The prevailing view among prominent Democratic and media voices is that special counsel Robert Mueller, with his closing remarks last week, has referred President Trump’s impeachment to Congress. This consensus is worthy of careful consideration in light of what the investigation found, what Mueller said, and what the consequences of an impeachment attempt could be.
It is important to recall that Mueller did not indict anyone for a Trump-Russia conspiracy and that his investigation “did not establish” that such a plot occurred. The Mueller report’s first volume provides an exhaustive account of Trump campaign officials interacting with people who either hail from Russia or claim to have ties to it. None of these interactions offer any evidence of a conspiracy—in fact, they cumulatively undermine the case for it. On top of finding no evidence for a conspiracy prior to the election, Mueller reports in the aftermath that “Russian government officials and prominent Russian businessmen…appeared not to have preexisting contacts and struggled to connect with senior officials around the President-Elect.” If top Russian officials and elites had really conspired with the Trump campaign before the election, it’s likely that they would have known whom to contact—and how to reach them—after their supposed plot succeeded.
Now that it has become no longer tenable to call Trump a Russian agent or accomplice, the goalposts have shifted. The main issue is no longer collusion, but Trump’s alleged obstruction of justice. Mueller’s choice of words at his closing news conference has been widely interpreted to endorse the narrative that Trump is guilty of an impeachment-worthy effort to interfere with the probe. But it is far from clear that that’s what Mueller meant. And even if that were a fair reading of Mueller’s remarks, it is another matter entirely whether that should spur congressional action.
For some the view that it is Congress’s duty to act rests on the assumption that Mueller would have otherwise indicted him if not for Department of Justice guidelines. Because the Office of Legal Counsel has determined that a president cannot be charged or prosecuted while in office, Mueller said that his team could “not reach a determination one way or the other about whether the president committed a crime.” But indicting someone for a crime is not the same as reaching a determination on whether they committed one. If Mueller believed that Trump was guilty of obstruction, he could have said so, and then let the Justice Department decide how to proceed.
Moreover, despite interpretations to the contrary, Mueller did not outright say he would have indicted Trump if not for the DOJ guidance. Mueller was explaining his decision to “not reach a determination one way or the other.” The point was reasserted in a joint statement from Mueller and Barr’s offices shortly after Mueller’s remarks. The statement reinforced Barr’s previous claim that Mueller had “repeatedly affirmed that he was not saying that, but for the [Office of Legal Counsel] opinion, he would have found the President obstructed justice.” If that is the case, then Mueller’s ambiguous invocation of DOJ guidelines could be interpreted as less of an appeal for Congress to act and more an excuse for his own decision not to.
Also hurting the case for congressional action against Trump is that Mueller’s most damning line against him was based on an inversion of a basic legal principle. Rather than determining whether or not Trump committed a crime, Mueller, in both his report and in his public statement, framed the issue around whether or not the evidence exonerates him of one. “If we had had confidence that the president clearly did not commit a crime, we would have said so,” Mueller said last week. But given that the US justice system is supposed to grant everyone the presumption of innocence, Mueller was under no obligation—and in fact, had no mandate—to clear Trump of a crime. His job was only to decide whether or not to accuse Trump of committing one.
With Mueller failing at his most basic task, it is difficult to see on what grounds Democrats would pick up where he left off. The baton he has passed them is weighed down by a final report that acknowledges it “did not establish that the President was involved in an underlying crime” related to election interference, punts on whether Trump obstructed the investigation, and offers up a head-spinning explanation for its indecision.
If that weren’t enough to dim impeachment hopes, Mueller erected more hurdles. He deflated a critical Democratic Party talking point since the close of his investigation: that Trump and Barr were engaged in a “cover-up” so dire that it had caused a “Constitutional crisis.” How exactly the “cover-up” occurred has always been unclear. The most embarrassing and possibly incriminating details of Trump’s behavior were learned from the testimony of his White House Counsel Don McGahn and other key aides. McGahn and company were able to relay those details to Mueller because Trump allowed them to testify. Trump did not assert executive privilege over any part of the report before Barr released it, allowing the public to consume all the details that Mueller included. In adherence to the law, Barr only withheld grand-jury material that was impossible to release publicly, a point conceded by legal experts summoned by Democrats for congressional testimony. According to Barr, Mueller’s team even caused a delay in the report’s release, because they ignored a request to highlight the grand-jury material that would need to be redacted.
The allegations of a cover-up peaked after the disclosure that Mueller had complained that Barr’s summary “did not fully capture the context, nature, and substance” of the report. But Mueller did not accuse Barr of misrepresenting his findings, and Barr testified that Mueller had told him that he believed Barr presented his conclusions accurately.
In his closing remarks, Mueller put the matter to rest when he confirmed that his dispute with Barr was indeed minor: “I requested that certain portions of the report be released”—the Mueller team’s summaries of each section—”and the attorney general preferred to make the entire report public all at once.” In the end, the dispute was not only negligible, but now meaningless: The full report was released minus the redactions required by law. It is for this reason, Mueller added, that “we appreciate that the attorney general made the report largely public,” which he acknowledged had been done in “good faith.”
So much for the cover-up. And like a first domino, Mueller’s comments knocked down adjacent speculation that his findings are being suppressed. After rampant fears that Barr and Trump would stop him from testifying, Mueller himself made clear that he has little interest in appearing before Congress. Even if he were to appear, he explained, “any testimony from this office would not go beyond our report,” and he personally “would not provide information beyond that which is already public.”
Mueller’s reluctance to testify not only torpedoes the theory that he is being thwarted but also the idea—we might say the hope—that he has something explosive yet to share. Prominent advocates of the Trump-Russia conspiracy theory still speculate that Mueller and his investigators uncovered reams of evidence that Trump is compromised by Putin, which have yet to see the light of day. The charge that Mueller and other top officials have somehow withheld something like this from Congress is laughable. If that weren’t obvious enough, the fact that Mueller himself feels no further need to comment about his investigation “beyond that which is already public” should put the remaining innuendo to rest.
In the absence of public evidence confirming the conspiracy theory, proponents have tried to reframe what’s available into something equally as damning. It is now considered suspect, even incriminating, that Trump and his associates supposedly welcomed Russia’s help and encouraged it publicly. But the strongest evidence for this charge is derived from a combination of fiction and humor. Yes, Donald Trump Jr. was enthusiastically receptive to an offer from Rob Goldstone, a British music publicist, for “official documents and information that would incriminate Hillary and her dealings with Russia.” But Goldstone was not actually speaking on behalf of the Russian government, and the “official documents and information” he offered were, in his words, “publicist puff”—in other words, lies.
On top of the indignation over Don Jr.’s accepting the Trump Tower meeting, pundits continue to harp on the fact that Trump encouraged Russian hacking at a July 2016 news conference. But Trump’s “Russia if you’re listening” comment was clearly a joke. If some of the most damaging evidence against the Trump campaign comes via a fake private offer and a public joke, it is difficult to see how seriously we can take the demands to hold them to account.
Mueller’s resistance to appearing before Congress offers yet one more hint: It is long past time for Democrats to stop relying on him. The savior figure was a role that Mueller did not deserve and could not fulfill. His tenure as FBI director included promoting the Iraqi WMD hoax and presiding over the mass arrest of hundreds of Muslim immigrants after 9/11. In his current post, Mueller was expected to validate a nonexistent Trump-Russia conspiracy and bring Trump’s presidency to an end. The best he could do was return a series of indictments of Trump associates on unrelated charges.
This is the background that Democrats have to grapple with as they decide whether to continue the investigation that Mueller has closed, or even intensify it with the opening of an impeachment process based on his report. Like Mueller, they too face political pressures, but unlike Mueller, those pressures are self-generated and carry political consequences—including whether or not they keep their jobs in 2020. It was Democratic leaders who chose to promote a conspiracy theory that Trump colluded with Russia and make it the centerpiece of the #Resistance. It is true that they now have to answer to their riled-up base, but it is equally true, and arguably more pressing, that they will soon have to contest a presidential and congressional election.
Success in 2020 will depend on Democrats’ ability to win over voters who either selected Trump in 2016 or who remain on the sidelines today. At this juncture, it is difficult to imagine that enough voters in swing states will choose the opposition party that prioritized a Russia conspiracy investigation that found no Russia conspiracy and an obstruction investigation that failed to reach a conclusion. Polls continue to show that Trump’s approval ratings remain steady in the aftermath of Mueller’s probe. Perhaps most significantly, voters continue to care very little about the Trump-Russia saga compared to issues that materially affect their lives. Meanwhile, Mueller has not only completed his investigation but has made clear that he does not want to take part in the ensuing political dogfight. After spending two years counting on Mueller to deliver, those who profess to care about defeating Trump may wish to focus their energies elsewhere.