Former Special Counsel Robert S. Mueller is in the news again per a rare op-ed he penned for The Washington Post about President Trump’s questionable commutation of longtime political dirty trickster, Roger Stone.
In his op-ed, Mueller defended his prosecution of Stone. However, while the former special counsel may deserve kudos regarding Stone, he deserves criticism for botching the Trump-Russia investigation.
In essence, Mueller’s investigation and botched testimony to Congress, per his report on Russian interference in the 2016 presidential election, both turned out to be big duds — to the detriment of democracy in general and the state of the USA in particular. To wit: Mueller’s biggest blunder was his failure to question Trump under oath per the grand jury in the Russia probe.
Had Mueller been successful in questioning Trump, either in person or virtually, the current occupant of the Oval Office might have been booted from office by now. Ask yourself a simple question: should any president of the United States be above the law and beyond reproach?
It appears antithetical to the rule of law that a mob boss or drug kingpin can easily be subpoenaed for testimony in a criminal investigation to determine corrupt intent, whereas Trump was exempt. This legal double standard is nonsensical for a democracy that prides itself on the bedrock principle of equal justice under law. More to the point: Mueller’s abject failure to hold Trump legally accountable via a subpoena was the fatal flaw of the Russia report.
The Mueller investigation left more questions unanswered than resolved about alleged criminal conduct committed by Trump. Therefore, the report should have been considered incomplete without the president’s direct answers to questions in-person and under oath. Mueller’s questionable call against a subpoena only benefited Trump, at the expense of public transparency and American jurisprudence.
Securing Trump’s testimony — either voluntarily or by subpoena — was paramount for Mueller to reach definitive conclusions on whether the president intentionally broke the law.
Let’s recall the verbatim language contained in the Mueller report:
If we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. While this report does not conclude that the President committed a crime, it also does not exonerate him.
Off the Hook
So why didn’t Mueller subpoena Trump to obtain the crucial information needed to definitely conclude whether the president committed a crime, which may have led to the president being removed from office via the impeachment process?
1) Protracted litigation could have turned public opinion against Mueller and in favor of Trump.
This was the goal of a persistent PR campaign waged by Trump to discredit Mueller. How many times had the public heard Trump utter the words “witch hunt” along with “no collusion, no obstruction” and related brazen attacks on the special counsel?
The public became desensitized to the president’s assaults on law enforcement and the legal process, partially due to non-stop coverage by an unwitting news media.
2) Internal guidelines of the Department of Justice (DOJ) preclude a sitting president from being indicted.
By all accounts, this was a significant legal hurdle in Trump’s favor. Yet it’s important to recognize the DOJ guidelines do not carry the weight of federal law and have never been tested in court. Some legal scholars viewed DOJ’s position as bureaucratic, overzealous and wrongheaded.
Why not let the courts decide? Yes, litigation would likely have been protracted, but we may have had a decision by now from the Supreme Court compelling Trump’s testimony. This could have had major repercussions for the president getting off the hook so easily, compared to a regular citizen in the same legal predicament.
3) Trump could have claimed executive privilege or shielded himself in other ways.
It’s unclear how courts would have addressed constitutional issues of presidential power and executive privilege. Ditto that for Trump possibly asserting the Fifth Amendment to protect against self-incrimination.
But a subpoena could have helped resolve the larger question of whether a sitting president is immune from indictment under the DOJ policy. This constitutional question needed to be answered for America to remain true to principles of democracy, rather than drifting further towards autocracy under Trump.
A federal judge may have ruled on the matter because it was germane to the underlying scope of the Russia probe and the legal precedent of presidential power. But Mueller gave up too easily!
4) The case would have been heard by the Supreme Court, which has a conservative majority (including two Trump appointees).
Any litigation would have ended up in the Supreme Court, albeit with an uncertain outlook for Trump. This should have factored into Mueller’s decision and caused him to at least try compelling Trump’s testimony.
Let’s remember the Supreme Court decision in the unprecedented Bush v. Gore case which decided the 2000 presidential election. Yes, it was divisive at the time, yet the country healed and moved forward. Compare that with the dismal “state of the union” today.
It’s worth noting that many constitutional scholars still argue that the presidency, generally speaking, has accrued too much power. And that was before Trump committed a long string of constitutional abuses, including obstructing Congress.
The Constitutional scholars point to the original intent of the Founding Fathers for a limited central government, one with most powers being deferred to the states — a concept which has since been flipped on its head.
“The Imperial Presidency” has increasingly become a staple of every White House, as detailed in the famous book of the same name. But Trump has taken that concept to a new level by crowning himself king. The end result of Mueller’s not securing a formal interview with Trump was a Russia report without legal certainty or credibility on key questions of the president’s criminality.
However, the Mueller report does contain a legal analysis of 10 separate instances in which Trump appears to have intentionally obstructed justice.
It’s worth noting that even outspoken conservative legal commentator and former federal judge, Andrew Napolitano, stated on Fox News (at the time) that Trump clearly obstructed justice on multiple occasions.
Litigation may have allowed Mueller to obtain all the necessary facts and information to make a final determination of criminal conduct by Trump.
Risk and Reward
In addition to the aforementioned risks to compelling Trump’s testimony, there were also potential rewards for the betterment of America and our justice system.
Mueller’s failure to fight for a subpoena of Trump was fatal to his report’s final outcome. This was Mueller’s biggest blunder.
Just think what might have transpired had Mueller successfully compelled Trump’s testimony:
1) The Mueller Report could have been legally decisive per language charging Trump with intentional criminality— that is, assuming a judge first ruled that a sitting president is not legally protected from indictment.
2) The Mueller Report may have contained a mandate for Congress on how to proceed in investigating Trump — not merely a road map. This could have ultimately held the president accountable for allegedly obstructing justice on multiple occasions and then lying to cover it up.
About 60% of respondents said (at the time) they believed Trump publicly lied about the Mueller investigation, according to a previous Washington Post-ABC News poll.
3) Trump would have had no choice in complying with Congress for additional witness testimony and information (again, assuming a court ruled against assertions of executive privilege). Rather, Trump ended up stonewalling House oversight committees at every turn to preserve his presidency. This doesn’t sound like an innocent man.
In hindsight, Mueller appears to have taken the easy way out by essentially bailing out Trump from ever having to directly testify before the grand jury about his alleged criminality. This is arguably the opposite of due diligence by a prosecutor.
It’s also unclear why Mueller categorically succumbed to drawn-out negotiations with the White House, for over a year, regarding an interview with Trump. Mueller eventually backed down by agreeing to accept bogus prepared written responses by White House lawyers on behalf of Trump (some of which weren’t even complete replies).
Therefore, regardless of Roger Stone’s fate, history will recall Mueller’s biggest blunder: failure to question Trump under oath and reach legal finality on pending issues of criminality.
Meanwhile, America suffers through an out of control pandemic, the worst economy since the Great Depression, and continuing racial tensions.
If Mueller had only acted appropriately in compelling Trump’s testimony in the Russia probe, who knows where the nation might be today. Most Americans can only hope and pray for a return to normality, and the banishment of immorality inside the White House.
An earlier version of this post was previously published on Medium.com.
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