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  • Seth Levy

Mueller didn't tee up impeachment

Once again the right wing intelligentsia chose fear and gaslighting over deep analysis. Shocking, I know. They have claimed non-stop that Mueller wanted the Congress to impeach Trump. I mean he's a part of the coup plotters long time plan to end the Trump Presidency right? And how do they say he did this via his report? He wrote section 2 at all. And then he had the audacity to chronicle the facts of the various potentially obstructive episodes. "Why would he do that?!?" they say. As though there is only one answer.


Well, as surprising as this may seem, the answer they imply is both wrong on the facts and on the assumed consequences. Let's start at the beginning. Why did Rosenstein appoint Mueller? The right wing intelligentsia will answer this question via narrative. They will recite a soap opera that delves into the long supposedly corrupt history of Mueller, his connections to Comey, McCabe and Rosenstein, and then tell you it was to finish the final step in the master plan to execute the coup on Trump.


What won't they do? They won't go through the timeline and the details of the events that literally led to Mueller's appointment. I'll quickly reprise. Rosenstein wrote a memo saying that, in order to restore public confidence to the FBI, Comey needed to be fired. We now know as a result of the Mueller report that one of the drivers for Comey's firing is that he refused to acknowledge that Trump was not a target of the investigation and it was affecting Trump's ability to govern. Rosenstein knew this.


McCabe did not know exactly why Trump fired Comey. He wasn't privy to the deliberations. So he relied on publicly available information, like the Lester Holt interview and the reported comments to the Russian Ambassador, and on the Comey memos. He concluded there was enough smoke that he should open an obstruction investigation against the President of the United States. That happened. That precipitated the Mueller appointment.


Amongst the investigations that were taken from the FBI and handed to Mueller, was an obstruction investigation that targeted Trump. Setting aside why Rosenstein believed a special counsel was necessary, he decided that Mueller not McCabe should complete that investigation. In fact DOJ has subsequently stated that Rosenstein wanted McCabe as far away from the investigation as possible.


Do you see how this helps to explain why Mueller wrote section 2 of his report. He had to deal with the question of obstruction. It was one of the primary investigations handed to him. He had to deal with it, investigate it and come to a "conclusion".


Now here is the second aspect of their attack on Mueller. They say, instead of writing 200 pages outlining evidence without concluding, he should just have said I wanted to prosecute or I did not want to prosecute. They claim that by not concluding on obstruction Mueller was being unfair to Trump and setting up Congress to impeach Trump. Let's explore those two claims.


On the question of fairness, you have to both consider the impact of the alternative and the merits of Mueller's argument for why he did not conclude on obstruction. The alternative would have been to either conclude Trump did not obstruct or that he did but Mueller could not prosecute. The only way concluding could be more fair to Trump then what Mueller chose to do, would be if the conclusion was Trump did not obstruct.


Keep in mind prosecutorial decisions are often controversial. They aren't black and white. This is where I will first highlight one of the many ways that Mueller did not help Democrats. If Mueller had concluded simply that, as a matter of law, Trump did not obstruct, then he would have made himself and his report an easy target. Democrats and the media could have made many arguments that Mueller was whitewashing things for Trump. They would have endlessly recited all the obstructive events outlined in Mueller's report.


Mueller grounds his argument for his approach on obstruction in the theoretical scenario where he would conclude Trump had obstructed but the OLC decision restricted him from prosecuting. As Mueller accurately pointed out, doing this would have denied Trump a venue to defend himself. We would have been left with Mueller's opinion and no proper way for Trump to dispute the claim. Mueller decided this was not an appropriate use of his power as an employee of DOJ because of the unique circumstance relating to a sitting President.


Now that scenario, Mueller saying Trump obstructed but he couldn't prosecute, would have been extraordinarily unfair to Trump because the Congress would have used Mueller's untested opinion as a form of evidence against Trump. Here again we see how Mueller did not help Democrats. This would have been the most direct way to ensure Trump would be impeached. Even Barr says Mueller could have concluded Trump should have been prosecuted but for the OLC decision. Yet Mueller didn't do the one thing completely within his power to do that would have cost him nothing, that he would never have had to defend in court, that would have resulted in impeachment and that would have put a huge finger on the scale in the removal process. Curious given the intelligentsia's claims.


Where has all of this left Democrats? Well lets just say they aren't teed up. In fact they are the opposite of teed up. Somehow Muller was able to both inflame resistance Democrats with all his "evidence" while not actually providing anything that would move any of the moderate Democrats that are the key to their majority. They're tied in knots.


"As pressure has mounted in recent weeks on House Democrats to move more aggressively against Trump, Pelosi has demonstrated the firm grip she wields over her caucus — quashing, at least for now, the push for impeachment." https://www.washingtonpost.com/politics/push-to-impeach-trump-stalls-amid-democrats-deference-to--and-fear-of--pelosi/2019/06/16/d6df3d44-8d2c-11e9-8f69-a2795fca3343_story.html?noredirect=on&utm_term=.a7a12bc4bba2

I have taken to using the hashtag #MullerFail recently as a way of highlighting my point. As with so much else regarding Donald Trump you are left to wonder if he is just the luckiest son of a bitch ever. Or maybe Mueller wasn't trying to get Trump impeached. Maybe Mueller was doing the job he was hired to do. Investigate Trump Russia. Tell the truth about whether the President had colluded with Russia. Deliver a credible report that would clear the President who had not colluded.


He did his job. It's over. What lingers? Two main things. First is, if Trump didn't collude why did the DOJ and FBI invest so much time and resource investigating him? Was their an ulterior political motive? Were the actions taken in pursuit of Trump criminal? Then we also need to resolve a President's freedom to use his Article 2 powers and the limitations on an FBI that decides it needs to reign in the President. The debate that Mueller sparked in not concluding on obstruction needs to be resolved by Congress. Not impeachment but the entire premise of the DOJ or FBI investigating the President.

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