The Resurrection of Racism and the Erection of a Wall Part V: Mueller versus Mueller

It was 5:30 a.m. on Bowen Island near Vancouver when it was 8:30 a.m. in Washington when the Mueller hearings started. What follows is my impressions of the hearings. It is not derived by consulting the opinions of others, though I did have recourse to the transcript of the hearings to check my impressions and insert quotes where relevant. Since I supplemented but did not change what I had perceived, I felt that I had fulfilled my objective, an objective that never claimed to be comprehensive but impressionistic.

I would be remiss if I did not comment on the questioning and testimony of Robert S. Mueller III yesterday before the House Judiciary and Intelligence Committees. On the other hand, I suspect my views will largely echo those of reasonably objective viewers of the proceedings. However, though the hearings were intended to bring the contents of the Mueller Report to the attention of the public, I cannot see that they could have much effect, except in a most general way, since a detailed understanding of both the report and the political context seemed to be a prerequisite to following the questions and responses. My initial impressions concern style rather than substance, but perhaps, in this case, style may be more important than substance.

Mueller’s Demeanor

  1. There was a contradiction between the Mueller we saw giving testimony before Congress and his illustrious record as a Marine who was awarded a Purple Heart and the Bronze Star for Valor in Vietnam and in his service to the justice system of the USA, including serving as Director of the FBI that both Republicans and Democrats noted.
  2. Mueller was unimpressive; he did not know that he served under Reagan rather than Bush Sr.
  3. On a number of substantial matters, he was excruciatingly vague.
  4. His need to consult text all the time suggested that he did not know the report.  
  5. His demeanour fed into a narrative that his staff rather than he was in charge.  
  6. He stumbled over a key word – exculpate.
  7. He sometimes seemed confused and hesitant, but in the afternoon testimony he was clearer and more forceful.

Mueller Content

  1. In avoiding speculation, especially about motives of actors, testimony that compromised investigations underway, and testimony that revealed internal discussions, investigative information, deliberations and decisions within the Justice Department, Mueller set forth clear boundaries for his testimony, which he introduced at the beginning and which he repeated many times during the day to explain why he would not answer a question. Mueller was, at one and the same time, very clear about the boundaries of his probe while also inadvertently giving the impression of being evasive.
  2. The impression left was that Trump had stonewalled and delayed Mueller’s taking out a subpoena to force him to testify by running out the clock and making Mueller choose between pushing the issue and getting a court case going that would delay the publication of the report and run into the election or give up on the effort to get Trump to testify. Mueller chose the latter course of action and left the impression in me that he had been flummoxed by Trump.
  3. Mueller was very successful in conveying the conclusion from all the intelligence agencies that Russia extensively, intentionally and massively in a multipronged approach not only tried to intervene in the American election “in a sweeping and systematic fashion,” not only at the Presidential level in favour of Trump, but at other levels as well.
  4. Mueller was also vociferous that those efforts were continuing, were being imitated by other countries and that the American Congress had to be far more proactive in countering the threat.
  5. Mueller was clear, except at one point where he had to catch himself, that he could not come to a conclusion that the president was guilty of obstruction of justice because the Office of Legal Counsel (OLC) had determined that a sitting president cannot be indicted. But neither did he conclude that he was not guilty, though he presented a horde of evidence of obstruction of justice.
  6. When asked by a Republican, who had served in the military as a prosecuting attorney and a judge, how he could offer evidence to the public of possible guilt when he could not indict since doing so contradicted the ethics of prosecution, Mueller initially fumbled but eventually made somewhat clear that this was a special case of an inquiry into the president’s conduct in part, where an indictment a priori was not permitted, but where he was given the responsibility and the authority to present the evidence.

Republicans

  1. The Republican attack dogs that tried to shift the discussion to the missing emails, to Clinton, to the Steele Dossier, but especially to the Democrats commissioning the research that they claim instigated the inquiry, looked, frankly, stupid, but their efforts will be used to reinforce the belief that the Mueller Inquiry was a witch hunt, a claim Mueller dramatically denied. Mueller was very clear from the beginning that he would not and could not address questions “about the initial opening of the FBI’s Russia investigation which occurred months before my appointment or matters related to the so-called Steele dossier. These matters are subject of ongoing review by the department. Any questions on these topics should, therefore, be directed to the FBI or the Justice Department.”
  2. In the backdrop of this line of inquiry can be found the narrative that Mueller was a member of the Deep State that controlled all the intelligence services and that collectively were involved in an effort to protect the FBI and the national surveillance system held to be guilty of high crimes and misdemeanours for gathering information on private individuals.
  3. Other Republicans who flattered Mueller, but tried to catch him out on legal issues and apparent contradictions, did much better – for example, that the Report itself defines collusion as virtually identical with conspiracy and, hence, if there was no actual conspiracy proved, i.e. preplanned cooperation with malevolent intent, the implication was that Trump was and is correct in insisting that there was no collusion; Doug Collins, the ranking Republican on the Judiciary Committee, effectively led this line of inquiry.
  4. Though there was a plethora of evidence of attempts to obstruct justice, Mueller asserted that there were no efforts to interfere with the inquiry itself, in particular by the Attorney General, William P. Barr.
  5. Though Mueller confirmed that Barr’s summary of his report did not reflect his own summary, he seemed very reluctant not only to ascribe motives for the difference, but even to specify in any detail what those differences were.  
  6. Republicans were clearly divided between those who claimed the inquiry was a witch hunt by the Deep State and those who took a broader view. The ranking Republican on the Judiciary Committee, for one, seemingly endorsed the conclusion of the Mueller Report that Russians intervened in the American presidential election, “accessed Democrat servers and disseminated sensitive information by tricking campaign insiders into revealing protected information,” but he also crossed the line and clearly signalled that he believed there was a bureaucratic conspiracy at the highest levels of the American government that led to the harassment of private citizens and the president.
  7. Republicans were very effective in pointing out that it was NOT the responsibility of the investigation to find Trump innocent because that was not part of the mandate and the foundation of any prosecution is the presumption of innocence. It would seem that the inquiry could neither indict the president nor exonerate him – in spite of Donald Trump’s insistence that he was exonerated.

Democrats

  1. Both Jerrold Nader, who chaired the House Judiciary Committee, and Adam Schiff, who chaired the House Intelligence Committee, were impressive in running the committees and providing summaries of key points of the testimony.
  2. The Chair of the Judiciary Committee noted that, over the course of Mueller’s investigation, he had obtained criminal indictments against 37 people and entities, including securing the conviction of President Trump’s campaign chairman, his deputy campaign manager, his national security adviser and his personal lawyer, among others. The Chair was very effective in painting a portrait of a president who surrounded himself with felons.
  3. The Chair noted that in the Paul Manafort case alone, Mueller recovered as much as $42 million, so that the cost of the investigation to the American taxpayers was zero and undercut the Republican repeated claim about the thirty plus million dollar cost of the Mueller inquiry.
  4. The practice of yielding time to the Chair ended up allowing the Chair more time to summarize and other Democrats in a row to question near the end to leave a Democratic dominated narrative as the last message of the hearing.
  5. The distribution of topics among the representatives was very well done.
  6. Many of the Democrats were very impressive in their questioning and in getting on the record and out to the public many of the conclusions of the Report.
  7. Trump met numerous times with Putin after he was elected and kept up efforts to advance his own business interests with the clear implication that Trump might have been motivated by both financial interests as well as possibly or potentially being blackmailed by the Russians. Those meetings began at the G-20 in a two hour confab with others present and then followed up at the same G-20 later with a private conversation for an hour with only a Russian translator present.
  8. One moment that lit up my interest was when Ted Lieu asked about Trump’s written answers to the questions Mueller posed to him; Mueller went beyond what was said in the report that Trump’s answers were evasive and vague but were also “untruthful.” Though Mueller half took back that answer in the afternoon, since he only wanted to assert what was in the report and insisted that he had only concurred that Lieu’s paraphrase was “generally” correct, the reality is that the message of the “untruthfulness” of Trump remained.
  9. Mueller was very clear that Report did not exonerate Trump and did not conclude that he was not guilty of obstruction of justice that included an obstructive act connected to an official proceeding and motivated by a corrupt intent.
  10. Volume 2, p. 7 of the report stated that when the president became aware that his own conduct was being investigated in an obstruction of justice inquiry, “the president engaged in a second phase of conduct, involving public attacks on the investigation, non-public efforts to control it, and efforts in both public and private to encourage witnesses not to cooperate with the investigation.” 
  11. Another interesting exchange took place over the discussion of WikiLeaks when Trump was quoted as repeatedly praising WikiLeaks but the Report concluded that the spread of information by WikiLeaks was under the auspices of the Russian intelligence services and that its efforts were treasonous.
  12. The Democrats successfully made the point that if Trump were not president, he would be charged with perjury by a prosecuting attorney for many of outright lies.
  13. The evidence of Trump’s attempts to obstruct justice was overwhelming. The ten incidents documented “public attacks on the investigation, non-public efforts to control it, and efforts in both public and private to encourage witnesses not to cooperate.” 
  14. One item outstanding for me was the repetition of the material in the report that Donald McGahn, White House Counsel, had been instructed to arrange for the firing of Mueller, but McGahn packed his bags to resign over the issue and only then did Trump relent.
  15. What was entirely new to me was that, if the president were to be defeated in 2020, he could be indicted for obstruction of justice as a private citizen but if re-elected, he possibly could not be indicted because of the statute of limitations.

On Impeachment

According to the report, “The Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrong doing,” That process is a congressional impeachment. Would I impeach Trump based on what I heard? I have been hesitant to offer an answer thus far. Now I would answer, “Yes.” Not because it would be successful in convicting Trump. I would do so in spite of the fact that such efforts would be used to energize Trump’s base. I would do so to uphold the principle that a president who is a liar, who appears to be in the service of an enemy foreign power, who systematically tried to obstruct justice, should be impeached in principle otherwise the principle of holding the president accountable to Congress would be surrendered to President Trump’s autocratic view of the Constitution, in particular Article II, that Trump claims allows him freedom to do whatever he wants. As the chair of the Judiciary Committee stated in his opening remarks, “there must be accountability for the conduct described in your report especially as it relates to the president.”

I do not know whether impeachment would be counter-productive and undermine the effort to defeat Trump in the coming federal election, but sometimes principles are far more important than political considerations.

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