The following was compiled with the help of Torchlight Media’s editorial staff.
On Wednesday, Special Counsel Robert Mueller stepped up to the microphone to speak to America for the first time since the report about his investigation of Russian interference in the 2016 presidential election was released (in redacted form). In his first public address since the special counsel’s investigation began, Mueller mostly reiterated the conclusions of his report, including making clear that the investigation did not exonerate President Trump on the issue of obstruction, and that Mueller refrained from bringing charges on that front due to his understanding of a 1973 Department of Justice memo which set forth the opinion that a sitting president cannot be indicted. Mueller also implied that taking up any such charges was Congress’ role, stating, “[T]he Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.”
Many see this statement as clarification that Mueller intended to leave any next steps on obstruction to the House. For example, NPR ran an article entitled, “Mueller Hands His Caseload to Congress, as Impeachment Calls Grow Louder.” Various media outlets made similar assessments.
Mueller’s statement has also strengthened calls to begin impeachment proceedings against Trump based on the evidence recounted in the special counsel’s report. In the wake of Mueller’s public address, 2020 Democratic presidential candidates Cory Booker and Kirsten Gillibrand switched from calling for more Congressional investigation to calling for impeachment. Pete Buttigieg and John Hickenlooper also changed their tune. The number of House lawmakers who favor impeachment has grown, causing even Nancy Pelosi to defensively comment that “nothing is off the table.” The lone Republican in the House calling for impeachment, Justin Amash, responded to Mueller’s Wednesday appearance with, “The ball is in our court, Congress.”
However, Mueller also used his spotlight moment to attempt to convince Americans that he need not testify before Congress, stating, “The report is my testimony. I would not provide information beyond that which is already public in any appearance before Congress.” However, the report, as well as the subsequent statements and actions of the Department of Justice and Mueller himself, still leave a significant number of unknowns, especially in the wake of the administration’s continued efforts to block the House’s investigations. But that isn’t the only reason Mueller should continue to speak publicly about his report.
In his public appearance Wednesday, Mueller rehashed the bottom-line conclusions of the report but did not review for the public any of the specific incidents or evidence that led to those conclusions. There is some truth to New York Magazine’s Eric Levitz’s cynical assessment that “virtually all Americans hate reading long documents,” and while Mueller’s speech repeatedly emphasized that everyone in America should take the Russian attempts to interfere in the 2016 election very seriously, stressed the harm caused when an investigation is obstructed and emphasized that Mueller could not say with confidence that the President of the United States did not commit acts of obstruction of justice, the special counsel arguably failed to impress his points with sufficient strength upon the large portion of his public audience who have not read Mueller’s 448-page report. Given that many Americans’ polarized understanding of the report is not based on actual knowledge of specifics, but rather on pundits’ bullet-point summations meant to twist Mueller’s findings to meet their political agendas, Mueller missed a golden opportunity to set the record straight and try to get more of the public on the same page not only as to what the report actually says, but also why it says it.
What all of this means is that, despite his protestations, Congress still has questions worth asking of Robert Mueller. The editorial staff here at Torchlight Media came up with a few Congress should consider.
1. Do you agree with Attorney General Barr’s summary and presentation of your report?
Barr’s summary, released on March 24, just two days after Barr received Mueller’s 448 page report, and twenty-five days before Barr released the redacted version of the report on April 18, claimed Mueller left the issue of obstruction for Barr to decide, and that Barr decided the evidence was insufficient to conclude the president obstructed justice. Later reporting revealed that Mueller sent Barr a letter on March 27 expressing concerns about Barr’s characterization of the report. Further, when before Congress on April 10 and April 30, Barr mischaracterized his communications with Mueller and Mueller’s team regarding their concerns over Barr’s summary. Even Mueller’s May 29 statement indicates that not only was the question of obstruction not decided by Mueller, it was also certainly not left for the Department of Justice to decide. Answers to this question could clear up some confusion and would help get to the bottom of whether Barr perjured himself in his prior Congressional testimony.
2. Would the President have been indicted if not for the Department of Justice memo asserting that a sitting president cannot be indicted?
This gets right to the heart of the matter, both as to Trump’s possible wrongdoing and the necessity of impeachment proceedings. Did the President’s conduct rise to the level of criminality? Mueller has not directly answered this question. While Mueller is likely to respond that his report says what it says, the question is still worth asking and his actual answer may be instructive.
3. Should the President be indicted once he is no longer President?
Similar to the question above, this goes to the question of possible wrongdoing while skirting around the limits of the Department of Justice memo regarding indicting a sitting president. If impeached or defeated electorally, at some point in the near future Trump may no longer be president and therefore no longer under the protection of the Department of Justice memo. At that point, should charges be brought in court on the basis of the evidence discovered in the course of the special counsel’s investigation? Again, while Mueller may merely refer back to his report, the question should be asked, and Mueller’s answer may enlighten us.
4. Do you believe Trump “fully cooperated” with the investigation?
This question relates to the issue of obstruction, including elements that may not be so obvious at first glance. Mueller’s May 29 statement discussed the importance of witness cooperation: “It was critical for us to obtain full and accurate information from every person we questioned. When a subject of an investigation obstructs that investigation or lies to investigators, it strikes at the core of the government’s effort to find the truth and hold wrongdoers accountable.” However, while the White House has claimed it fully cooperated with the investigation, it did not. For example, Trump refused a face-to-face interview with Mueller’s team. Trump’s written answers to questions were full of dodges, in the vein of Oliver North’s old chestnut, “I do not recall”, and Mueller’s team found them inadequate (Mueller report, pages 417-418). The Mueller report also outlines Trump’s numerous attempts to undermine the investigation and tamper with witnesses. Asking Mueller to characterize the president’s level of cooperation also opens up further lines of questioning regarding Trump’s personal actions regarding the investigation, including the next question below.
5. How did the lack of a direct interview with Trump affect your ability to assess the case for obstruction?
The elements of a case for obstruction of justice include evidence of criminal intent. After much negotiation, Trump gave Mueller’s team a series of written answers, but the lack of a direct, unrestricted interview with Trump would very likely have impacted the investigation’s obstruction assessments. Considering that Congress’ attempts to investigate the White House further will mostly likely have to be litigated before the courts, Mueller’s response to this and follow up questions could also provide support for arguments that Trump should be compelled to testify before Congress.
6. Why have administration officials who appear to have been complicit in attempts to obstruct justice not been charged with obstruction?
The Mueller report lays out several instances of likely obstruction, with Trump being only one of many participants. According to the Mueller report, Attorney General Jeff Sessions suggested that Trump remove FBI Director James Comey to alleviate the investigation into Russian election interference. Later, Trump instructed Corey Lewandowski to tell Sessions to limit the scope of the special counsel’s investigation in order to curb it. Lewandowski carried out his orders by asking Rick Dearborn to send the message to Sessions. While Dearborn did not send the message, Lewandowski still tried to aid Trump in obstructing the investigation. Trump changed Donald Trump Jr.’s statement about the Trump Tower Meeting to inaccurately say it was only a brief meeting about Russian adoption. White House staff were aware the statement was inaccurate, and Trump’s counsel repeatedly lied in denying that Trump played any role in drafting the statement. This is not even a complete list of figures who played a part with regard to instances of obstruction. Yet no one has suggested any of these people face any consequences for their role in attempting to derail an investigation of matters that Mueller characterized on Wednesday as being “of paramount importance.” Answering as to what decisions were made about these individuals, and why, would be helpful in understanding the full nature of these incidents, as well as Trump’s personal level of culpability.
7. At what point did you decide you would abide by the DOJ guideline protecting the president from indictment, and why did you decide not to reveal that decision to Congress or the public at any point before the release of your report?
The point here is to get at the expectations problem—Congress may not have punted on impeachment for as long as it did if it had known Mueller would just punt it back to Congress. Additionally, the public might have reacted better to the report’s conclusions under a more accurate frame of expectations along the way. Follow up questions might include asking Mueller to discuss his decisions and strategy with regard to when and how Mueller and his team have chosen to speak or not speak publicly about the investigation, both during and after its completion.
8. What would be sufficient evidence to allow an investigation to come to a positive conclusion on the existence of, and individual participation in, a legal conspiracy to interfere with the 2020 election?
The Mueller report chose not to tackle the question of collusion, stating, “collusion is not a specific offense or theory of liability found in the United States code” and determined that, for purposes of his investigation, the term should be equated with criminal conspiracy.
Mueller’s May 29 statement made clear that election interference in 2016 should concern us all. U.S. intelligence agencies continue to sound the alarm about foreign interference in the 2020 election. Already, questionable sources have attempted to smear Joe Biden by spreading stories about his son’s involvement with a Ukrainian energy company. Trump jumped on the bandwagon, suggesting the Department of Justice should investigate, and even going so far as having his personal attorney, Rudy Giuliani, plan to meet with and urge the new Ukrainian administration to investigate Biden as well. Meanwhile, Trump steadfastly refuses to take the threat of election interference seriously and has not urged the Senate to take action on House bills which aim to protect and secure our elections. Former head of the Department of Homeland Security Kirstjen Nielsen was instructed not to even bring up the subject of Russian interference in the 2020 election with Trump. In this environment, delineating what behaviour would lead Mueller to conclude that there is ongoing “collusion” or conspiracy would help Congress in its oversight role, not just in terms of Trump’s administration, but also of future US elections in general.
9. If Congress is the only body of government empowered to act on the information in this report, what justifies Congress not having access to the redacted portions of your report?
Attorney General Barr redacted the Mueller report before its release, but the special counsel has not spoken out against the redactions Barr made. In fact, in his May 29 statement, Mueller said, “[W]e appreciate that the attorney general made the report largely public. And I certainly do not question the attorney general’s good faith in that decision.” Despite the existence of a House subpoena requesting the full, unredacted report, Barr continues to withhold the report and its supporting documents from Congress. Mueller’s justification for (or criticism of) this refusal to provide information could assist in efforts to compel the full report, especially given Mueller’s position that the appropriate Constitutional remedy to address any potential criminal conduct by the president is Congress’ oversight and impeachment powers. To properly exercise those powers, at least Congress, if not also the public, needs access to the full and unredacted report.
10. Do you believe the American public fully understands what is laid out in your report? What would you say to them to try and improve that understanding?
The Mueller investigation and subsequent report were meant to provide the American public not only with answers, but also with confidence in those answers. The report should have presented a teaching moment, to better educate Americans on what is going on here, above all the noise of media pundits and partisan war cries. That has not happened. After Mueller’s May 29 statement, it was as if people had heard two different speeches: one which totally exonerated Trump and closed all investigations, and one which suggested that Congress should begin impeachment proceedings against Trump. Despite what Mueller may think, what he meant to say in his report is still unclear to a significant number of Americans. He should take the time to fix that.
Despite Mueller’s attempt to sidestep matters, far too many important questions have been left unanswered as this point. In order to perform its Constitutionally mandated oversight duties, Congress needs to call on Mueller to testify regarding his investigation as soon as possible, and if necessary compel said testimony via subpoena. Robert Mueller may believe his report speaks for itself, but that isn’t for him to decide.
Ann Anderson is a contributing writer for Torchlight and, when time permits, for her own blog on social and political topics, Strigiforms.com. She has a familiarity with the legal profession, history, and an eclectic potpourri of informational tidbits. She can be reached at firstname.lastname@example.org.