How Mueller is making himself a symbol for elite impunity

How Mueller is making himself a symbol for elite impunity
Robert Mueller in the Oval Office on July 20, 2012. (Photo by Pete Souza.)

Special Counsel Robert Mueller resigned on Wednesday, and despite growing calls from Democrats for his public testimony before Congress, he strongly suggested that he is unwilling to do so.


"I hope and expect this to be the only time that I will speak to you about this matter," Mueller told the press from a Justice Department briefing room. “I am making that decision myself — no one has told me whether I can or should testify or speak further about this matter."

Mueller added: "The report is my testimony." As he left the room, a reporter shouted out a question about whether he would comply with a subpoena, but he refused to engage. "No questions."

Trump, Mueller and elite impunity

The decision highlights a disturbing feature of Mueller's investigation and what may be its lasting legacy: the establishment of elite impunity.

While Mueller clearly conducted a strategic, thoughtful, and rigorous investigation — and held many key individuals to account for their crimes — the most notable part of the conclusion is that the special counsel declined to recommend charges against President Donald Trump. He laid out extensive evidence and analysis of Trump's obstruction of justice on many occasions, but in light of the Justice Department's policy, Mueller knew from that start that he couldn't indict a sitting president. Instead, he said he was gathering information for either future prosecutors or Congress to assess.

But by resisting calls to testify, Mueller is making it harder for Congres to hold Trump accountable through the appropriate mechanisms. Everyone knows that his testimony would be monumental and explosive, even if he just echoed portions of the report. It could potentially drive a public push for Trump's impeachment in the way a 400-plus page report never could.

So by rejecting calls for him to testify, Mueller is actually weakening Congress's ability to hold Trump accountable. Mueller also weakens to the ability for Congres to hold Trump to account by playing bizarre word games and bending over backward to avoid accusing Trump of a crime.

Mueller went easy on Trump

He didn't have to do this. Despite the DOJ policy, Mueller could have recommended to the attorney general that Trump be indicted for obstruction of justice. Attorney General Bill Barr, of course, would have said no, but it would have sent a strong message about Trump's conduct and increased the chances that he'd face consequences.

Alternatively, Mueller could have said explicitly that he would have charged Trump were he not president, instead of leaving this claim as implicit in the report. Mueller said he couldn't do this because it would be "unfair" of him to accuse Trump of a crime without giving him the opportunity to rebut the claims in court. But this is a warped version of "fairness" that only serves to protect the powerful.

Being immune from indictment is a benefit Trump receives by virtue of holding the office of president. There's something inherently unfair about this because it gives Trump an advantage and ability to get away with crimes that no other American has. But even if we assume this unfairness is justified because of the importance of the presidency in U.S. government, it shouldn't and can't follow from this that Trump deserves another benefit, immunity from even the accusation of a crime, because of the unfair indictment immunity he already possesses. That would be like saying that it would be unfair to deprive the king of his scepter since he already has the matching crown. It's a view of fairness that is fundamentally inegalitarian and nonsensical.

To further make the point, consider this: If Trump didn't like the fact that he was charged of a crime he couldn't rebut in court, there's no reason he couldn't waive his immunity from prosecution and take to court to defend himself. The fact that, given this choice, the president would almost certainly choose not to waive his immunity, shows that it's not unfair to accuse him of a crime with charging him.

What is unfair is endorsing policies and practices that allow the powerful to get away with crimes and violations that others would be held accountable for.

Justice for some

And while it's possible Trump could face future prosecution, that's very difficult to imagine playing out. If Trump wins re-election, statute of limitation issues would come into play. Trump could try to self-pardon, which would be a constitutional mess. And a future Democratic or Republican president might decide to pardon Trump to save the country from the turmoil of a trial. Or future prosecutors might just decide for any number of reasons not to bring the case.

So while Trump's aides and friends — Paul Manafort, Roger Stone, Michael Cohen, George Papadopoulos, and others — all face or served prison time, Mueller's choices serve to help protect Trump.

It's also not helpful to Mueller's case that Donald Trump Jr. appears to have gotten away with potentially criminal activity as described in the report. In truth, I find Mueller's arguments (and apparent arguments) about not charging Trump Jr. to be persuasive; but in light of the choices Mueller is making that benefit Trump, the treatment of Trump Jr. adds to the appearance that his investigation was didn't really challenge people who were sufficiently powerful.

Exonerating Bil Barr

There's another moment in Mueller's press conference on Wednesday that feeds into the image of elite impunity. It hasn't received that much attention, but despite all the criticism Attorney General Bill Barr has received about his handling of the end of the investigation — especially for his misrepresentations of Mueller's work — Mueller seemed to let Barr off the hook.

At one point in time I requested that certain portions of the report be released,” Mueller said, referring to a letter he wrote to Barr that said the attorney general's public letter about the end of the probe "did not fully capture the context, nature and substance” of the report. “The attorney general preferred to make the entire report public all at once. We appreciate that the Attorney General made the report largely public. I do not question the Attorney General’s good faith in that decision.”

This bit about Barr's "good faith" in the process was, despite Mueller's insistence on being an apolitical figure, a political statement. Barr's handling of the probe has prompted calls for his impeachment, but with these words, Mueller seemed to be letting the attorney general off the hook.

Perhaps this is justified (though, to be clear, I do not believe it is). But this is another reason why Mueller needs to testify publicly and face lawmakers' questions. He can't claim that his testimony is simply the report and then offer comment on other matters of political debate that have surrounded the report. Certainly, if he's going to throw out some remarks about political matters, lawmakers have the right to ask him follow-up questions about Barr's conduct. And it's only fitting that they ask him these question under oath and before Congress and the public.

Mueller's freedom from scrutiny

And this brings us to the final person Mueller appears to be claiming impunity for: himself. I certainly don't believe Mueller carried out any wrongdoing — but he is acting as if he is above any public congressional review of his work. While, of course, he gets to decide what answers he gives, it's not up to him what questions he should face. He made certain choices in the investigation and in the report, and lawmakers — both Democrats and Republicans — have a right and a legitimate interest in asking him to explain the context of those choices and what his claims mean.

As a prosecutor, Mueller himself used subpoenas to force people to testify, and he explained on Wednesday that getting answers to his questions during the investigation was of "paramount importance." He was right. However, criminal investigations aren't the only matters of paramount importance. Congressional investigations can and do serve similarly vital roles.

And Congress, too, can compel people to testify. Just like anyone else, Mueller isn't immune from the oversight of these inquiries. Whatever his personal feelings about the nature of these investigations, he has an obligation to participate and — in his own words — provide "full and accurate information."

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