The only one who seems to be satisfied with the Mueller Report is Donald Trump, who was all prepared to release numerous memos challenging its findings until the Report exonerated him and now that is what he says the report did. He must be very relieved because he knows what he is hiding and he seems to have gotten away with hiding it. So is his 2020 campaign going to be built on the slogan “At least I wasn’t a traitor”? The rest of us found the Mueller Report unsatisfying because it didn’t answer the key question of what Trump and his people had been doing with the Russians, there having been significant events to prompt the inquiry in the first place. But Mueller, in the Report and in his follow up “clarifying” statement of last week, seems to have further muddied the waters by engaging in the mind boggling legal proceduralism that is the bane of that profession but does not bedevil the rest of us who are, God be thanked, not lawyers. Let’s look at the knots into which Mueller has tied himself.
Mueller says that he could not charge the President with a crime because the President, under Department of Justice guidelines, cannot be charged with a crime while in office and a President charged but not indicted would not have had a trail as the venue to clear himself, even though the purpose of a trial is to find a person either guilty or not rather than to give him a platform to show his true motives. What Mueller says doesn’t make any sense. First of all, If Trump had actually gone through with his boast that he could shoot someone on Fifth Avenue and gotten away with it, I am sure that the Secret Service guarding him would have taken him into custody and brought him to a local police station or down to Federal Plaza to be arraigned for a crime or otherwise held for questioning. They would not have acted as a palace guard out to protect their leader no matter what. Their oath is to the Constitution, not to Donald Trump. So maybe he couldn’t be tried, but he could be kept in confinement until a hastily assembled Congress impeached and convicted him of murder and then he could have been turned over to the civilian authorities. So a President is not beyond the reach of the law. It depends on whether the case is easy, as in a murder done in broad daylight in front of lots of witnesses, or if it is difficult, and so concerns whether contacts with the Russians constitute an impeachable offense or whether actions done under the color of legitimate Presidential actions, such as trying to get Comey to go easy on Flynn, can constitute obstruction of justice. What Mueller says about the Department of Justice guidelines holds only in certain cases and he had to decide whether or not they applied in this particular case.
Second, there is a venue where a President charged with a crime can clear his name. It is called “Congress”. The House can turn whatever Mueller came up with into an impeachment. If it refuses to do so, then the President has been cleared of any impeachable offense, though the standard the House uses is stronger than would be the case in a criminal trial in a court of law. It requires that the crime be serious enough to warrant impeachment rather than just the run of the mill shenanigans into which politicians can fall even if they are criminal according to the criminal code. So trying to get your chief counsel to falsify the record may be wrong or even criminal but not something worthy of impeachment, just as is the case of Trump’s senior staff meeting Russians in Trump Tower, the Russians there to trade information for an alteration in United States legislation. Impeachment is, as I have said before, a big deal. It is the equivalent of chopping off the head of a King, and so reserved for only very major offenses, those that subvert the Constitution, which would certainly be true if Trump could be demonstrated to have been on the payroll of the Kremlin and had turned over to them highly classified information in secret rather than just done that casually, in the full view of the press, when he told the Russian Ambassador about information he had gotten from the Israelis. Trials by jury, moreover, may be ones to which a defendant is summoned and cannot avoid, while impeachments are voluntary actions by the House of Representatives, but that doesn’t mean the House is not a place where one can be vindicated, however much that is a secondary result of the main process, which is to decide if the President should be tried by the Senate.
Mueller could also have stated his finding more forthrightly. He could have said that he would have indicted Trump except for the Justice Department guidelines, and said so without saying what those particular charges would have been. And, anyway, the purpose of his investigation was not strictly criminal. It was to get to the bottom of what was plaguing a part of the public and a part of the government, which was whether, for the very first time, a President was actually in cahoots with a foreign adversary, a possibility that had bothered the Founding Fathers enough that they had insisted that the President had to be a natural born citizen because otherwise he might be a British plant or, according to Trump, a Kenyan plant, as if Kenyans cared about anything other than just taking pride in the fact that a President’s father had been a Kenyan. So Mueller let us down by not illuminating what had been in his charge to do, which is unravel the Russian connection. Obstruction of justice, on the other hand, is not very important even if it is the fall back position of MSNBC commentators, because I side with Alan Dershowitz in thinking that there can be no obstruction if there is no underlying crime. Martha Stewart should not have been convicted of lying to authorities about insider trading if they could not prove that she had engaged in insider trading. Yes, that might have been difficult without her cooperation, but you are putting the cart before the horse when you go after the sequela rather than the crime, just as it was fast and loose to get Al Capone for tax evasion rather than racketeering.
Mueller went on to say that his Report constituted his testimony. He would not have gone beyond it if called to testify. I, for one, have many questions that remain unanswered that have to do with things that went on in his inquiry that did not surface in his report. Did Mueller get access to Trump’s taxes and what did he make of them as hiding assets gained from the Russians or a Russian front? What about Deutsche Bank? They gave Trump some questionable loans. Had Mueller tracked down who authorized them, where the money for them had come from? What parts of the Steele Memorandum, which Trump supporters incorrectly claim was the beginning of the investigation of Trump, had Mueller verified? I don’t care about the salacious parts, though that didn’t stop Ken Starr, who had nothing else to work with, but about contacts with Russian officials and quasi-officials. Those are the matters, after all, that had gotten public attention and so needed clarification or else put to rest. So we are left with the unedifying spectacle of a Report that does not shed light on the key questions that prompted it and a public that does not know what is worth pursuing, Congress rushing to try to develop the points Mueller should have before the Presidential race of 2020 heats up enough to make any further impeachment inquiry moot, in which case Trump will have run out the clock, and survived as President even if, as he has all his life, he lives under the cloud created by his financial and other shenanigans. Then there will only be a final appeal to the voters of 2020 to be rid of him, and maybe they are the “deplorable and irredeemable” lot Hillary thought they were and they will re-elect him.
I myself am waiting for a moment of clarity to break through, something that our lawyers do not seem able to provide. I hope this will come from one of the Democratic candidates who finds just the right phrases to capture the nature of the present political moment, where we have a disgraceful President supported by his party and a House of Representatives stymied by legal maneuvers and what might well constitute impeachable obstruction of justice, not those raised in the Mueller Report, but different ones, what with the White House stonewalling answering legitimate subpoenas. The Trump government has also engaged in criminally negligent care of minors in its custody, as is happening every day at our southern border, and that is criminal even if it could be argued that it is alright because it is governmental policy. Can’t a government policy be criminal? But the moment for legal action seems past. It has been played out.
The time for campaign rhetoric is not past. It can find a way to define a moment, as when Bill Clinton was “the man from Hope” who understood that it was the economy, stupid, or the smooth talking and smooth mannered Obama who would not get riled and so could be trusted to be President. So far, Mayor Pete seems to have the intellectual equipment to render unto us a singing phrase or two, but I still hope that person will be Biden, who in going after Trump as being unsuited to be President and that seems to me to be setting the right tone, and I expect that he will be able to cut through the nonsense by declaring why slow and steady leadership that understands that any President’s term is just an occasion for some incremental change before passing the torch to his successor, is the wisdom of the higher politics. We will see.