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.