Like almost everyone else, I thought that Robert Mueller was the right person to conduct the Russia and obstruction investigation. I believed that Mueller would rigorously pursue every lead and forthrightly reach conclusions about the evidence that he uncovered. Yet, disappointingly, the special counsel did neither.
The special counsel inexplicably failed to interview the president or his son Donald Trump Jr. The special counsel’s report says that “many of the core issues in an obstruction-of-justice investigation turn on an individual’s actions and intent.” Yet Mueller failed to obtain evidence of the president’s intent on obstruction through an in-person or even a written interview.
Mueller’s failure to pursue presidential testimony does not withstand scrutiny. The report says, “we had the authority and legal justification to issue a grand jury subpoena to obtain the president’s testimony.” However, Mueller declined because “in view of the substantial delay that such an investigative step would likely produce at a late stage in our investigation.”
Yet there is no time limit on a special counsel’s investigation. Prior investigations have extended well beyond the 22 months of the Mueller probe. Besides, anyone with the slightest knowledge about Donald Trump would know that he would never submit to an interview without compulsion. Mueller should have issued a subpoena much earlier than the late stage of the investigation. Indeed, the special counsel had engaged in negotiations about possible Trump testimony for more than a year.
The report also claims they had sufficient evidence to assess whether the president obstructed justice without an interview. Clearly, they did not. The investigation did not reach a final conclusion about obstruction at least in part because of the difficulty in assessing whether the president acted with corrupt intent.
Donald Trump Jr. attended the June 2016 Trump Tower meeting that according to email evidence would provide dirt on Hillary Clinton as “part of Russia and its government’s support for Mr. Trump.” Trump Jr. responded, “if that’s what you say, I love it.” Yet Mueller did not find that this meeting established a conspiracy with the Russians or a violation by Donald Jr. of the legal prohibition against soliciting or taking anything of value from foreign nations.
The report cited the difficulty of meeting “the substantial burden of proof on issues of intent (‘willful’ and ‘knowing’) and the difficulty of establishing the value of the offered information.” Yet the Special Counsel could have gleaned critical and perhaps dispositive information on both these matters through interviews with Donald Jr.
The Mueller report also noted that Donald Jr. had correspondence with WikiLeaks prior to its release of stolen emails from Hillary Clinton’s campaign chair John Podesta. Surely, an interview with Donald Jr. could have cast light on meaning and implication of these contacts.
The Mueller report lays out ten reasons why the president may well have obstructed justice. These included attempts to fire the special counsel and the ordering of subordinates to act illegally — which they declined to do on their own volition. Yet, despite this overwhelming evidence, which closely parallels the evidence on obstruction of justice committed by President Richard Nixon, Mueller failed to reach the obvious conclusion that president committed the crime of obstructing justice.
The excuse that under Justice Department guidelines a sitting president can’t be indicted doesn’t wash. Mueller still could have found a credible case of obstruction without recommending an indictment. The obstruction case against President Trump is far stronger than the case against Bill Clinton and pertains to much more important matters than covering up a consensual sexual affair. Former Independent Counsel Kenneth Starr who found “substantial and credible information that President Clinton obstructed justice,” gave Mueller a dispiriting “incomplete” on obstruction, which left the door open for Attorney General William Barr to exonerate the president.
The excuse that Mueller left the final determination on obstruction to Congress is equally without merit. Congress will begin an impeachment investigation of the president only if the American people demand it. But everyday Americans will not plow through the details of the lengthy, complicated redacted report. They will remember only that the special counsel declined to conclude that the president committed obstruction of justice or engaged in any other criminal activity.
Already, House Majority Whip Steny Hoyer has said, “Based on what we have seen to date, going forward on impeachment is not worthwhile at this point.” This means that the president will not be held accountable for past actions and can continue to disregard the law and the Constitution without fear of consequences.
Scattered investigations in several House committees are no substitute for the focus and formality of an impeachment investigation and will certainly not guarantee the election of a Democratic president in 2020. Once again, the Democrats seem to be playing not to lose, which practically guarantees that they will lose.
Allan J. Lichtman (@AllanLichtman) is distinguished professor of history at American University in Washington, D.C.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.