The Slatest

The Republicans Have a Point

Sensenbrenner, seated, speaks into a microphone.
Wisconsin Rep. James Sensenbrenner at Wednesday’s House Judiciary Committee hearing. Win McNamee/Getty Images

One of the lines of argument being developed by Republicans at Wednesday’s House Judiciary hearing with Robert Mueller is that the special counsel investigation of Donald Trump was pointless, because, as Mueller’s report states—and as he’s confirmed in testimony—the Department of Justice’s Office of Legal Counsel guidelines made it impossible for Mueller’s work to lead to an indictment of the president.

Here’s Wisconsin Rep. James Sensenbrenner’s formulation of the idea:

Since you decided under the OLC opinion that you couldn’t prosecute a sitting president, meaning President Trump, why are we having all of this investigation of President Trump that the other side is talking about when you knew that you weren’t going to prosecute him? 

A prosecutorial investigation that begins with the preclusion of prosecution, Sensenbrenner said later, is just “fishing.”

Now, Mueller’s report does address this problem elliptically, noting that “the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.” That process is impeachment. But! The House’s Democratic leaders don’t want to impeach Trump because they’re afraid that swing voters won’t support it and will punish them, in 2020, for overreaching. Thus, instead of using Mueller’s report—which was released three months ago—to even formally consider impeachment proceedings, they’ve stalled by arguing that they need to see its redacted portions and underlying investigative materials, and hear from Mueller himself, before moving forward. At Wednesday’s hearing, no Democrat has even said the word impeachment; instead, they’ve asked largely redundant questions about the same set of apparent incidents of obstruction of justice outlined in the report. The strategy seems to be to get Mueller to discuss the criminal-ish things Trump did on television in such a way that public opinion shifts toward impeachment without Democrats having to push for it.

Or, as Republican Ohio Rep. Steve Chabot puts it:

Director Mueller, my Democratic colleagues were very disappointed in your report. They were expecting you to say something along the lines of “here is why President Trump deserves to be impeached.”

Chabot, of course, would prefer that no Republican president ever be held accountable for anything. But he and his colleagues are not wrong in characterizing the current situation as one in which Mueller and the Democrats pass the buck back-and-forth to each other to no apparent end. If neither the Justice Department’s special counsel for investigating the president nor the people who control the committee that would be responsible for “formally accus[ing] a sitting president of wrongdoing” is going to accuse that president of a crime—three months after the release of a 448-page report about why, exactly, they could do so—then why are we still talking about it?