Jurisprudence

What the Mueller Investigation Was Always About

In the partisan warfare that dominated Wednesday’s hearings, we’ve forgotten the point: Our elections are under threat, and the president doesn’t much care.

Robert Mueller raises his hand to be sworn in.
Robert Mueller on Wednesday.
Saul Loeb

In the end, one of the major questions special counsel Robert Mueller faced when he testified before house committees on Wednesday was whether his investigation should have existed at all. Rep. John Ratcliffe, R-Texas, was one of the first to kick off this line of inquiry, using his time to make the point that Robert Mueller had wasted years investigating Donald Trump, because Mueller had known all along that a sitting president could not be indicted. What, then, was the point of doing this, if the result was always going to be the same? Ratcliffe’s frustration focused specifically on the idea that Mueller’s conclusion was equivocal—and didn’t clarify whether Mueller thinks Trump is guilty or innocent.

“Can you give me an example other than Donald Trump where the Justice Department determined that an investigated person was not exonerated, because their innocence was not conclusively determined?” Ratcliffe asked.

“I cannot, but this is unique situation,” Mueller began.

Ratcliffe cut him off. “Let’s just leave it at: You can’t find it.” Rep. Jim Sensenbrenner, R-Wisconsin, went even further: “Since you decided under the OLC opinion that you couldn’t prosecute a sitting president, meaning President Trump, why do we have all of this investigation of President Trump that the other side is talking about when you know that you weren’t going to prosecute him?”

Mueller tried, halfheartedly, I think, to explain that in fact, an investigation of a sitting president was unique, but it still had to happen. Over and over, as the day chugged on, Mueller was asked why he had investigated the president in the first place if the outcome—that Mueller’s team would not indict a sitting president—was a foregone conclusion. Mueller attempted to explain that his job was, as any prosecutor’s job is, to follow the investigation wherever it may have taken him. But he was instead repeatedly excoriated for using a futile inquiry to promote a vicious and partisan “fishing expedition.” The takeaway, for Republican purposes, was that if the president does it, it’s never illegal, which, if we remember, was Richard Nixon’s story. It’s Trump’s now as well.

Here is the problem with that narrative: It obscures the reality that Robert Mueller was originally charged with investigating Russian efforts to influence the outcome of the 2016 election and that only secondarily was he tasked with figuring out whether the president had obstructed justice by impeding that investigation. The whole point of this sad affair—lost entirely on a Law & Order nation intent on seeing the Mueller investigation end with Trump in handcuffs on the White House lawn—was that Russia hacked an election, that it is right now hacking the next election, and that this is a threat to national security and the long-standing American experiment in representative democracy. On this one point, Mueller was emphatic: “They’re doing it as we sit here, and they expect to do it in the next campaign,” Mueller told the House Intelligence Committee. Indeed that, and not the commission of specified crimes, was always meant to be the special counsel’s yardstick.

Rep. Adam Schiff, who chairs the House Intel Committee, has been making this argument for more than a year, trying to remind the American people that criminality is not the baseline; criminality is a side dish. Congress is meant to be overseeing and investigating something far more important and also something far less quantifiable—not just whether Donald Trump committed crimes (Mueller functionally tagged him for that regardless)—but whether Donald Trump sold out, devalued, shilled for, and grifted around American democracy over the course of the 2016 election. The question for Mueller has always been whether Russia interfered in an election (it did), whether Trump benefited (he did), and whether he tried to stymie the investigation into this concern (he did). All of that was laid bare on Wednesday for anyone who was listening. Trump campaign members were exchanging polling data with Russian intelligence operatives and hosting meetings at Trump Tower in order to obtain “dirt” on Hillary  Clinton’s campaign. Trump was lying about all the Russia contacts before he was even caught lying about it. This is not in dispute, even as all the screaming over the origins of the Steele dossier attempts to distract from these facts.

The focus of both Mueller and Schiff on this larger, more intangible problem allowed the final moments of the Intelligence Committee hearing to be deeply strange—a sad, almost understated pas de deux between Schiff and the reluctant witness. Speaking quietly and almost between themselves, Mueller and Schiff zoomed out to the very biggest picture of what has happened in America over the past three years. Their exhaustion, perhaps with the situation, perhaps with the national need for partisan spectacle, and perhaps with their mutual awareness that no one much cares, was palpable. In his closing statement, Schiff set the stage: “We cannot control what the Russians do, not completely. But we can decide what we do and that this centuries-old experiment we call American democracy is worth cherishing.” His final exchange with Mueller was, in fact, an elegy for that experiment. Here is the exchange, which truly is worth watching or reading in full:

Schiff: Director Mueller, I want to close out my questions, turn to some of the exchanges you had with Mr. Welch a bit earlier. I’d like to see if we can broaden the aperture at the end of the hearing. Receiving assistance during a presidential campaign is an unethical thing to do.

Mueller: And a crime.

Schiff: And a crime. And to the degree that it undermines our democracy and institutions, we can agree it’s also unpatriotic?

Mueller: True.

Schiff: And wrong.

Mueller: True.

Schiff: The standard of behavior for a presidential candidate or any candidate shouldn’t be whether something is criminal, it should be held to a higher standard, you would agree?

Mueller: I will not get into that, because it goes to the standards to be applied by other institutions besides ours.

Schiff: I’m just referring to ethical standards. We should hold our elected officials to a standard higher than mere avoidance of criminality, correct?

Mueller: Absolutely.

Schiff: You have served this country for decades, you’ve taken an oath to defend the Constitution, you hold yourself to a standard of doing what’s right.

Mueller: I would hope.

Schiff: You have. I think we can all see that. There are times where your reward will be unending criticism, but we are grateful. The need to act in an ethical manner is not just a moral one, but when people act unethically, it exposes them to compromise. Particularly in dealing with foreign powers, is that true?

Mueller: True.

Schiff: Because when someone acts unethically in connection with a foreign partner, that foreign partner can later expose their wrongdoing and extort them?

Mueller: True.

Schiff: And that conduct, that unethical conduct can be of a financial nature, if you have a financial motive or illicit business dealing, am I right? 

Mueller: Yes.

Schiff: If you are lying about something that can be exposed, then you can be blackmailed? 

Mueller: Also true.

Schiff: In the case of Michael Flynn, he was secretly doing business with Turkey, correct? 

Mueller: Yes. 

Schiff: That could open him up to compromise that financial relationship. 

Mueller: I presume. 

Schiff: He also lied about his discussions with the Russian ambassador and since the Russians were on the other side of the conversation, they could have exposed that, could they not? 

Mueller: Yes. 

Schiff: If a presidential candidate was doing business in Russia and saying he wasn’t, Russians could expose that too, could they not? 

Mueller: I leave that to you. 

Schiff: Well, let’s look at Dmitry Peskov, the spokesperson for the Kremlin, someone the Trump Organization was in contact with to make that deal happen. Your report indicates that Michael Cohen had a long conversation on the phone with someone from his office. Presumably the Russians could record that conversation, could they not.  

Mueller: Yes.

Schiff: And so, if candidate Trump was saying, I have no dealing with the Russians but the Russians had a tape recording, they could reveal that, correct?

Mueller: Yes. 

Then Schiff, still sadly and soberly, concludes:

Schiff: When this was revealed, that there were these communications, notwithstanding the president’s denials, the president was confronted about this, and he said two things. First of all, that’s not a crime. I think you and I have already agreed that shouldn’t be the standard, right?

 Mueller: True.

 Schiff: The second thing he said was, why should I miss out on all those opportunities? I mean, why indeed, merely running a presidential campaign, why should you miss out on making all that money was the import of his statement. Were you ever able to ascertain whether Donald Trump still intends to build that tower when he leaves office?

 Mueller: Is that a question, sir?

 Schiff: Yes. Were you able to ascertain, because he wouldn’t answer your questions completely, whether or if he ever ended that will desire to build that tower?

 Mueller: I’m not going to speculate on that.

 Schiff: If the president was concerned that if he lost his election, he didn’t want to miss out on that money. Might he have the same concern about losing his reelection?

 Mueller: Again, speculation.

 Schiff: The difficulty with this, of course, is we are all left to wonder whether the president is representing us or his financial interests. 

This exchange has nothing to do with the pee tape or whether the fact that the president’s underlings refused to follow his illegal demands frees him of culpability for obstruction. It was merely a sad recitation of unrefuted facts: Donald Trump prioritized his brand over American national security during the election, and he gave foreign interests ample opportunity to exploit and capitalize on those actions, both during the campaign and after. His campaign prized winning and, if he did not win, his ability to still build a hotel in Russia over American interests. Nobody disputes any of this. Republicans in Congress admire it. Half of the American electorate forgives it, sold on the dream that to be “successful,” i.e., to make money freely, is the ultimate expression of American aspiration. The Trump campaign exposed and continues to expose the country to foreign meddling, and it continues to make itself vulnerable to foreign blackmail. And the GOP is unbothered, because it is prioritizing party over patriotism, and party over national election security.

For anyone hoping for a made-for-TV denouement, this wasn’t it. But anyone seeking a physical tableau of two men who love their country, from different parties and different eras, agreeing sadly that it was not “ethical” or “patriotic” or “right” for the president of the United States to sell the country into electoral oblivion for a hotel deal, the ending was sober and kind of perfect. Schiff and Mueller landed the plane on the tragic mutual agreement that whether or not the president committed a crime, he sold us all out.

For those who ever believed a by-the-books, unelected special counsel in the midst of a partisan political firestorm was going to save America by way of congressional testimony, Wednesday was a dramatic betrayal. He erred, as we expected, on the side of understatement and minimizing, disputing the characterization of events delivered by politicians on both side of the aisle and refusing to offer legal conclusions he had already arrived at in print. But none of that drains the force of what he revealed in his investigation, and the conclusions of that effort are not in dispute.

In these final moments, Robert Mueller and Adam Schiff weren’t worried about scoring points. They worried about the future of free and fair elections in a country that doesn’t seem to have noticed that free and fair elections are vanishing before our eyes. As Mueller warned of the interference, “they’re doing it as we sit here. And they expect to do it during the next campaign.” That is what Mueller was investigating. This is his warning. It’s easy to tell ourselves that all of the corruption and self-dealing and the purposive cruelty to immigrants and enrichment of the wealthy can be cured in November 2020. The problem is that this solution is precisely that which is under threat, and that which we may never quite realize was lost.