Congressmen Jerry Nadler and Adam Schiff, respectively the heads of the House Judiciary Committee and House Intelligence Committee, have seemingly let their obsessive anti-Trumpism get the better of them. They appear determined to hoodwink the American people into thinking that despite the failure of Special Counsel Robert Mueller’s Report to find criminality on the part of President Trump or his presidential campaign – not collusion, not obstruction of justice – somehow the now civilian Mueller could mitigate that result with his personal take on the investigation and conclusions.
So they have subpoenaed Mueller to compel him to testify about the report and underlying investigation before their committees, back-to-back. The hearings are now scheduled to take place on Wednesday.
We should not be fooled. This is not only a sophomoric frolic they’re on, but it is a perversion of the notion that we are a nation of laws.
For one thing, both Nadler and Schiff seem to seize every opportunity to declare that their purpose in hearing from Mueller is to expose the American people to the truth. They assert that allegedly incriminating “evidence” uncovered by the Mueller investigators was either ignored in the final report or obscured by Attorney General William Barr’s allegedly misleading spin contained in his pre-release four-page summary. They also claim that the Barr’s summary deceived the public as to the report’s legal conclusions. And Nadler/Schiff maintain that the Mueller team was also guided by the Department of Justice regulation that prohibits sitting presidents from being indicted and that Trump was effectively allowed to remain above the law.
Yet congressional hearings are typically part of an inquiry into whether there is a need for legislation on this or that issue and on what it should contain, not on an effort to educate the public. Moreover, the Mueller Report is out there for all to see, so that there is already an available counterweight to what the Attorney General wrote, if one were required.
But there are also more serious problems with the Nadler/Schiff caper. Both lawmakers make much of the report’s failure to come to any conclusion about whether the president engaged in obstruction of justice saying the relevant evidence was not compelling either way. Nadler/Schiff and their cohorts maintain that this non-conclusion is damning of the President. They cite the report’s statement that if the special counsel’s office “had confidence that the president clearly did not commit a crime” the report “would have said so.”
Yet this turns the issue on its head. In our legal system, in the absence of compelling evidence – that is, evidence of guilt beyond a reasonable doubt – a presumption of innocence governs. So the president is correct when he insists says that he was “exonerated.” The lack of compelling proof of innocence was not dispositive; however, the lack of compelling evidence of guilt certainly was.
Even more fundamentally, Mueller is now no different from the rest of us and his views on the investigation are no more relevant or weightier than ours. To be sure, during his tenure as special counsel he had the authority to take and interpret evidence, construe applicable law to determine probable cause of violations. But all of that ended the moment his appointment ended. Thus, all that earnest talk by Nadler and Schiff and in the media that Mueller should be questioned on whether he thinks specific pieces of evidence are indicative of obstruction is beside the point. We can read his work product and opine on it, too.
The record is now closed and it would be improper to ask him to reopen it. Indeed, Mueller himself said in his only public statement about the report that “[I]t is important that the office’s written work speak for itself.
We are not unmindful that the Muller Report dashed the hopes of most Democrats that a “smoking gun” would be uncovered and provide the means to remove Trump from office. This did not happen and so other means are being employed. But we should see the current Muller hearings for the rankest form of partisanship that they are.