Below is my column in the Hill Newspaper on the aftermath of the Mueller hearings. This week, the Democrats belatedly moved to get a court order to release Grand Jury material withheld in the Mueller Report. That material represents a tiny percentage of text and the request is months too late. I testified many weeks ago that, if the Democrats were really serious about impeachment, they would have filed soon after the report was issued. Every indication remains that the Democratic leadership is still running out the clock on impeachment while trying to convince voters that they really do want to impeach Donald Trump.
Democrats are now insisting that it was not Mueller but really McGahn that they expected to put away Trump. It would be a sequel to a colossal flop and they are not exactly moving with dispatch . . . as time ticks by.
Here is the column:
I once heard a story about Pia Zadora’s performance as the lead in “The Diary of Anne Frank.” The audience was eager for Zadora’s dreadful acting to conclude. In a closing scene, Nazis broke into the house, shouting “Where is Anne Frank?” The audience shouted back, “She’s in the attic!” just to try to end the play. The story is likely apocryphal but it illustrates that not all live performances are really better than the original books.
I had the same impulse watching more than six hours of former special counsel Robert Mueller offering monosyllabic responses as Democrats read his report to him. Democrats said this would be the “blockbuster movie” for those who “did not read the book” of the report. If so, it was the congressional version of the John Travolta movie bomb “Battlefield Earth” and, for Mueller, the prosecutorial version of “Dazed and Confused.”
The hearing was a disaster for anyone who was hoping for a kickstart to impeachment. Democrats could not produce even a single takeaway moment in six hours of hearings. Instead, Mueller came across more often as befuddled than bemused by the entire exercise. Calling the hearings a “disaster” for Democrats, Harvard law professor Laurence Tribe, a leading advocate for impeachment, declared, “Far from breathing life into his damning report, the tired Robert Mueller sucked the life out of it.”
But of course, it did not matter. No minds were changed. Furthermore, Democrats did not seem to care that Mueller was in open contempt of Congress by simply refusing to answer questions whenever it suited him. Indeed, that proved to be most questions. The media coverage predictably ignored the fact that Mueller continually contradicted himself on what he would and would not answer. Instead, his curt refusals to answer legitimate questions were immediately described as evidence of his “reticence” and “discipline.” In fact, Mueller never even bothered to cite a legal basis to back up most of his refusals to answer questions.
He was allowed to discuss the underlying law as well as key decisions on the preparation of the report. All of these areas had been discussed by Attorney General William Barr and were neither privileged nor classified. So why did he not answer these questions? The answer is as simple as it is obvious. He did not want to because he often had no answer. Moreover, he knew the Democrats were not going to insist on detailed answers.
For example, Mueller refused to discuss whether Barr and former Deputy Attorney General Rod Rosenstein told him to submit his report with grand jury material identified, to allow for a rapid public release of the report. Indeed, that subject has already been discussed, and Mueller was clearly able to discuss it. However, he refused and no one bothered to point out that the attorney general had already established that this information could be discussed publicly. The fact is that it was Mueller who delayed the release of the report by ignoring the instructions of his superiors.
Likewise, Mueller clearly could have discussed, as did Barr, his legal interpretation of two memos from the Justice Department Office of Legal Counsel that he claimed prevented him from reaching a conclusion on criminal obstruction. This is a purely legal question. Mueller answered questions about the Office of Legal Counsel when it suited him and then refused when it did not. He started the second hearing before the House Intelligence Committee by withdrawing part of his earlier testimony before the House Judiciary Committee regarding the two memos.
Mueller is simply wrong in his interpretation of the memos insisting that you cannot indict a sitting president means that you cannot reach any conclusions in a report on his criminal conduct. His two superiors made clear that his interpretation was wrong when they reached a conclusion on obstruction. Nothing in the memos restricted Mueller from reaching conclusions on criminal conduct, as his superiors made clear to him. Yet, Mueller avoided all of that by repeating his “I will not answer that” mantra.
Democrats were left repeating the same mantra that “no one is above the law” and demanding to know why no one has taken action. It was a bizarre objection from a committee that has the authority to impeach President Trump. It was like a cop screaming, “Someone needs to arrest that guy!” Mueller continued with flagrantly conflicted answers. He refused to answer questions about his prosecution but went into detail about his decisions on other issues like not subpoenaing Trump. He did the same in refusing to discuss allegations in his own federal court filings but had no trouble holding forth on how WikiLeaks is a foreign intelligence operation or how answers from Trump were incomplete.
On the latter question, Mueller even discussed other ways of describing the lack of cooperation from Trump after refusing to explain ambiguous lines in other parts of his report. Then he returned to his mantra and said things like “I do not want to wade into those waters.” Committee members shrugged it off, as if that is a new form of aquatic government privilege.
In the end, Mueller testified in the same imperious fashion as his press conference two months ago when he declared, “I hope and expect this to be the only time that I will speak to you in this manner.” His declining to answer questions left the House committees in a glaring contradiction. When Barr testified substantively for hours without limitations, Democrats attacked him as uncooperative. But when Mueller demanded time limits and continually refused to answer nonprivileged questions that he clearly could answer, Democrats virtually cooed that he was only being reticent.
Yet, Mueller did not seem up to the task of answering questions even when asked the name of the president who appointed him as a United States attorney. When he did answer a question clearly, he stumbled. In the first hearing, he agreed with Representative Ted Lieu of California that “the reason that you did not indict the president” is because of the Office of Legal Counsel opinion “that you cannot indict a sitting president” and then had to start out the second hearing by taking back that answer.
Given his resistance to testifying and his request to have his chief of staff with him, the hearings successfully magnified the lingering questions over his supervision of the investigation. It all was a testament to how a bad movie can ruin a good book. Film critic Joel Siegel once reviewed “The Bonfire of the Vanities” by saying, “This is a failure of epic proportions. You have got to be a genius to make a movie this bad.” If the Democrats wanted to dampen calls for impeachment, they could not have produced a better cinematic suppressant. Call it “The Day Impeachment Died.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.