Democrats are trying to spin the Mueller Report as welcome news. Good luck with that. Legally, they’ve got no case left. Politically, they are making a serious mistake.
They do have some material to work with, especially the report’s second volume, which portrays a vulgar, deceitful president. The details are new, but the portrait itself is not. What’s new are some cases where the president came close to obstructing justice, according to the special counsel’s investigators. Even so, they did not say he crossed the line.
The most important news, of course, is the report’s basic findings. It clearly demonstrates Russia tried to influence the 2016 election and favored Trump, but it kills the assertion that Trump or his campaign cooperated with them. For two years, Democrats and the mainstream media said the opposite about Trump — repeatedly, loudly, insistently. To continue that attack now is ludicrous. That doesn’t mean they will retract, apologize, or return their Pulitzer Prizes. They prefer to change the subject.
Their new focus is obstruction, where the evidence is more ambiguous. The Mueller team presents 10 possible instances and made no final decision. But that, in itself, is a decision since prosecutors must ultimately choose to indict or drop the matter. There is no third choice, and they didn’t indict. Significantly, their refusal was based on the evidence, not on the Department of Justice’s long-standing legal opinion that sitting presidents cannot be indicted.
Escaping criminal charges is not exactly high praise for a president. Still, the Mueller team’s refusal to indict carries special weight because the prosecution team was stacked with Democratic donors and close allies of Hillary Clinton. That provenance shows throughout the report, which reads like opposition research, equipped with subpoena powers.
After the report was finished, the DoJ made a clear-cut decision on obstruction: no indictment. Democrats immediately slimed Attorney General Bill Barr as a political hack, doing Trump’s bidding. It is important to note, however, that Rod Rosenstein reached the same conclusion. Democrats have spent the last two years defending Rosenstein, the department’s second-ranking official and the man who appointed Mueller and supervised his team. Now, they are stuck with his decision.
The White House, naturally, claimed complete victory, despite all the damaging evidence. They make two key points about obstruction, including the troubling instance when President Trump told White House counsel Don McGahn to fire Mueller. The president, famous for firing people, never followed through. He was furious with AG Jeff Sessions’ recusal and furious with the investigation, but he did not fire Mueller and allowed McGahn to speak at length with the special counsel’s team. “Where’s the obstruction there?” the White House asks. Second, the White House provided Mueller’s team with unprecedented information, excepting only in-person testimony by the president himself. Trump handed over more than a million documents, allowed all White House appointees to testify, and never claimed “executive privilege” to withhold documents, prevent testimony, or redact the final report. Any White House trying to obstruct would have fought the investigation at every turn, as Presidents Nixon and Clinton did. Instead, Trump cooperated.
Not good enough, say powerful Democrats and their faithful media allies. After all, the Great Orange Whale is still out there, swimming and spouting. His adversaries, still fighting the last election and ready for the next one, have their harpoons sharpened and ready.
Their single-minded pursuit carries real risks for Democrats in swing districts and their 2020 presidential nominee. The general electorate wants to move on and focus on health care, immigration, inequality, opioids, and education.
House Speaker Nancy Pelosi knows that. But she cannot control the party’s activist, left-wing base, its presidential hopefuls, or its powerful House chairmen, Jerry Nadler, Elijah Cummings, and Adam Schiff. Those zealots are steering the good ship Pequod into dangerous waters.
What they are doing now is pure showmanship: smearing Barr as a partisan lackey and demanding unredacted copies of the Mueller Report. Neither will succeed. Barr is a lawyer’s lawyer. His stature and integrity tower above his critics. Remember, too, that Rosenstein signed on to the obstruction decision.
As for the report itself, the public has seen a reasonably complete version. It will see more when several current investigations end. Some parts were redacted because they reveal “sources and methods,” but Barr has indicted he is willing to show them to a small group of congressional leaders and their aides. It is unclear if Democrats will accept Barr’s offer.
Democrats are also demanding to see grand jury testimony. Only a court can order that, and then only under very limited conditions. Democrats will litigate and lose.
The debate over the Mueller Report now becomes a purely political one, and the advantage shifts to the Republicans. Yes, the Democrats and media will use the disclosures to damage the president. They have plenty to work with. But they cannot overcome the bottom-line conclusions, and they will pay a price for their obsession. Meanwhile, the Department of Justice will move on to meatier investigations of its own, implicating the highest levels of the Obama DoJ, FBI, and national security team. Senior officials there have real legal problems.
Mueller himself will have to answer hard questions about why his report ignored those failures, glossed over FBI abuses, and included a gratuitous statement that he “could not exonerate” Trump of obstruction. That statement upends a thousand years of Anglo-Saxon and Roman civil law, where prosecutors are never asked to exonerate, only whether to prosecute or decline. They should never use evidence to harm someone who is not charged. James Comey made those grievous mistakes in his July 5, 2016, press conference, damaging Hillary Clinton and perhaps costing her the election. It is stunning to see Mueller repeat them.
The report hands Democrats another harpoon, but it is not a lethal one. The Great Orange Whale still swims free. It is the frenzied sailors — the ones who began this hunt and want to continue it — who now face real peril.