WASHINGTON — For the last two years, Special Counsel Robert Mueller has allowed his work to speak for him. On Wednesday, when he finally stepped to the podium to speak to the American public, he suggested that neither Congress nor Attorney General William Barr had read that work closely enough.
Mueller used his first and only press conference on the subject to highlight the passages of his book-length report that have been fiercely debated in the five weeks since its release. Namely: Charging Trump with obstruction of justice was never on the table — despite what Barr said — and now, any further action is up to Congress.
In a brief, understated appearance, Mueller gave voice to his 448-page report, emphasizing that he would have cleared Trump if the facts had allowed him to do so. He also made clear the limits of his power as a prosecutor, pointing out that the Constitution lays out another mechanism for holding presidents accountable — impeachment — without explicitly using the i-word.
Many Democrats and independent legal experts interpreted Mueller’s remarks as an unequivocal call to action.
“He basically implored Congress to act,” said Mimi Rocah, a former prosecutor for the Southern District of New York. “He stressed that obstruction of justice crimes strike at the heart of our justice system.”
Influential Democrats signaled they got the message, including Rep. Jerrold Nadler, chairman of the body that formally holds responsibility for launching any impeachment proceedings against Trump, the House Judiciary Committee.
“Given that Special Counsel Mueller was unable to pursue criminal charges against the President, it falls to Congress to respond to the crimes, lies and other wrongdoing of President Trump — and we will do so,” said Nadler said Wednesday, accusing both Trump and Barr of “lying” about Mueller’s findings.
Breaking with Barr
In many ways, Mueller’s remarks Wednesday amounted to a clear break with Barr, who has played an outsized role in shaping public perception of the special counsel’s findings. Before the report was even released, Barr insisted that the evidence amassed by Mueller’s team was insufficient to prove that Trump committed a crime.
Mueller offered a decidedly different summary of his report, which amounted to: It’s not within my power to charge the president with a crime.
Mueller spent a good portion of his brief appearance explaining this limitation and how it factored into his decision not to charge Trump with obstruction of justice, despite presenting evidence that hundreds of former prosecutors have said would normally be sufficient to bring charges. He emphasized that he was blocked from charging Trump with a crime by a standing DOJ policy, dating back to 1973, that forbids indicting a sitting president.
“The Special Counsel’s Office is part of the Department of Justice and, by regulation, it was bound by that Department policy,” Mueller said. “Charging the President with a crime was therefore not an option we could consider.”
“Mueller knows his findings have been lied about and twisted and he is worried that the American people still do not understand what the report found”
Mueller’s statement also directly challenged Barr’s insistence that Mueller’s decision not to charge Trump didn’t rely solely on the DOJ opinion. But if there was any other rationale, Mueller had the opportunity to say so Wednesday — and he didn’t.
Instead, Mueller noted that since he couldn’t charge Trump, it would be unfair to accuse him of a crime — while pointing out there are other mechanisms for dealing with a lawless president (ie, impeachment).
The implicit conclusion from Mueller’s report and remarks on Wednesday should be that Trump did indeed engage in obstruction of justice, said Patrick Cotter, a former prosecutor who once worked alongside Mueller’s top deputy, Andrew Weissmann, in the Eastern District of New York.
“Mueller knows his findings have been lied about and twisted and he is worried that the American people still do not understand what the report found,” said Patrick Cotter, a former prosecutor who once worked alongside Mueller’s top deputy, Andrew Weissmann, in the Eastern District of New York. “Today was his effort to fix that.”
And while the special counsel’s surprise statement inspired more Democrats in Congress to push for impeachment, Cotter said he thinks Mueller still hasn’t done enough to explain the gravity of his findings to a wider audience.
“Tragically, I fear his effort was insufficient to the crisis,” Cotter said. “I believe a straight ahead and non-legalese statement that the investigation found lots of evidence that the president engaged in the very serious crime of obstruction is what is needed. We did not get that.”
Instead, Mueller’s speech appeared to have been geared toward a specific audience: Congress.
Your ball, Congress
Mueller pointed out there’s another avenue for handling criminal behavior by a president, without directly spelling out that he was talking about impeachment.
All he said was: “The Constitution requires a process other than the criminal justice system to formally accuse a sitting President of wrongdoing.”
Yet from Mueller, the man who spent 22 months investigating Trump without speaking a single word to the press, that cryptic sentence amounted to a call to action, according to both members of Congress and legal observers who have followed his work closely.
“Mueller emphasized that he could not charge a sitting president, and that there is another mechanism for holding presidents accountable,” said Barbara McQuade, Detroit’s former U.S. Attorney. “That mechanism, of course, is impeachment.”
House Speaker Nancy Pelosi has so far been reluctant to launch impeachment proceedings against Trump, suggesting that Trump is goading Democrats to try to impeachment with the belief that Senate Republicans will block the effort and the resulting dispute will fire up his base.
Yet Mueller’s message clearly resonated with some members of Congress on Wednesday, including with Rep. Justin Amash, the only Republican member of Congress to call for Trump’s impeachment.
Mueller “turned the investigation over to Congress to do our job,” tweeted Rep. Pramila Jayapal, a Democrat from Washington state and member of the House Judiciary Committee.
Rep. Adam Schiff, the California Democrat who heads the influential House Intelligence Committee, called Mueller’s remarks “a direct rebuke of Attorney General William Barr — who deliberately and repeatedly misled the American people.”
“The subtext of his statement was: The ball is completely in Congress’ court”
Mueller “made clear that, because of the department’s own policy, it is left it to Congress — not the Attorney General — to evaluate and further investigate the president’s misconduct,” Schiff said.
Yet while he promised to hold Trump accountable, Schiff didn’t spell out how Congress plans to do that.
Democrats have hoped that Mueller would step forward to deliver testimony in hearings led by the House Judiciary Committee. But on Wednesday, Mueller suggested any such testimony from him would be restricted to reiterating what’s in the report.
“I hope and expect this to be the only time that I will speak about this matter,” Mueller said. “There has been discussion about an appearance before Congress. Any testimony from this office would not go beyond our report. It contains our findings and analysis, and the reasons for the decisions we made. We chose those words carefully, and the work speaks for itself.”
The message was not just that Congress has the responsibility to hold Trump accountable for any crimes he may have committed — it was also that Mueller doesn’t see himself having a further role in that process, said Jens David Ohlin, vice dean of Cornell Law School.
“The subtext of his statement was: The ball is completely in Congress’ court,” Ohlin said.
Cover: Special Counsel Robert Mueller speaks at a press conference at Department of Justice in Washington, District of Columbia on Wednesday, May 29, 2019. Credit: Ting Shen / CNP | usage worldwide Photo by: Ting Shen/picture-alliance/dpa/AP Images