Congress finally has an opportunity to ask special counsel Robert Mueller direct questions about his investigation of Russian interference in the 2016 presidential election. This is good because contrary to Mueller’s protestations, his report doesn’t answer everything.
The biggest question is one Mueller is sure to say he has already answered: Why did he decline to reach a traditional prosecutorial determination about whether President Donald Trump committed obstruction of justice? Yes, Mueller addressed this both in his report and in his May news conference (at which he took no questions). The trouble is his answer makes no sense.
In what might have been the biggest discrepancy between Mueller and Attorney General William Barr’s summary of his findings, the Trump-Russia special counsel said he was guided by Justice Department policy: a sitting president can be investigated but not charged, though the investigation could lead to charges against any co-conspirators identified. Since Trump could not be indicted for obstruction, Mueller concluded “it would be unfair to potentially accuse somebody of a crime when there can be no court resolution of the actual charge.”
There are two problems with this explanation. First, the Justice Department’s policy against indicting a sitting president does not prevent Mueller from arriving at a conclusion. Second, if “fairness” is the issue, the Mueller report already purports to lay out evidence against the president without any resolution. As it happens, many Democrats in Congress interpreted both his report and his press conference account of why he did not take a firm position on obstruction as a sort of passive-aggressive impeachment referral.
At the very least, this begs for follow-up questions. Why was your report not an explicit impeachment referral like independent counsel Kenneth Starr’s during the Bill Clinton-Monica Lewinsky saga? Was it a close call legally or in terms of evidence? Was your team divided about what to do? Or was the key difference the fact that Starr reported to a panel of judges under a since expired statute while Mueller reported to Barr and the Justice Department?
Barr has already publicly said he did not agree with some of the legal theories under which Mueller found evidence of obstruction, especially as relates to the president’s use of his Article II powers under the Constitution. If Mueller directly accused Trump of wrongdoing, would he therefore be overruled? Was he concerned that going further than he did in his report might complicate its public release?
There are other questions worth asking. At one point did Mueller determine the evidence was not sufficient to establish a conspiracy between Russian electoral interference and any members of Trump’s campaign team? Maybe the answer is that he followed the trail of Trump-Russia contacts as far as he could before concluding there wasn’t enough there to sustain charges of criminal conspiracy shortly before he wrapped up the report. But the indictments he had handed down before the report was finished — that is, the things Mueller and his team thought they could walk into a courtroom and prove — were a pretty big tell. No American was ever charged with conspiring with Russia to commit any election-related crime — not Paul Manafort, not Roger Stone, not Carter Page, not George Papadopoulos. Page wasn’t even indicted at all.
How does Mueller answer critics like investigative reporter Eric Felten, who argues the report has a pattern of trying to appear more damning than what it proves factually? Felten argues Mueller “used a number of rhetorical devices to couch evidence and craft a narrative so that a document that ultimately clears the president can also be read as an indictment.” Doesn’t the fact that report has been read both ways by Trump’s defenders and detractors lend some credence to Felten’s contentions?
Mueller states in the report, “Papadopoulos suggested to a representative of a foreign government that the Trump Campaign had received indications from the Russian government that it could assist the Campaign through the anonymous release of information damaging to candidate Clinton.” What exactly did Papadopoulus say? What were the indications the Trump campaign received and who in the campaign received them? Who in the Russian government gave these indications?
Finally, the most important question is the one Mueller is least likely to answer, as he will undoubtedly say the decision belongs to Congress. Still, it’s worth asking: Does he personally believe President Trump has committed high crimes and misdemeanors and should therefore be impeached?
W. James Antle III is editor of The American Conservative. He wrote this for InsideSources.com.