Mueller testimony: Democrats should be wary about impeachment

Many months ago, when the Special Counsel’s investigation into Trump/Russia was at its height, a photograph appeared on social media. At the time it made for a trivial story, typical of the Twitter age. Somebody had spotted Robert Mueller visiting an Apple store and their picture showed him sitting with his wife at the “Genius Bar” where they were clearly being taught how to do something by one of the tech gurus. The picture caused some amusement. How, after all, could the great Robert Mueller, former Director of the FBI and the man charged with hunting out the darkest secrets in Washington, be stumped over something so mundane?

On Wednesday, we had something of an answer to that small riddle.

Robert Mueller, it turns out, is fallible.

Not only that. After a day of testimony from the former Special Counsel, the nature of his fallibility became quite evident. Even if the President couldn’t be charged with obstruction, the same will never be said about Mueller. His was a performance characterised by obstruction but, in this case, the obstruction of clarity. For six long hours, he refused to put his findings into a form of English that the American public find easier to digest than a 400-page report. Instead, he parsed the same point different ways: “I rely on the wording of the report”, “If that’s what was written in the report…”, “If it’s in the Report, I support it…”, “If it’s from the Report, it’s correct…”

This was Robert Mueller’s 89th appearance before Congress. With hindsight, it seems obvious why he had wanted to leave it at 88.

Mueller appeared as we’ve come to expect of Mueller: face wide at the bottom but narrowing to inquisitorial eyes; G-Man hair perfectly maintained from the 1950s; his tie tightly knotted up to his button-down collar. In his manner too, he was fixed and unyielding. This was the arch institutionalist who has done his utmost to appear fair in his interpretation of the law. Yet Robert Mueller is 75 years old in August. Whatever legend is associated with his name was a legend built in his younger years.

Some might say that his performance was typical of the man but there’s a point at which a gnarled, lawyerly performance wears thin. “Can you repeat that question?” became Mueller’s standard first response to most questions. It was clear from the outset that this was not a performance that was going to win over a TV audience. He struggled to hear, fumbled around documentation, and, more damning, was unaware of basic facts, especially in the early session before the House Judiciary Committee. At one point he admitted that he didn’t know of Glenn Simpson and Fusion GPS, the firm that originated the Steele Dossier. At other points, he didn’t know where basic quotes came from. Often, he could not distinguish between an interrogator’s question and the text of his own report. At times it felt like the only person who had not been following the Trump/Russia story was the man charged with leading it.

These simple failures coloured the exchanges where Mueller was the most taciturn. Was he being sensibly reticent given the toxic political climate or was he using his report as a crutch to help him avoid having to admit that he’d not actually read it? Often it looked like the latter and the optics were particularly bad for Democrats who had hoped that his testimony would drastically change the narrative around possible impeachment.

The Democrats appeared prepared for such difficulties. At the last minute, it was announced that the former Special Counsel was going to be accompanied by Aaron Zebley, a close aide who has worked with him for decades. He clearly needed assistance as he struggled to find references. The Democratic members of both committees also helped him, choosing to read long extracts of the Report and only stopping to ask Mueller to confirm that it was correct. This was where Mueller was at his best. When asked a straight question requiring a “yes” or “no” answer, the effect could be striking. This was particularly impressive when he was responding to the two chairmen, who sensibly framed their questions to elicit clear replies. The first question from Jerry Nadler was perhaps the only response of the day that’s worth the column inches.

Nadler: “Did you totally exonerate the President?”

Mueller: “No.”

That was the best moment for Democrats because Mueller had now flatly contradicted the President. They would need more, however, before they could justify talk of impeachment.

The other big moment needs to be taken with qualification. Ted Lieu elicited an answer which could have seen the Democrats rush to start the impeachment process.

Lieu: The reason, again, that you did not indict Donald Trump is because of the OLC opinion stating that you cannot indict a sitting president, correct?

Mueller: That is correct.

That’s a big admission because Mueller stepped beyond his report’s conclusion that they were unable to even consider if Donald Trump was guilty or innocent because of the Office of Legal Counsel opinion. Except, somewhat predictably, Mueller corrected this in his later statement to the Intelligence Committee. We were back to “I rely on the wording of the report”…

In total, Mueller declined to answer something close to 200 questions. He was particularly reluctant to discuss the indictment of individuals, especially Trump and Roger Stone. An argument can be made that his reticence is legally wise given that the latter is currently facing trial and the former might face prosecution once out of office. That, in fact, is what many believe that Mueller has done: preserve evidence for those that come after him. Certainly, it’s a fair assessment given that in his testimony to the House Intelligence Committee, Mueller seemed more relaxed discussing Russian interference in US elections, even conceding that the President’s actions were “unpatriotic”.

As for the Republicans: their involvement in both committees is worth no more than a footnote. Given that there’s enough in the Report for Republicans to argue reasonably that there’s not enough to impeach the President, it was silly that so many launched into character assassinations. Matt Gaetz contined to audition for a role on Fox News, predictably delving into right-wing conspiracy nonsense to impugn Christopher Steele, suggesting the former head of the MI6’s Russian desk was facilitating the Russian interference in the US election. Mostly there were plenty of statements and very few questions. Mueller, quite properly, rarely deigned to answer, except to vocally remonstrate anybody who questioned the impartiality of his team. If we’d seen more of that Mueller, the narrative today might be very different. Meanwhile, post Trump, the Republican Party will have to work hard to prove themselves as something more than an extension of cable news.

And that, really, is where it left us, with the Republicans crowing about Robert Mueller’s ineffective performance and the Democrats trying to tidy up a rather messy six hours. Nancy Pelosi later called it a “milestone day”, while insisting that she was not against impeachment so long as they had established “the strongest possible case”. Adam Schiff perhaps admitted that this has now become a political rather than legal case, saying “I have no illusions about getting a conviction in the Senate” but “I’m more concerned about the jury that is the American people”

Jerry Nadler perhaps summed it up best when he said that it “was a watershed day of telling the facts to the American people”. He was certainly right about it being a “watershed day”. The problem for Democrats is that the nature of the “telling” makes it difficult to sell the Mueller Report to an American audience that has already moved on.