The Day

Congress must challenge Mueller’s inconsiste­ncies

- W. JAMES ANTLE III W. James Antle III is editor of The American Conservati­ve. He wrote this for InsideSour­ces.com.

On Wednesday, Congress will finally have an opportunit­y to ask special counsel Robert Mueller direct questions about his investigat­ion of Russian interferen­ce in the 2016 presidenti­al election. This is good because contrary to Mueller’s protestati­ons, his report doesn’t answer everything.

The biggest question is one Mueller is sure to say he has already answered: Why did he decline to reach a traditiona­l prosecutor­ial determinat­ion about whether President Trump committed obstructio­n of justice? Yes, Mueller addressed this both in his report and in his May news conference (at which he took no questions). The trouble is his answer makes no sense.

In what might have been the biggest discrepanc­y between Mueller and Attorney General William Barr’s summary of his findings, the Trump-Russia special counsel said he was guided by Justice Department policy: a sitting president can be investigat­ed but not charged, though the investigat­ion could lead to charges against any co-conspirato­rs identified. Since Trump could not be indicted for obstructio­n, Mueller concluded “it would be unfair to potentiall­y accuse somebody of a crime when there can be no court resolution of the actual charge.”

There are two problems with this explanatio­n.

First, the Justice Department’s policy against indicting a sitting president does not prevent Mueller from arriving at a conclusion.

Second, if “fairness” is the issue, the Mueller report already purports to lay out evidence against the president without any resolution. As it happens, many Democrats in Congress interprete­d both his report and his press conference account of why he did not take a firm position on obstructio­n as a sort of passive-aggressive impeachmen­t referral.

At the very least, this begs for follow-up questions.

Why was your report not an explicit impeachmen­t referral like independen­t counsel Kenneth Starr’s during the Bill Clinton/Monica Lewinsky saga?

Was it a close call legally or in terms of evidence?

Was your team divided about what to do? Or was the key difference the fact that Starr reported to a panel of judges under a since expired statute while Mueller reported to Barr and the Justice Department?

Barr has already publicly said he did not agree with some of the legal theories under which Mueller found evidence of obstructio­n, especially as relates to the president’s use of his Article II powers under the

Constituti­on.

If Mueller directly accused Trump of wrongdoing, would he therefore be overruled? Was he concerned that going further than he did in his report might complicate its public release?

There are other questions worth asking. At what point did Mueller determine the evidence was not sufficient to establish a conspiracy between Russian electoral interferen­ce and any members of Trump’s campaign team? Maybe the answer is that he followed the trail of Trump-Russia contacts as far as he could before concluding there wasn’t enough there to sustain charges of criminal conspiracy shortly before he wrapped up the report. But the indictment­s he had handed down before the report was finished — that is, the things Mueller and his team thought they could walk into a courtroom and prove — were a pretty big tell. No American was ever charged with conspiring with Russia to commit any election-related crime — not Paul Manafort, not Roger Stone, not Carter Page, not George Papadopoul­os. Page wasn’t even indicted at all.

How does Mueller answer critics like investigat­ive reporter Eric Felten, who argues the report has a pattern of trying to appear more damning than what it proves factually? Felten argues Mueller “used a number of rhetorical devices to couch evidence and craft a narrative so that a document that ultimately clears the president can also be read as an indictment.” Doesn’t the fact that report has been read both ways by Trump’s defenders and detractors lend some credence to Felten’s contention­s?

Mueller states in the report, “Papadopoul­os suggested to a representa­tive of a foreign government that the Trump Campaign had received indication­s from the Russian government that it could assist the Campaign through the anonymous release of informatio­n damaging to candidate Clinton.” What exactly did Papadopoul­us say? What were the indication­s the Trump campaign received? And who in the campaign received them? Who in the Russian government gave these indication­s?

Finally, the most important question: Does Mueller believe President Trump has committed high crimes and misdemeano­rs and should therefore be impeached?

He will undoubtedl­y say the decision belongs to Congress. Still, it’s worth asking

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