Robert Mueller took the special counsel’s job in an era of great political division. As Mueller said in his congressional testimony on Wednesday, it was a “unique circumstance.” Sadly, if not gravely, for the country, Mueller not only undermined American justice, in the process, he fanned the flames of American division for years to come.
May 2017 was an extraordinary time in American history. America was not just deeply divided politically, as the bitter 2016 election exposed. (We have had divisive elections in our recent past.) This time was different. After the 2017 election, far beyond division, Democrats were resisting the results of the election to a degree only surpassed by their reaction to Abraham Lincoln’s election.
How bad was our division? When Mueller took the job in May of 2017, nearly half the country was disposed to believe him and nearly half the country was not only disposed not to believe him, they were convinced there was a conspiracy to unseat President Trump.
That dynamic was not Mueller’s fault when he took the Special Counsel job. However . . .
Mueller willingly took a job in the name of justice under those circumstances. It would not have been an easy task for anyone taking that job to rise above politics and to deliver non-partisan justice.
1. Failed justice. The first Mueller legacy, however, will be that he failed to do his job miserably.
The world knows that Mueller picked 16 Democrats, including some Hillary Clinton's donors, and no Republicans to “investigate” Donald Trump – half the country would say “prosecute” Donald Trump. On its face, obviously that was an injustice – but it got worse. Justice, according to Mueller, meant that Peter Strzok, who openly hated Trump, had to go but those on his staff who openly liked Hillary and donated to her could stay.
The world knows that Mueller requested that his investigation be expanded against Trump but sought no similar expansion related to the obvious crimes committed by those in the Hillary campaign or his friends and associates at the FBI and the DOJ. Indeed, the world knows Mueller’s team ignored multiple Fusions GPS contacts with Democrats – so much so that at one point during his testimony on Wednesday Mueller claimed he did not know who Fusion GPS was. That is not justice.
The report, as many have said, is a report that not only has serious inaccuracies, it excluded exculpatory evidence and was decidedly one-sided. Worse yet, in the process, Mueller ludicrously and dangerously turned all of American justice on its head by concluding he could not “exonerate” President Trump.
Mueller’s attack on the American justice system was not just “unique circumstance,” it was one of the worst prosecutorial abuses in American history – but it gets worse. Mueller’s decision to publicly air “allegations,” after not finding enough evidence, was part and parcel to his prosecutorial abuse. After all, as former prosecutor and South Carolina Republican Congressman Trey Gowdy has said, it is a prosecutor’s job to “indict or shut up.” Mueller chose not to shut up as part of a decision not to undertake a “traditional prosecution.”
Also, in his testimony, Mueller’s repeated and selective refusals to answer questions about the manner in which the investigation/prosecution was undertaken only fuels the suspicions of many that Mueller’s efforts, and that of his biased team, were partisan.
In the final analysis, Mueller had a chance to be Solomon but turned out to be just a partisan.
As Special Counsel Robert Mueller had a chance to be Solomon but instead he turned out to be just a partisan.
So where does of that leave us going forward?
2. With a wounded legal system.
Years ago, Bill Clinton damaged the American legal system by lying under oath and getting away with it in a very public manner. Under Clinton, it was clear that “under penalty of perjury” had lost much of its meaning. The Mueller team’s use of the standard that they could not exonerate is not forgivable, or as Ken Starr said, it was “a terrible offense against our constitutional system.”
America can rise above that abuse – but Mueller’s actions remain a grievous prosecutorial abuse that must be corrected.
3. No one’s mind will have changed. The hearing and Mueller’s failures are not going to convince anyone differently than what they already think. The Democrats aired Mueller's report for their base. On the other hand, Mueller’s performance, from day one, including his answers or lack of answers to Republican questions, justified the skepticism of Republicans that justice was done.
In other words, the hearings played to the Democrats base and angered the Republican base. Status Quo.
All of which leads us to this conclusion.
4. Expect greater division in America. No one who watched the Mueller hearings this week could possibly conclude that there was common ground between Republicans and Democrats about the issue of Donald Trump and the so-called Russia investigation.
That division was unquestionably fueled by Mueller’s prosecutorial abuse and will not end the Mueller hearing. To the contrary 2020, in significant part, will be about:
(a) whether Trump obstructed justice, or
(b) did Mueller, the FBI, and DOJ seek to undermine if not illegally attempt to nullify the election?
Tom Steyer’s commercials about impeachment that ran during the Mueller hearing is contemporaneous proof of that. Indeed, the hearing themselves and the promise of more investigations by the Democrats are proof of that.
So, at the end of the day, America is worse off today than it was before Mueller started his job.
It is more divided than it was before Mueller started his job, and importantly, as a result, the likelihood that 2020 will resolve these issues was also diminished.