Mueller’s Testimony Was Just as Confusing as His Report

(Bloomberg Opinion) -- Questions to former special counsel Robert Mueller from both sides of the aisle in his House Judiciary Committee testimony made one thing clear: The path Mueller took in the section of his report on President Donald Trump’s obstruction of justice was indefensible — from both sides.

The most important issue in Wednesday’s hearing was the way Mueller refused to address Trump’s possible guilt based on the legal theory that because the Department of Justice couldn’t indict a sitting president, it would be unfair to conclude that the president had committed a crime. Yet Mueller couldn’t manage a coherent response to either Democratic or Republican criticisms arising from that prosecutorial decision.

Democrats walked Mueller through the elements of the crime and the report’s conclusions of “substantial evidence” of Trump’s guilt. The effect of these questions was to underscore the indisputable fact that the report very literally provided the evidence and analysis for finding that Trump obstructed justice. The only thing missing from the report were the magic words concluding that Trump’s conduct fit the statutory definition of obstruction.

Mueller was apparently flummoxed by this line of questioning. More than once he stammered that although he was not disagreeing with the Democratic questioner, he would not associate himself with legal analysis taken word for word from his own report. One time, almost despite himself, Mueller commented that the analysis of culpability laid out by Democratic Representative Hakeem Jeffries was not “out of the ballpark” — but he nevertheless did not embrace it.

Mueller’s distancing from his report’s analysis on culpability for obstruction was in stark contrast with the overwhelming majority of his answers. Almost every other word out of Mueller’s mouth was his repeated statement that he stood by the report or relied on its contents.

The striking difference between Mueller’s distancing comments on his report’s analysis of obstruction and his embrace of the report’s factual content brought home just how weird the legal analysis was. Make no mistake: the weirdness derived from the decision not to reach a conclusion as to whether Trump committed a crime — even while analyzing the elements of obstruction and applying those elements to the president’s conduct.

Meanwhile, Republicans hammered Mueller from two different directions. One somewhat effective line of attack blasted the special counsel for neglecting the presumption of innocence. Republican representatives asked how Mueller could say that Trump had not been vindicated when he must be presumed innocent, and the report never stated that he was guilty of a crime?

The technical answer — that Mueller did not incriminate the president also did not vindicate him — makes little sense when considered against the background of the presumption of innocence. Intuitively, it makes sense to say that either a prosecutor should say you’re guilty of a crime, or you should be presumed innocent of it. Mueller’s approach attempted to straddle innocence and guilt in a way that does not resonate with the American legal tradition.

The other Republican line of attack was to point out that the Department of Justice regulations creating the special counsel’s office charge him with explaining decisions to prosecute or to decline prosecution. But if Mueller had decided that he could not prosecute the president, Republicans pointed out, then how could he “explain” his reasoning with respect to Trump?

To make matters worse, Republicans pointed out that Mueller had in effect explained his decision not to prosecute Trump with respect to conspiracy with Russian efforts to affect the election. How could he explain that declination to prosecute while simultaneously asserting that he would not reach any conclusions with respect to Trump’s possible obstruction?

Intentionally or not, the Republican questions emphasized the bizarre asymmetry of Mueller’s stated approach: stating that there was not enough evidence prosecute Trump regarding Russia while refusing (in theory) to reach a conclusion on obstruction.

Maybe Mueller believes that in order to save the country from a brutal impeachment battle that would not lead to presidential removal, he needed to hew to a middle ground that would satisfy no one. Maybe — as I have speculated before — he did not think it was seemly to accuse the president of the crime of trying to fire the special counsel, given that he had not found evidence of the underlying Russian crimes.

If Mueller thinks either of these things, only time will tell if history vindicates him.

In the moment, it’s hard to avoid the conclusion that Mueller’s report was ultimately incoherent with respect to obstruction of justice — and that the whole world now knows it.

In one fascinating moment, Mueller said that “from the outset” it had been decided that the report wouldn't analyze the criminality of Trump's conduct. If Mueller meant to offer a chronology on this decision, the statement would be news. It has been reported that at a meeting with Attorney General William Barr not long before the report was released, this matter was still undetermined. But I think it is far from clear that Mueller actually meant to say when the decision was reached. At other times during his testimony, he squarely refused to address questions of chronology in the course of his investigation. He may simply have meant that “from the outset” of his analysis he had decided not to speak to whether Trump had committed a crime.

To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net

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

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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