Democrats have hopes former Special Counsel Robert Mueller’s highly-anticipated testimony on Capitol Hill Wednesday will breathe life into moribund efforts to impeach President Trump, but Republican legal analysts say it will be a stiff task.
“I expect widespread disappointment, actually,” said former federal prosecutor and National Review Institute fellow Andrew McCarthy in a recent Fox News interview.
McCarthy and other legal analysts believe that the top question Democrats want to ask Mueller is whether he would have recommended obstruction of justice charges against Trump if it were not for the Office of Legal Counsel’s opinion that a sitting president cannot be indicted.
“The million dollar question that they want to be able to ask him and to get a satisfactory answer [is] if it were not for the Office of Legal Counsel guidance that says a sitting president cannot be indicted, would you have indicted the president for obstruction of justice?” McCarthy said.
“That’s the question they really want a ‘yes’ answer to. And they’re not going to get one,” he added.
McCarthy said Mueller’s prior statements and his report “lock him into” the position that it was not a question he and his team actually confronted.
“They decided simply not to grapple with that, and I don’t think Mueller is — no matter how hard he gets pushed, I don’t think he’s going to go outside his report on that,”McCarthy said.
A close reading of the relevant parts of the report appears to confirm that view.
Mueller’s final report stated that he and his team “determined not to make a traditional prosecutorial judgment” on whether Trump obstructed justice. It noted that the Office of Legal Counsel (OLC)’s opinion is that “the indictment or criminal prosecution of a sitting President would” undermine the executive branch and violate “the constitutional separation of powers.”
It said given the special counsel worked in the Justice Department and given the framework of the special counsel regulations, Mueller and his team “accepted OLC’s legal conclusion for the purpose of exercising prosecutorial jurisdiction.” However, it said, “apart from OLC’s constitutional view, we recognized that a federal criminal accusation against a sitting President would place burdens on the President’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct.”
It also said Mueller and his team considered whether to “evaluate the conduct we investigated under the Justice Manual standards governing prosecution and declination decision, but we determined not to apply an approach that could potentially result in a judgment that the President committed crimes.”
In other words, since assessing whether Trump committed a federal offense could have led to a legal judgment that Trump did conduct a federal offense, Mueller and his team declined to make any assessment to avoid reaching a legal judgment.
The report notably does not say whether an assessment would have indeed led to such judgment, but it added that after a “thorough investigation of the facts,” they did not have confidence that Trump “clearly did not commit obstruction of justice.” In a line that has given Democrats ammunition, it said: “while this report does not conclude that the President committed a crime, it also does not exonerate him.”
Democrats hope to get Mueller to say that he and his team would have made a judgment that Trump obstructed justice but chose not to because of the OLC opinion.
McCarthy said he did not believe Mueller would be cooperative in this endeavor. “I think he’s going to be uncooperative in this regard…they want him to go beyond the report,” he said. “What they would like to do is push them beyond that and say if you had your druthers, would you charge him?”
Mueller stated in his only press conference on the report that if he testified to Congress that he would not go beyond what is in his report.
“He has said himself he doesn’t want to go far beyond that,” Former New Jersey Attorney General Chris Staszak said on Fox News. “I don’t think there’s going to be any bombshells.”
Democrats will reportedly focus on specific incidents Mueller and his team examined as potential obstruction of justice, including Trump’s alleged request to former White House Counsel Don McGahn to fire Mueller, his alleged order for McGahn to deny he had wanted him to fire Mueller, his alleged request to former campaign manager Corey Lewandowski to get then-Attorney General Jeff Sessions to limit the probe, and allegedly trying to dangle the prospects of pardons to former campaign manager Paul Manafort, and alleged witness tampering.
However, Democrats pushing for impeachment will have to convince at least 123 fellow Democrats — including House leadership — to change their minds. Last week, 137 Democrats voted against impeaching Trump, while only 95 Democrats did so, and one Democrat voted present.
“It will be nothing but ‘puddlers’ — chip and drop shots — but it won’t matter,” Jonathan Turley, Shapiro Professor of Public Interest Law at George Washington University, wrote in The Hill on Monday.
“The same analysts who have been wrong for two years will give the same breathless courtside commentary. And the members of the congressional committees will scream like John McEnroe — while playing like Bernard Tomic. Of course, unlike Tomic, those members will continue the match despite it having been called weeks ago,” he wrote.
Republican analysts say Mueller’s testimony will actually be an opportunity for Republicans to ask Mueller questions they have had about this investigation for a long time. One key question will be when Mueller concluded that Trump and his campaign did not commit a criminal conspiracy with Russia during the 2016 election.
Republicans believe that Mueller concluded that part of his investigation in late 2017, and will argue that all the acts of alleged obstruction occurred after the investigation should have been shut down.
“The investigation, I think, probably knew by late 2017 that there was no collusion…based on the indictments Mueller filed,” McCarthy said. The investigation continued on to March 2019 — about a year and a half after that.
Republicans also have a bevy of other questions to ask Mueller, including why he quietly removed former FBI officials and then-lovers Peter Strzok and Lisa Page from the special counsel team without explaining that it was because the Justice Department inspector general had found they exchanged hundreds or more text messages disparaging Trump. They will also ask him why those text messages were later destroyed and not preserved.
They will also ask him about the FBI’s conduct leading up to the investigation against Trump and the potential abuse of the Foreign Intelligence Surveillance Act to obtain a surveillance warrant against former Trump campaign members.
“This is a golden opportunity,” former Secret Service agent and radio show host Dan Bongino said on Fox News.
“I think that Mueller is going to find out that, although he can’t talk about the investigation anymore than he has already disclosed, he’s going to be faced with a lot of questions he hasn’t answered before,” Rudy Giuliani, the president’s attorney, said Sunday on the John Catsimatidis radio show.
Still, Trump said he will not be watching the hearing and slammed Democrats for fixating on the Mueller hearing instead of healthcare, infrastructure, or lowering drug prices.
“You can’t take all those bites out of the apple. We had no collusion, no obstruction. We had no nothing. We had a total ‘no collusion’ finding. The Democrats were devastated by it. They went crazy. They’ve gone off the deep end,” he said at the White House on Monday.
“A lot of great things are happening. But the Democrats, they don’t want to talk about that. They want to stay off the economy subject. And what they’re doing is just hearing after hearing after hearing. It’s nonsense. OK?”
Daniel Turner, president of Power of the Future, said he expected Democrats to try to turn the hearing into a 2020 event.
“They don’t really have much else to run on,” he said Sunday on Fox News.
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