Jurisprudence

The Reversed “Gotcha” Moment of Mueller’s Testimony Is a Metaphor for the Whole Thing

The special counsel wasn’t trying to do anything but tell his questioners that he stood by his report.

Mueller raising his hand as if in rebuttal.
Robert Mueller testified before the House Judiciary Committee on Wednesday.
Caroline Brehman/CQ Roll Call

Maybe it shouldn’t surprise us that the moment in Robert Mueller’s House Judiciary Committee testimony Wednesday morning that may have meant everything could also have meant nothing, and later in the afternoon, Mueller clarified that he had not in fact intended to say what he had been initially interpreted to be saying. The moment in question came in the morning as Mueller testified before the House Judiciary Committee. In response to Rep. Ted Lieu, D-C.A., asking why he didn’t indict Donald Trump for the various obstructive acts he laid out in Volume II of the Mueller report, Mueller said that he didn’t indict because he couldn’t. Here is the exchange:

Lieu: I’d like to ask you the reason, again, that you did not indict Donald Trump is because of OLC opinion stating that you cannot indict a sitting president, correct?

Mueller: That is correct.

This question—why Mueller didn’t indict—has dominated speculation over the special counsel’s actions and his testimony today. In the report itself and in subsequent statements, Mueller has claimed that a Justice Department Office of Legal Counsel opinion definitively prohibits him from charging a sitting president with a federal crime. It’s a point that he and William Barr have offered differing opinions on: In May, Barr testified before the Senate Judiciary Committee that Mueller “reiterated several times in a group meeting that he was not saying that but for the OLC opinion he would have found obstruction.”

This morning’s short colloquy between Lieu and Mueller seemed to confirm the perception that the main reason for a lack of indictment was Mueller’s understanding of this OLC opinion and the fact that it precluded indictment. Liberal Twitter assumed this was the great “gotcha” moment of the hearing. Greg Sargent, at the Washington Post, tweeted, “Whoa!” Headlines suggested this was the moment Democrats were waiting for. Preet Bharara tweeted that the answer was “very very close to Mueller saying that but for the OLC memo, Trump would have been indicted.” In the break between hearings, several Democratic representatives also emphasized this particular point. In an interview with a reporter, Rep. Steve Cohen said: “Mr. Mueller, an American hero, made clear that any other person who did the acts that Trump did would have been indicted for obstruction of justice, but for a policy of the Justice Department that you can’t indict a sitting president is the reason why he was not indicted.” Lieu himself said, “What we established today in the hearing is that we have a felon sitting in the White House. Donald Trump committed multiple crimes of obstruction of justice.” Lieu suggested that Mueller came out stronger than he has on this point because “I read straight out of his report where he said there was substantial evidence of intent. Faced with that, he could come to no other conclusion than yes, he would have indicted Donald Trump but for the OLC opinion.”

Many listeners didn’t believe that this was what Mueller had intended to say, and they would be correct. In his opening statement in Wednesday afternoon’s testimony before the House Intelligence Committee, Mueller was quick to correct that misimpression:

Now, before we go to questions, I want to go back to one thing that was said this morning by Mr. Lieu who said, and I quote, “You didn’t charge the president because of the OLC opinion.” That is not the correct way to say it. As we say in the report, and as I said at the opening, we did not reach a determination as to whether the president committed a crime.

Where does this leave us? Basically, exactly where we were before, which should be unsurprising to anyone who watched as Mueller performed at peak Bartleby all morning, refusing to read words from his own report (leaving House members to read them instead) and declining to amplify anything in the report beyond noting that it was “correct.” He mulishly resisted anyone’s characterization of any legal elements of, say, obstruction. And now, the one bit of news that seemed to have been news has been clarified back into the same exact legal language as was carefully crafted in the report. It was a misstep that was misunderstood and then retracted, a perfect capsule performance of how dragging an unwilling witness into a polemical hearing was never going to go well.

Jim Newell contributed reporting.