Tuesday, July 23, 2019

Robert Mueller's Testimony Should Be Unnecessary; It Could Be Harmful; Use it to Open Impeachment Inquiry

by Michael C. Dorf

Tomorrow's scheduled appearance of Robert Mueller before Congress will be covered breathlessly by the media but will likely be unenlightening and unimportant. I base that assessment on the following: (1) Mueller has already made clear that he does not intend to say anything that's not in his Report; (2) that rules out an answer to the one question to which his answer could possibly move the needle on public opinion--whether, absent the DOJ policy he followed barring indictment of a sitting president, Mueller would have concluded there was sufficient evidence to charge Trump with  obstruction of justice; (3) absent new revelations, which (1) forecloses, the Senate will not remove Trump even if the House were to proceed to impeach him; and therefore (4) the public hearing holds substantial risks for Democrats.

After explaining the logic of (1) - (4), I'll suggest that (5) Democrats can mitigate those risks and maybe even benefit by playing their cards right.

In light of (1) - (4), one might wonder what the point of the hearing is. The naive answer is that Mueller might answer the obstruction question after all. If so, I'll confess error. Let's assume Mueller declines to answer. What then is the point?

The leading answer I've heard has to do with -- how to put this delicately? -- the fact that AMERICANS DON'T READ ANYTHING ANYMORE. The theory goes that very few people have read the Report, so that even if all they hear or see is Mueller agreeing that certain things in the Report are in the Report, that could make a difference, because things aren't real until they're on tv.

Take, for example, Trump's instruction to then-White House Counsel Don McGahn to fire Mueller, McGahn's refusal, his threat to quit, a story in the NY Times reporting all of that, and then Trump's unsuccessful efforts to pressure McGahn to lie by denying the Times story. It's all right there on page 113 of Volume 2. Yet Trump has denied it all, saying (among other things) that McGahn lied to Mueller to make himself (McGahn) "look like a good lawyer." Trump's denial is not credible, right?

Well, obviously it's not credible. It's a statement by Donald J. Trump. But who, exactly, will be moved by a member of Congress getting Mueller to confirm that yes, indeed, McGahn told his team that Trump asked McGahn to fire Mueller and then pressured McGahn to lie about it? People who already know that Trump is lying . . . already know that he's lying. People who believe Trump's denial will see nothing new here. So for the strategy to work, there must be some people -- let's call them Low Information Centrists (LICs) -- who hadn't yet heard the McGahn story or the stories of the other damning episodes spread across both volumes of the Report.

There is no reason to think that more than a tiny number of LICs will watch Mueller testify. I would venture that most LICs are not much interested in politics; if they were, they'd likely have stronger views. Still, some LICs will get some exposure to the hearing from the news or perhaps via social media from more politically engaged friends or family. I have a very hard time believing that anything they see or hear will affect many LICs.

Indeed, given the ratings game in both traditional media and social media, the sorts of clips from the hearings that are most likely to generate views will be the most dramatic but not the most important moments. Mueller simply agreeing that something in the Report is in the Report or reflects his view of the evidence won't be very dramatic. What will be? Angry Republican Congressmen talking about witch hunts. And perhaps an exchange between a frustrated Democrat and Mueller refusing to commit himself on whether he would have charged Trump were Trump not president.

So bottom line: Don't expect serious movement in public opinion based on the hearing.

Accordingly, I anticipate tomorrow's hearing with something like dread. To my mind, there are two main risks for Democrats. One is that it might actually help Trump with the public. I expect Trump's minions and Republicans in Congress to spin the hearing as vindicating Trump by not revealing anything new. Confirming that the president welcomed Russian interference in our election and actively sought to undermine a criminal investigation ought to make a difference. But so much that ought to happen doesn't.

A second risk is a further fracturing of the Democratic Party into pro-impeachment and anti-impeachment factions. Activists (almost exclusively from safe seats) will see in the powerful evidence of Trump's actions his manifest unfitness for the office he holds and demand his impeachment. Moderates and the party leadership will continue to fear backlash and resist. This ongoing rift could undercut Democrats' ultimate ability to come together to defeat Trump and other Republicans in 2020.

Is there a way out? Maybe. I construe recent statements by Reps. Jerry Nadler and Adam Schiff as laying the groundwork to use Mueller's testimony as the basis for a formal impeachment inquiry without necessarily committing to impeachment at the end of the road. Opening the inquiry would provide a very strong legal basis for the House to succeed in court in ongoing battles over subpoenas. And given that Mueller will likely be unforthcoming with more particular facts he uncovered, Nadler (who chairs the House Judiciary Committee), Schiff (who chairs the House Intelligence Committee), and Rep. Elijah Cummings (who chairs the House Oversight Committee) should be able to use the hearing to justify further investigations by Congress that could themselves potentially change public opinion.

That, at any rate, is the best-case scenario. I fear that a more likely scenario goes like this: following the hearing Trump's enablers double down on "that's finally over," Trump doubles down on "No collusion, no obstruction, witch hunt," and the media become distracted by Jeffrey Epstein or a debate over just how racist Trump's latest Tweet was.


Greg said...

I imagine, if they were willing to do so, the Democrats could ask a DIFFERENT question than the one Mueller refused to answer.

After a bit of necessary grandstanding where they establish obstruction of justice as a crime against the American people, this would be the question I would ask.

You've established that because in your opinion a sitting president cannot be indicted, you will not express an opinion on whether or not President Trump's actions constitute obstruction of justice, because the President would not have access to the courts in order to defend himself, correct?

That is correct.

Given that the courts are not available to President Trump to defend himself, do you feel that, barring political considerations, there is sufficient evidence that an impeachment inquiry would be an appropriate forum for the President to defend his actions, which we have already established, if guilty, would constitute crimes against the American people?


The point is, Mueller's excuse for not answering the question about indictment is that he didn't feel that Trump would be able to defend himself. By framing the question in this way, Mueller doesn't have that dodge anymore, because impeachment hearings are the constitutionally established way to punish a sitting president. If this is the first time the Democrats use the word impeachment, you can bet this answer will be on the news, regardless of how it goes.

Now, I agree that Mueller will likely again dodge the question, but it's something that was outside the scope of his investigation, but for which he could reasonably be considered an expert. There are a number of follow-ups that could be used to try to guilt or force him into actually expressing an opinion, although I suspect Mueller wouldn't fall for them.

Shag from Brookline said...

I've been trying to work a parody of the song "Billy Boy" to reflect the relationship between Trump and AG William Barr as it relates to issues involving the Mueller Report. All I've come up with is this beginning:

"Won't you be my Roy Cohn, Billy Barr, Billy Barr ...."

I have a case of poetic block and seek assistance with this starting theme.

News reports reveal efforts by DOJ to caution Mueller on his testimony. Is AG Barr acting more as Trump's personal attorney than serving the American public and democracy?

Frank Willa said...

Professor, thank you for these observations and cautions. I concur that there are pitfalls for the Democrats; and they should be careful and precise in their questions. I would like to add my opinion that Mr. Mueller has opened the door to answering questions that are beyond his stated limitation to his written report. When he appeared for his public statement before the press, some weeks after submitting the report, he made comments that I view as going beyond his report. First, my recollection is that he made a declarative statement, in part, that "indicting a sitting President is unconstitutional". There is no such statement in the Constitution, nor is there any Supreme Court case holding that as a matter of law. My take on this is that it is appropriate to ask him to explain this post filing of his report statement. Next, in this appearance he indicated that because of the DOJ policy against indictment that he decided, as he started out, to proceed in his investigation wherein he would not take a "normal prosecutorial" pathway that would gather facts, determine relevant law, and make a determination if the law had been transgressed, and assess if the case could be made beyond a reasonable doubt. Only after that would the DOJ policy, determine his nest step. Again, it seems that he should explain how he came to this notion, if it is contrary to his charge as Special Counsel, and who else, if anyone, did he discuss this with, or gave him approval to proceed as he did. In my view these topics he opened voluntarily, in his prepared statement to the press, provide the committees with a basis to compel him to answer to questions that are beyond the written report.

Shag from Brookline said...

Trump spoke to a group of conservative teens today. In the course of the speech, he stated that Article II of the Constitution provides him the power to do whatever he wants as president. During the 2016 campaign candidate Trump stated that he could shoot someone on Fifth Avenue and he would not lose his supporters. As president could trump do that under Article II? And not be indicted?

Joe said...

I read the report. The second half has some fairly smooth reading parts. Up to a point. The first part is harder going though the basic details are quite striking. Then, there are some appendix material that are basically speaking indictments that tell a story.

I don't think the average person would read these hundreds of pages back in the day either. They can since someone with a high school education should be able to though it would help if there was more summaries.

So, I think things like this are important to put the facts out there. Might be problems, but there are without them. The actor presentation was quite good.

Joe said...

I think it went over pretty well. Will see if MD has a follow-up.