Andrew McCarthy: Mueller's testimony will not give Democrats what they crave. Can they handle it?

Prepare to be disappointed.

That should be Democrats' mindset heading into Robert Mueller’s appearance this week before two House committees. The greater the anticipation of the testimony, the more the letdown is apt to be.

That is because the special counsel simply is not going to give them what they crave.

DEMOCRAT SAYS HE IS 'CONVINCED' TRUMP WILL BE IMPEACHED, DESPITE FAILED HOUSE VOTES

Democrats want Mueller to say he would have charged President Trump with obstruction of justice were it not for Justice Department guidance instructing that a sitting president may not be indicted. Mueller cannot say that without contradicting his report and his statements at a late May press conference.

He is not going to do that.

Mueller abdicated on the obstruction question. Mind you, at the time he took over the Russia-gate investigation on May 17, 2017, there were already strong indications that there was no cyber-espionage conspiracy between the Trump campaign and the Kremlin to interfere in the 2016 election. In essence, what he assumed was more an obstruction than a collusion investigation. Indeed, just days earlier, according to former FBI deputy director Andrew McCabe, the FBI had opened an obstruction investigation against the president based on the May 9 firing of the Bureau’s then-director, James Comey.

I never believed a special counsel was legally or factually warranted. But if we assume for argument’s sake that a special counsel was necessary, then the single central issue he was needed to resolve was: Is there a prosecutable obstruction case against the president?

Yet, after putting the country through a nearly two-year probe, Mueller declined to answer that question. The Democrats’ devout wishes notwithstanding, he cannot answer it now because of how he avoided answering it four months ago when he submitted his report.

To be sure, Mueller’s tortuous explanation is as risible as it is tough to follow.

Justice Department protocols instruct that prosecutors must not comment publicly on the evidence against uncharged persons; the government is not supposed to speak unless and until it formally charges a person with a crime, at which point the accused is entitled to all of the Constitution’s protections — assistance of counsel, discovery, the right to confront witnesses, the right to mount a defense, and so on.

I never believed a special counsel was legally or factually warranted. But if we assume for argument’s sake that a special counsel was necessary, then the single central issue he was needed to resolve was: Is there a prosecutable obstruction case against the president? Yet, after putting the country through a nearly two-year probe, Mueller declined to answer that question.

In light of those protocols, the special counsel claimed that the DOJ guidance against indicting a sitting president could be terribly unfair to President Trump. (Yes, Mueller would have us believe he was looking out for the president!) After all, if Mueller were to recommend charges, the DOJ guidance would mean there could be no formal charge; therefore, the president would in effect stand accused of a crime, yet be denied all the Constitution’s protections. Mueller says he solved this imaginary dilemma by resolving not to confront the question of whether the president should be charged.

Now, there are more holes in the special counsel’s story than in a block of Swiss cheese.

1. Despite the fact that there are no formal charges and thus the president is bereft of the due process rights, Mueller issued a 400-plus page report outlining mounds of evidence, which he demanded be made public. It’s a bit cheeky of him to claim he was worried about prejudicing the president, no?

2. The DOJ guidance should have played no part in Mueller’s decision on whether to recommend obstruction charges. Federal regulations call for the special counsel to file a confidential report to his superior, the attorney general, explaining his reasoning for rendering a decision either to charge or to decline to charge.

That is a question about the sufficiency of the evidence. If Mueller had decided there was enough evidence to charge the president, it would then be up to the attorney general to determine (a) whether to accept the recommendation and (b) whether to invoke the DOJ guidance to postpone an indictment until after the president is out of office. If Mueller had decided to recommend charges, he would not have been prejudicing the president unfairly because the report to the AG is supposed to be confidential. If the AG later decided to accept or reject Mueller’s recommendation, to invoke the DOJ guidance, and/or to make the report public, that would not be Mueller’s concern. Like Bill Belichick says: Do your job. Mueller’s only job was to make a confidential recommendation: to charge or not to charge. He didn’t do it.

Mueller’s failure to make a recommendation on obstruction, as explained in the report and in his press conference, is incoherent. On the other hand, if one believes, as I do, that Mueller’s objective was to get his report to Congress, Mueller’s abdication makes perfect sense.

3. The guidance does not say a president may never be indicted; it says the president may not be indicted while he is in office. Consequently, regardless of the timing of any potential indictment, the prosecutor still has to decide whether there is enough evidence to charge. There is no excuse for a prosecutor to investigate for two years then not make the decision.

4. If Mueller’s position was that the DOJ guidance meant he could not make the charging decision, then why did he accept the assignment?

5. If Mueller’s position was that the DOJ guidance meant he could not make the charging decision, then why did he make the charging decision on the collusion question, finding no conspiracy?

6. If Mueller’s position was that the DOJ guidance meant he could not make the charging decision, why did he tell Attorney General Barr (in their first meeting, weeks before Mueller submitted the report) that his decision not to make a recommendation on obstruction was not driven by the DOJ guidance?

Mueller’s failure to make a recommendation on obstruction, as explained in the report and in his press conference, is incoherent. On the other hand, if one believes, as I do, that Mueller’s objective was to get his report to Congress, Mueller’s abdication makes perfect sense.

The special counsel and the attorney general clearly do not agree on the principles of obstruction law as applied to the president. If Mueller had recommended charges, there would have been a brawl at the Justice Department over what those principles are, and how they applied to President Trump’s conduct. The release of the report would have been delayed, and the Justice Department would have rejected and discredited Mueller’s legal theory.

By deciding not to recommend charges, Mueller got his report released swiftly and intact — the Justice Department having decided it was not worth debating obstruction law if Mueller was not advocating an indictment. And by being cagey about the role the Justice Department guidance played in his decision-making, Mueller fueled the Democrats’ claim that the president would have been indicted were it not for the guidance. Of course, Mueller didn’t say that, but what he said was close enough to boost the political narrative.

The problem for Democrats is that they have now had their political narrative but it has largely fallen flat. Americans were told for two years that Trump had conspired with Russia. Once Mueller conceded that there was no such conspiracy, the public had decidedly less interest in the obstruction aspect of the investigation.

As a practical matter, the obstruction angle cannot be revived unless Mueller proclaims that, after carefully weighing the evidence, he decided there was a prosecutable obstruction case against President Trump but he was prohibited by the Justice Department guidance from indicting it. Mueller, however, has already asserted — in the report and in his press conference — that this is not what happened.

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Moreover, he has emphatically stated that the report is his testimony, and he is neither going to contradict it nor revisit its reasoning. As the special counsel put it at his press conference, "That is the office’s final position, and we will not comment on any other conclusions or hypotheticals about the president."

Democrats are stuck with that answer. The record could get worse for them if Mueller’s testimony goes poorly. It is not going to get better.

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