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Mueller’s Remarks Put the Onus on Congress. So What Next?

Jonathan Bernstein

(Bloomberg Opinion) -- The now-former special counsel Robert Mueller made it clear Wednesday in what he hopes to be his last word on the subject: President Donald Trump’s claim of “total exoneration” is flat-out false, and Trump’s mantra of “no collusion, no obstruction” is, especially on obstruction, the opposite of what the investigation actually found. In fact, Mueller strongly implied that Trump would have been indicted had that option been available.

And Mueller also made it clear that it’s up to Congress to take it from here – without, however, his further participation. At least if it’s up to him.(1)

Mueller’s emphasis in his statement was on Russian interference in the 2016 election. That’s what he started with and what he ended with. Make no mistake: That itself, in the context of 2019, is a rebuke of Trump, who has either denied or played down that foreign attack, and whose lawyer, Rudy Giuliani, has already openly begun shopping around for additional foreign help in the 2020 campaign. It is also a rebuke of Senate majority leader Mitch McConnell, who as Norm Ornstein notes is right now blocking a bill to fight such interference in the future.

On obstruction of justice, Mueller emphasized something that the report also makes clear: Contrary to what Attorney General William Barr claimed, the Justice Department opinion that a sitting president cannot be indicted was in fact central to how the special counsel’s office proceeded. While Mueller did not explicitly say that Trump would have been indicted had the counsel’s hands not been tied, both his statement and the report itself strongly support that interpretation.(2)

And Mueller also pointed out that the same opinion that protects presidents from indictment also says that “the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.” In other words, Mueller is pointing to Congress, and perhaps impeachment and removal.

Of course, Congress has other options: investigations and hearings, legislation, and perhaps a resolution censuring the president for his actions. But only impeachment and removal is explicitly mentioned in the Constitution as a response to presidential misdeeds – and Mueller, who appears to choose his words very carefully, mentioned the Constitution.

Democrats have been debating whether the House should impeach Trump, or even if it’s a good idea to open an impeachment inquiry. Given the situation, I’ve counseled against it (here and here). But to be clear: What Mueller reminds us is that the entire context of the debate is the understanding that hardly any Republicans in either chamber are willing to do their constitutional duty by seriously considering the evidence at hand. Anyone who pretends that the Mueller report was a “total exoneration” of the president, as House Judiciary ranking member Doug Collins did right after Mueller spoke, is ignoring the plain truth.

Even if pursued, impeachment and removal may not be an open-and-shut case. There’s most likely a case to be made for the defense. And it’s natural and normal and perhaps even healthy for the president’s party to lean toward honest defenses of the man in the Oval Office. But it’s not healthy at all for them to dismiss any evidence and to instead subscribe to absurd conspiracy theories about “deep state” nonsense. That so many Republicans in Congress do so is what causes the current difficult decision for House Democrats. Indeed, congressional Republicans who have sided with Trump in his attempts to stonewall legitimate congressional oversight have been practically begging the president to violate his oath of office, rather than pushing him to fulfill it.

Mueller reminds us all that both parties in Congress have a constitutional responsibility(3) in these kind of cases. Republican Justin Amash seems to take that seriously. Unless other Republicans join him, Democrats will have only limited options. Do Republicans really want to be the party of welcoming foreign attacks on the U.S. and ignoring evidence of serious crimes by high-ranking government officials? That’s the choice before them now.

(1) Is it up to him? A House committee could certainly force the issue by issuing a subpoena. But a fight with Mueller would do little to make the case against Trump, and so politically Mueller may have the upper hand here. In my view, the House would be better off with fact witnesses anyway, perhaps along with legal experts who could lay out exactly what is wrong with Trump’s actions – again, particularly on obstruction.

(2) It’s worth noting that the Justice Department opinion is just that – an opinion, not a constitutional fact. There’s good reason for Mueller in particular and the department in general to abide by this norm, but it is not at all clear that it is correct as a matter of constitutional interpretation.

(3) And not just on the Russia investigation. Trump’s impeachable behavior includes his refusal to abide by the constitutional rules on emoluments, and his attempts to block congressional investigations both on Russia and on other matters.

To contact the author of this story: Jonathan Bernstein at jbernstein62@bloomberg.net

To contact the editor responsible for this story: Philip Gray at philipgray@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.

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