Politico: Actually, Robert Mueller Was Awesome

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Source:  Politico . – Confluence Daily is your daily news source for women in the know.

By RENATO MARIOTTI

History will show that he had one big goal, and nailed it.

Former special counsel Robert Mueller’s testimony Wednesday has been described as “excruciatingly awkward,” “confused,” “struggling” and “a stammering, stuttering mess.”

I saw something completely different. From my perspective, after six hours of testimony, it was the 74-year-old career prosecutor and law enforcement officer who won the day. It wasn’t that close.

Tasked with overseeing the most high-profile investigation of our time, Mueller managed to complete the investigation without appearing to have a partisan agenda, with both sides embracing him at times. Even Trump said he acted “honorably”—before he turned on Mueller as “conflicted” and partisan—and touted “total exoneration” soon after Mueller concluded his work. Mueller’s down-the-middle, leak-free handling of the high-stakes investigation was an object lesson in professionalism.

And Wednesday’s performance was no different.

Mueller didn’t want to testify, for good reason. He had done his work already. As a prosecutor, he had to ensure he stayed detached from the political process, presenting his findings in a manner that did not make it appear he was choosing a side or advancing an agenda. One slip of the tongue could be used to undermine his team’s work.

In the long view, the verdict of history depends most of all on Mueller being seen as nonpartisan, measured and above the fray—an operator whose work is unimpeachable and can be relied on (now, or after Trump’s term, or years from now) as a bulletproof statement of fact. So all the little details of the case that members were trying to ferret out pale in comparison to his ability to maintain that status and be seen as a reliable agent of impartiality. During the hearing, that was clearly his goal. In doing that, he succeeded, and history can thank him for it.

It was clear from the start he knew Democrats wanted to use him as a prop to bring the findings of his report to life as part of a push for an impeachment inquiry. Mueller went out of his way to avoid regurgitating the contents of the report, wary of creating sound bites that could be used to suggest he supported impeachment. For instance, when Rep. Veronica Escobar (D-Texas) asked him whether his language referring to a constitutional process to “formally accuse a president of wrongdoing” was a reference to impeachment, he refused to admit the obvious.

Mueller did that all day long. He refused to answer leading questions whenever answering the question might draw him too close to the political fight, force him to say things that could spur controversy, or cause him to veer outside the four corners of the report. Mueller wanted to go no further than his report and he rarely did so, despite both sides egging him on. He swatted away Republican attempts to elicit answers about the origins of his probe as readily as he ignored Democratic attempts to get him to make their case against Trump.

His monotonal yes and no answers might not have made for the most dramatic viewing, but they weren’t without effect. In five minutes, House Intelligence Chairman Adam Schiff walked Mueller through the most damning details of Volume 1 of his report. Mueller’s answers were short—“that did occur,” “accurate,” “that is correct”—but what he affirmed was that Russia engaged in a systematic effort to help Trump win in 2016, that Trump and his campaign welcomed Russian aid, and that Trump lied to the American people about his business dealings in Russia.

When Mueller wanted to say more, he did. He described in detail the threat posed by the Russian attack on our electoral process, testifying that “they’re doing it as we sit here, and they expect to do it during the next campaign.” He warned that “many more countries are developing the capability to replicate what the Russians had done.” When Mueller had the rare opportunity to testify about matters that were not partisan—matters that should concern all Americans—he testified freely and strongly.

At times, Mueller faced harsh questioning from Republicans who lashed him and his team as biased or worse. His calm demeanor was another sign of his professionalism. It would have been easy for Mueller to fight back—he has in previous appearances, after all—but that would have pulled him into the fray. It was not weakness but rather quiet strength that caused Mueller to do nothing more than calmly reply, “I take your question,” in response to GOP Congressman Louie Gohmert’s hyperbolic charge that he “perpetuated injustice.”

The hesitation you saw in Mueller before he answered questions was the face of a man who was choosing his words carefully. He played it safe, like a football team running out the clock. His constant desire to double-check his report and to refer members of Congress to the report itself was motivated by a desire to ensure that each word of his testimony was accurate. He had no incentive to hurry, knowing it would be hard for members to challenge him in a five-minute time span if he took his time.

Mueller had to be careful and precise because every word he said would be dissected. When he agreed with Rep. Ted Lieu (D-Calif.) that the reason he did not “indict Donald Trump is because of the OLC [Office of Legal Counsel] opinion stating you cannot indict a sitting president,” many took that to mean that Mueller had affirmatively concluded that he would have indicted Trump if he could do so. Mueller clarified that point in the afternoon session. It was a rare misstep and he knew he had to fix it without regard to how it might be perceived by either side.

Even Mueller’s nonanswers were carefully considered. Mueller refused to answer whether he believes Attorney General William Barr’s letter purporting to summarize his report is accurate. The letter was technically accurate but highly misleading, and an answer from Mueller that the letter was accurate would have left the false impression that the thrust of the letter were true. Mueller also refused to answer whether Trump or his son took the Fifth, presumably because commenting on a defendant’s silence can be legally problematic.

Through his careful answers, Mueller was able to thread a needle, staking out very nuanced and careful legal positions without seriously being tested by the members who questioned him. For example, Mueller refused to make any decision as to whether there is sufficient evidence to charge Trump with obstructing justice.

Mueller’s decision not to reach a prosecutorial judgment as to obstruction flowed from the DOJ’s policy against indicting a sitting president. Because Mueller couldn’t indict Trump, he felt it would be unfair to Trump if he reached a conclusion that Trump would be unable to challenge in court. But if Mueller merely reached no conclusion, that could leave the false impression that he found no evidence that Trump committed a crime. So Mueller famously said that he was “unable” to state that Trump “clearly did not commit obstruction of justice,” and thus his report “does not exonerate” Trump. This may sound confusing to a layperson, but it is a very careful approach that permitted Mueller to be as fair as possible to Trump under the circumstances.

No one had ever publicly asked Mueller about this very nuanced but unprecedented approach. Many argue that Mueller should have stated his conclusion, and in any event, it’s unclear why he chose the “does not exonerate” language instead of merely making clear that his nondecision does not mean there is not enough evidence to charge Trump.

But both sides failed to meaningfully probe Mueller’s reasoning on this key issue. Republicans criticized and grilled him as to “exoneration,” but they had to be careful not to give Mueller an opportunity to refer to the DOJ policy against indicting a sitting president. Lurking in the background was the reality that Mueller found “substantial” evidence to prove each of the elements of obstruction of justice. Pushing him to explain himself would be bad for Trump. Yet Democrats could not get him to do so either because they were in no position to push him to do something he was unwilling to do.

So Mueller got to say what he wanted to say, which is that there is “substantial” evidence to support counts of obstruction, without being forced to say that he concluded Trump obstructed justice. Despite hours of questioning by dozens of members of Congress, Mueller was never backed into a corner or forced to explain the most important legal decision he made.

Even if some think Mueller has lost a step since he last appeared before Congress six years ago, he still looked a step or two ahead of most of his questioners on Wednesday. Most importantly, he appeared above the fray, cautious, and fair in the face of bitter partisan rancor. That is what we should expect from prosecutors, and it is the legacy that Mueller leaves behind.