller acknowledges that he negotiated for Trump’s testimony for “more than a year.” So, Mueller could have prevented that delay by drawing a line after, for example, two months of negotiation and then serving a subpoena and going to court to enforce it, if necessary.

Crucially, Mueller notes that he “had sufficient evidence” of Trump’s actions and intent “to understand relevant events and to make certain assessments without the President’s testimony.” This calls out for follow-up questioning by Congress. What specific “certain assessments” did you draw about Trump’s motive and intent? Based on what evidence? These questions will shed critical light on Mueller’s conclusions about whether Trump had corrupt intent to obstruct justice.

Benjamin, Washington: Why didn’t you indict Donald Trump Jr. for conspiracy based on the June 2016 Trump Tower meeting? Did any member of your team recommend indictment?

Federal law makes it a crime for any person to “solicit, accept or receive” a campaign contribution or donation” of “money or other thing of value” from a foreign national. In his report, Mueller applies this law to the June 2016 Trump Tower meeting between Trump Jr., Manafort and Jared Kushner and a group of Russians who had offered dirt on Hillary Clinton — to which Trump Jr. responded by e-mail, “if its what you say I love it especially later in the summer.”

In Mueller’s analysis, Trump Jr. dodged criminal charges because he slipped through two loopholes. First, Mueller cites uncertainty about whether the promised information about Clinton qualifies as a “thing of value” — even though the law only requires some “nominal” value. I think Mueller missed the mark here. The law does not require that an item carry a specific or large price tag to qualify as a “thing of value.” Of course, damaging information about an electoral opponent carries value. Just see Trump Jr.’s ecstatic reaction — “I love it” — for proof. Why would Trump Jr. love receiving something of zero value?

Second, Mueller cites difficulty proving that Trump Jr. acted “willfully” — meaning with general knowledge that his conduct was unlawful. Again, I disagree. A prosecutor need not show that Trump Jr. knew every nuance and sub-section of campaign finance law; general knowledge of wrongfulness is enough. Trump Jr. was a campaign senior staffer, so he had to know at least something about campaign finance. And Trump Jr. offered input on a misleading public statement his father “dictated” after the meeting, which shows that he knew he had done something wrongful.

Mueller certainly will stand by the analysis in his report. But Congress still should ask him whether a reasonable prosecutor could disagree with his legal analysis and charge Trump Jr. And Congress should ask whether any members of Mueller’s team expressed dissent and argued in favor of indictment. (Are the internal discussions within his office confidential? Or privileged?)

Three other questions to watch for

1) Will Mueller’s testimony move more House members to support an impeachment inquiry, or will it extinguish the popular and political appetite for it?

2) Will Mueller stick to his vow that “the report is my testimony,” or will he provide factual or legal insight beyond what he already has written?

3) Will the White House or Justice Department take last-minute steps to try to limit or prevent Mueller’s testimony?





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