By Fred Lucas | The Daily Signal
Former special counsel Robert Mueller on Wednesday defended his investigation of President Donald Trump and Russia before two House committees.
“It is not a witch hunt,” Mueller said at one point in his sworn testimony before the House Permanent Select Committee on Intelligence.
He was referring to his probe of Russian interference in the 2016 election that resulted in a 448-page, partially censored report released in May to the public.
But many of Mueller’s responses were some version of “I can’t speak to that,” “That’s out of my purview,” or “I can’t answer that.”
He also asked constantly for lawmakers to repeat their questions.
Democrats on the Judiciary Committee tried to drive home the report’s conclusion that Trump wasn’t “exonerated” for obstruction of justice.
Democrats on the intelligence panel stressed that Russian election meddling was aimed at helping Trump.
But neither of these points is new. The special counsel’s report concluded that neither Trump, nor his campaign, nor any Americans conspired with Russians to influence the presidential election, but also laid out 10 matters of presidential conduct regarding the investigation that could be construed as obstruction of justice.
Intelligence Chairman Adam Schiff, D-Calif., asked: “When the president said the Russian interference was a hoax, that was false, wasn’t it?”
“True,” Mueller said.
Trump repeatedly has called political enemies’ allegations that his campaign conspired with Moscow “a hoax,” but sometimes conflates that with the Russian interference itself.
Here are eight key takeaways from Mueller’s testimony before both committees.
1. ‘Cannot’ Cite DOJ on Exoneration
With regard to obstruction of justice, the Mueller report states: “Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the president committed a crime, it also does not exonerate him”
Rep. John Ratcliffe, R-Texas, asked Mueller, a former FBI director, when the Department of Justice ever had had the role of “exonerating” an individual.
“Which DOJ policy or principle set forth a legal standard that an investigated person is not exonerated if their innocence of criminal conduct is not conclusively determined?” Ratcliffe asked. “Where does that language come from, Director? Where is the DOJ policy that says that?”
Mueller appeared not to be clear about the question.
“Let me make it easier,” Ratcliffe, a former U.S. attorney, said. “Can you give me an example other than Donald Trump where the Justice Department determined that an investigated person was not exonerated, because their innocence was not determined?”
Mueller responded: “I cannot, but this is a unique situation.”
Ratcliffe followed up by talking about the “bedrock principle” in American law of innocence until proven guilty.
“You can’t find it because, I’ll tell you why, it doesn’t exist,” Ratcliffe said, adding:
The special counsel’s job, nowhere does it say that you were to conclusively determine Donald Trump’s innocence or that the special counsel report should determine whether or not to exonerate him.
It’s not in any of the documents. It’s not in your appointment order. It’s not in the special counsel regulations. It’s not in the OLC [Office of Legal Counsel] opinion. It’s not in the Justice [Department] manual. It’s not in the principles of prosecution. Nowhere do those words appear together, because, respectfully, it was not the special counsel’s job to conclusively determine Donald Trump’s innocence or to exonerate him.
Because the bedrock principle of our justice system is a presumption of innocence. It exists for everyone. Everyone is entitled to it, including sitting presidents. Because there is presumption of innocence, prosecutors never, ever need to conclusively determine it.
“Donald Trump is not above the law, but he damn sure shouldn’t be below the law,” Ratcliffe said.
“You wrote 180 pages about decisions that weren’t reached,” Ratcliffe said, referring to the second volume of the Mueller report, devoted to evidence of obstruction of justice.
Judiciary Chairman Jerrold Nadler, D-N.Y., pushed the point in his opening question after Mueller was sworn in, saying the report specifically did not exonerate Trump of obstruction of justice.
“Did you actually ‘totally exonerate’ the president?” Nadler asked at the beginning of the hearing, quoting Trump.
“No,” Mueller responded, adding: “The finding indicates that the president was not exculpated for the acts that he allegedly committed.”
Regarding obstruction, ranking Judiciary member Rep. Doug Collins, R-Ga., asked: “At any time in the investigation, was your investigation curtailed or stopped or hindered?”
Mueller responded: “No.”
Later, to drive the point of a lack of obstruction further, Rep. Debbie Lesko, R-Ariz., asked: “Were you ever fired as special counsel, Mr. Mueller?”
Mueller began by saying, “Not that I … ” then answered more directly: “No.”
Later that afternoon during the intelligence committee hearing, Rep. Mike Turner, R-Ohio, asked about exoneration.
Mueller initially said, “I’m going to pass on that.”
When pressed on the question, Mueller said, “Because it embroils us in a legal discussion and I’m not prepared to do a legal discussion in that arena.”
Turner noted that the headline from Mueller’s morning testimony was that he did not exonerate Trump.
“You have no more power to declare Trump exonerated than you do to declare him Anderson Cooper,” Turner said, referring to the CNN personality.
2. Indicting a President
Nadler, the Judiciary chairman, asserted: “Any other person who acted in this way would have been charged with crimes, and in this nation, not even the president is above the law.”
Other Democrats said much the same during the day.
At first, during the morning hearing before the Judiciary Committee, it appeared that Mueller was contradicting Attorney General William Barr.
That impression was left hanging for well over an hour before he clarified the issue at the outset of the Intelligence hearing.
The Justice Department’s Office of Legal Counsel has issued two legal opinions, most recently in 2000, stating that a sitting president cannot be indicted. The second one reaffirmed a 1973 opinion at the height of the Watergate scandal.
Barr has stated on multiple occasions that those official opinions were not the sole reason that Mueller decided against seeking a grand jury indictment of Trump for obstruction of justice. Barr and then-Deputy Attorney General Rod Rosenstein later decided the evidence was insufficient to make a case.
During the Judiciary hearing, Rep. Ken Buck, R-Colo., asked: “Could you charge the president with a crime after he left office?”
Buck: “You believe that you could charge the president of the United States with obstruction of justice after he left office?”
Later in the hearing, Rep. Ted Lieu, D-Calif., followed up, citing the Office of Legal Counsel opinions to determine whether Trump’s being president is the only reason he wasn’t indicted.
“The reason, again, that you did not indict Donald Trump is because of [an] OLC opinion stating that you cannot indict a sitting president. Correct?”
Mueller: “That is correct.”
It wasn’t clear whether Mueller was talking about indicting Trump, or speaking about legal theory behind indicting any president under existing Justice Department policy.
Mueller tried to clarify this at the beginning of the later intelligence panel hearing, referring to what he had told Lieu.
“That is not the correct way to say it,” Mueller said in wrapping up his opening remarks. “We did not reach a determination as to whether the president committed a crime.”
3. ‘Collusion’ and ‘Conspiracy’
The first part of the Mueller report concluded there was no conspiracy between the Trump campaign and the Russian government, which meddled in the 2016 presidential campaign.
“Collusion is not a specific offense or a term of art in federal criminal law. Conspiracy is,” Collins, the ranking member of the Judiciary Committee, said. “In the colloquial context, collusion and conspiracy are essentially synonymous terms, correct?”
Mueller’s initial answer was “No.”
Collins then referred to page 180 in Volume 1 of the Mueller report, which states the two words are “largely synonymous.”
“Now, you said you chose your words carefully. Are you contradicting your report right now?” Collins asked.
“Not when I read it,” Mueller responded.
“So, you would change your answer to yes, then?” Collins asked.
“No,” Mueller said, seeming somewhat unclear.
“I’m reading your report, sir,” Collins said. “It is a yes or no answer. Page 180, Volume 1. This is from your report.”
Mueller: “Correct. And I leave it with the report.”
During the Intelligence hearing in the afternoon, Rep. Peter Welch, D-Vt., asked about evidence of collusion with Russia.
Mueller, criticized on social media and by cable news pundits for seeming a little off his game, had some trouble answering.
“We don’t use the word collusion. We use one of the other terms that fills in when collusion is not used,” he said haltingly.
Welch jumped in: “The term is conspiracy?”
Mueller: “That’s exactly right.”
“You help me, I’ll help you,” Welch said, prompting laughter in the chamber.
4. Allusions to Impeachment
Nadler, the Judiciary chairman, made what seemed like a vague reference to impeachment during his opening remarks.
“We will follow your example, Director Mueller,” Nadler said. “We will act with integrity. We will follow the facts where they lead. We will consider all appropriate remedies. We will make our recommendation to the House when our work concludes.”
Rep. Jim Sensenbrenner, R-Wis., who noted he was also a member of the Judiciary Committee during the 1998 impeachment of President Bill Clinton, asked why Mueller didn’t specify in his report whether there was impeachable conduct–as then-independent counsel Ken Starr had in his report.
“We have studiously kept in the center of the investigation our mandate, and our mandate does not go to other ways of addressing conduct,” Mueller said. “Our mandate goes to developing the report and turning the report in to the attorney general.”
Mueller, given many openings by Democrats, refused to state that impeachment was what the report means in referring to other venues to pursue evidence of obstruction of justice.
Rep. Ted Deutch, D-Fla., said Congress must do it’s duty to ensure Trump isn’t above the law. Other Democrats made similar vague comments, but most did not outright call for impeachment.
Later, Rep. Mike Johnson, R-La., asked, “Mr. Chairman, was the point of this hearing to get Mr. Mueller to recommend impeachment?”
Nadler responded: “That is not a fair point of inquiry.
5. On When He Put Conspiracy to Rest
Mueller asserted early on that he would not talk about the origins of the Russia investigation–currently under review by the Justice Department’s Office of Inspector General.
“It is unusual for a prosecutor to testify about a criminal investigation, and given my role as a prosecutor, there are reasons why my testimony will necessarily be limited,” Mueller said.
“These matters are the subject of ongoing review by the department. Any questions on these topics should therefore be directed to the FBI or the Justice Department,” he said, referring to the contested origins of the investigation.
Rep. Andy Biggs, R-Ariz., a Judiciary member, asked when the special counsel’s team determined there was no conspiracy between Russia and the Trump campaign.
Many Republicans argue that Mueller could have issued that conclusion before the midterm elections, in which Republicans lost control of the House.
“As you understand, when developing a criminal case, you get pieces of information as you make your case,” Mueller said. “When you make a decision on that particular case depends on the factors. I cannot say specifically we reached a particular decision on a particular defendant at a particular point in time.”
“We were ongoing for two years.”
Biggs pressed: “That’s my point, there are various aspects that happen. But somewhere along the pike, you come to the conclusion there is no there there for this defendant.”
Mueller finally said: “I can’t say when.”
The former special counsel said he did not have knowledge of Fusion GPS, the opposition research firm that hired former British intelligence agent Christopher Steele, who compiled the so-called Steele dossier, an unverified, salacious collection of information about Trump, including during a visit to Moscow. Both the Democratic National Committee and the Hillary Clinton presidential campaign paid for that work.
Although President Barack Obama’s Justice Department and FBI used the Steele dossier as the basis for spying on Trump campaign aide Carter Page, and the dossier is mentioned in the Mueller report, the investigation apparently did not look into its origins.
6. What Else He Didn’t Answer
Mueller declined multiple times before both House committees to answer why his team did not prosecute Joseph Mifsud, a Maltese academic who Republican lawmakers said had lied to investigators. Mifsud in spring 2016 told Trump campaign adviser George Papadopoulos that Moscow had some of Hillary Clinton’s emails.
Mueller also declined to answer questions about whether he interviewed Steele or Fusion GPS head Glenn Simpson. During the Intelligence hearing, he refused to answer whether he even read the Steele dossier.
Mueller repeatedly answered that such questions were “outside of my purview.”
Among Democrats’ questions Mueller didn’t answer: whether the Trump campaign had turned its back on the country, whether Trump told associates his 2016 campaign was an “infomercial” for the Trump businesses, what would happen if Trump wins a second term and serves beyond the statute of limitations for obstruction of justice, and whether Trump had potential illegal ties to foreign banks.
He also declined to speculate whether Russian meddling swayed the outcome of the presidential election.
Rep. Eric Swalwell, D-Calif., asked Mueller whether he agreed with an open letter in May signed by about 1,000 former federal prosecutors that said Trump would be prosecuted for obstruction of justice if he were anyone else.
Mueller responded: “They have a different case.”
Swalwell seemed a bit surprised, and asked whether Mueller would sign the letter.
Mueller again responded: “They have a different case.”
7. Defending Alleged Conflicts
Mueller responded to questions about the number of Democratic lawyers, many of whom donated to Democratic candidates, who worked on his staff.
“I’ve been in the business for almost 25 years, and in those 25 years I have not had occasion once to ask someone about their political affiliation,” Mueller said at one point. “What I care about is the capability of the individual to do the job.”
Trump has said several times that after he fired James Comey as FBI director, he met with Mueller, who wanted the job back.
Mueller testified that he talked to Trump, but “not as a candidate” for the job, in response to a question from Rep. Louie Gohmert, R-Texas.
Rep. Greg Steube, R-Fla., later asked: “Did you interview for the FBI director job one day before you were appointed as special counsel?”
Mueller said he was only advising Trump.
“My understanding, I was not applying for the job. I was asked to give my input on what it would take to do the job,” Mueller said.
He also defended Clinton supporter Andrew Weissmann, a lawyer on his team and one of the hires Trump and other Republicans criticize Mueller for.
“Let me say that Andrew Weissmann is one of the more talented attorneys we had on board,” Mueller said.
8. Trump’s Responsibility and ‘New Normal’
Rep. Mike Quigley, D-Ill., brought up Trump’s tweeted support of WikiLeaks and its hacking of Clinton campaign staff emails. He quoted Trump as a candidate saying, “I love WikiLeaks” and tweeting similar sentiments, then asked Mueller for his response.
WikiLeaks is an online operation that made its name on releasing confidential and secret government information
After hesitating, Mueller said: “Problematic is an understatement in terms of what it displays in terms of giving some, I don’t know, hope or some boost to what is and should be illegal activity.”
The Mueller report said the Trump campaign was aware of Russian election meddling and expected to benefit from it.
Welch, the Vermont Democrat and member of the intelligence panel, said he was concerned that Trump may get away with not reporting Russian interference in the future.
“If we establish the new normal for this past campaign that is going to apply to future campaigns, so that if any one of us, running for the U.S. House, any candidate for the U.S. Senate, any candidate for the presidency of the United States are aware that a hostile foreign power is trying to influence an election, has no duty to report that to the FBI or other authorities …, ” Welch began to ask, before Mueller interrupted.
“I hope this is not the new normal, but I fear it is,” Mueller said.