5 losers and 0 winners from Robert Mueller’s testimony to the House of Representatives

Former special counsel Robert Mueller’s congressional testimony on Wednesday was a farce and a tragedy.

Mueller testified before both the House Judiciary Committee and the Permanent Subcommittee on Intelligence, saying very little of substance beyond what was already contained in the text of his report. He responded to questions with monosyllables or requests for clarification. According to a count by NBC, Mueller “deflected or declined to answer questions 198 times” during the two three-hour hearings.

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Democrats were hoping for more, something that would highlight the truly damning nature of Mueller’s report. But with only a couple of exceptions, Democrats failed to get big-ticket moments or even notable responses. Republicans embarrassed themselves by badgering Mueller with Fox News fever-swamp conspiracy theories. Pretty much none of this served the essential goal of enlightening the American public on the really important facts of the Mueller investigation, a look at one of the most serious political scandals in American political history.

There were, in short, no real winners from Mueller’s day on Capitol Hill. But an awful lot of people and institutions came off looking worse than they did before.

Loser: Robert Mueller

Very few living figures in American public have been as mythologized as Robert Mueller.

Democrats have built him up as a prosecutorial Superman working quietly working behind the scenes to save the republic from Trump’s lawlessness; Rep. Jackie Speier (D-CA) began her questioning by telling him “you’re the greatest patriot in this room today.” Republicans, meanwhile, have cast Mueller and the “18 (or 13) Angry Democrats” who worked for him as part of a conspiracy to undermine a duly elected president.

In the end, Robert Mueller is just a man. And that was painfully on display at today’s hearings.

Andrew Harnik/AP

Mueller’s answers to questions were often fumbling and imprecise, especially when discussing the second half of his report (on obstruction of justice). His answers were clipped and uninformative, and at times actively confusing.

For example, take this exchange with Rep. Ted Lieu (D-CA). Lieu asked Mueller if “the reason” he “did not indict Donald Trump is because of OLC [Office of Legal Counsel] opinion stating that you cannot indict a sitting president, correct?” Mueller replied, “That is correct.”

This was read by several observers as evidence that Mueller in fact believed Trump committed obstruction, and did not prosecute only because of the OLC guidance. Such an admission would have been a bombshell, contradicting both the report and Mueller’s previous statements, and accordingly, Democratic-leaning social media went wild.

But that’s not what Mueller meant. He was later forced to clarify his answer, explaining that he did not decide, one way or the other, whether Trump committed obstruction.

This confusion easily could have been avoided had Mueller been responsive to the questions he was asking. But he seemed to have such a circumscribed view of his own responsibilities that he didn’t want to answer questions beyond simple statements or citation of the full report. The problem, as the Atlantic’s Ron Brownstein points out, is that the report itself is long and dense — badly in need of clarification by its author:

The performance was so bad, in fact, that some legal experts were openly questioning whether there was something wrong with Mueller’s health.

This is the most obvious way the Mueller hearing was a mess. He clearly thinks it’s important for Americans to understand the results of his findings, even giving a whole press conference about them after the report’s release. Yet given a much bigger platform, he abdicated this vital responsibility. Mueller either could not or would not perform the essential job of enlightening the American public about an issue of vital national importance.

Loser: the House of Representatives

But Mueller wasn’t the only problem here. Representatives from both parties, in very different and non-equivalent ways, performed poorly.

Democrats came into the hearing expecting Mueller’s monosyllabic approach, which was eminently predictable given press reports that he’d stick to the report. They had hoped that asking him pointed “yes or no” questions would help establish and reinforce the damning facts of the report. This ended up making for less compelling television than they may have thought.

But it also failed to anticipate how Mueller’s hesitancy would interact with the Republican approach, which was basically to insist that Trump did nothing wrong and yell a series of baroque conspiracy theories at Mueller.

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Rep. Matt Gaetz (R-FL) argued that the Steele dossier, an early if overstated warning of Trump-Russia connections, was itself some kind of second-level Russian false flag. Rep. Devin Nunes (R-CA) zeroed in on the theory that Joseph Mifsud, the Russian-linked professor who approached Trump adviser George Papadopoulos with an offer of Russian help, was really a “Western” intelligence operative. Rep Louie Gohmert (R-TX) submitted an article he wrote for Sean Hannity’s website into the record. (The title? “Mueller Unmasked.”)

This wild conspiracy theorizing didn’t actually undermine Mueller’s report on the substance. But the former special counsel often didn’t engage or push back against these insinuations.

“The decision was made to ignore the Republicans’ conspiracy theory-driven sideshow,” a Democratic staffer told Vox’s Alex Ward during the hearing. “We didn’t anticipate that Mueller would allow the mischaracterizations to go unanswered, but I don’t think that will impact the major takeaways from the hearing.”

It’s that last piece of judgment that I question. The “takeaways” from the hearing are whatever the people watching say they are. And Mueller’s ineffective response to the Republican assault, together with the forgettable Democratic strategy, seemed (at least to this watcher) to muddy the waters considerably.

Loser: impeachment

A lot of smart people think the Mueller report’s findings — in particular, the 10 separate examples of Trump attempting to interfere with the Russia investigation — constitute strong grounds for impeaching Trump. I’m sympathetic to this view in theory; the report supports the interpretation that the president’s campaign attempted to collude with a hostile power’s interference in a US election and the president then engaged in a cover-up afterward.

But if Mueller is supposed to be the star witness, then the case for impeachment is considerably weaker than I thought.

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Senate Republicans won’t kick Trump out of office. So the political case for pursuing impeachment rests primarily on the consequences of such a strategy: whether it will help turn out Democrats to vote against Trump in 2020, or prop up the rule of law by sending a message that Trump’s actions were unacceptable. But for impeachment hearings to do either of those things, they need to be effective.

Today’s hearings suggest that they might not be, that instead they could feature boring and confusing testimony from people involved in the investigation, ineffectively narrow Democratic questioning, and Republicans successfully pivoting the conversation to conspiracy theories. The House, as currently constituted, might not be a good venue for this kind of effort.

At the very least, the dreary spectacle probably will not have convinced any impeachment-skeptical Democrats to change their position. It’s a point that Larry Tribe, a Harvard law professor and a prominent #resistance Twitter impeachment supporter, grudgingly admitted:

House Speaker Nancy Pelosi, who has repeatedly refused to hold impeachment hearings, will probably be a little pleased. But anyone hoping for some more aggressive action from the House will be disappointed.

Loser: President Trump

You might think Trump would be cheered by Mueller’s weakness and the Democrats’ weak strategy. And indeed, a Trump ally described the mood inside the White House as “euphoria” to Politico.

But the president shouldn’t be too happy: The hearing brought more attention to his unconscionable conduct over the course of the Russia investigation. And one of the few breakout moments of the day made clear that he might still end up getting indicted.

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During the House Judiciary half of the hearing, Rep. Ken Buck (R-CO) asked Mueller about a potential Trump indictment on obstruction of justice charges. Specifically, he asked if Trump could potentially be indicted after he leaves office, when OLC ruling on indicting sitting presidents no longer protects him.

The former special counsel’s answer was simple: “Yes.”

This probably is not the answer the GOP members of the committee wanted. One of the key GOP arguments was that because Mueller didn’t indict Trump, he should be considered exonerated due to “the presumption of innocence” in the criminal justice system. Rep. John Ratcliffe (R-TX) was the most forceful advocate of this view.

But if Mueller still thinks Trump could be tried after he leaves office, this analysis no longer makes sense. Mueller didn’t conclude that there was insufficient evidence to try Trump, but rather that Trump could not legally be prosecuted. It’s also really bad for Trump personally: It’s now firmly established that if he loses the 2020 election, he could be charged if the next president’s Justice Department opts to pursue it.

Buck’s question damaged the Republican strategy for the hearing — an embarrassing own goal in the short term. But it also should undermine whatever confidence the president and his allies have that they will be immune from justice forever. If I had done what they did, I’d be more than a little worried.

Loser: the Mueller report

We learned, in the first half of the Mueller report, that two Trump campaign officials, campaign manager Paul Manafort and Manafort’s deputy Rick Gates, were regularly providing polling information to a Russian national whom Gates believed to be a “spy.” We learned that Trump foreign policy adviser George Papadopoulos attempted to arrange meetings between Trump and Putin, and that Trump personally approved Papadopoulos’s work on this front.

When you add these findings to what we already knew about collusion before the report’s release — like the Trump Tower meeting and Donald Trump Jr.’s remark that “if it’s what you say I love it” — it paints a damning picture of the campaign as an organization that was both actively seeking to cultivate a relationship with the Russian government and willing to work with it to acquire damaging information about its political opponents. Even if you don’t think this is “collusion,” a term with no clear meaning, it’s still shockingly poor and unpatriotic judgment.

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The obstruction section of the Mueller report is even worse than the Russia section. The 10 distinct instances of Trump actions that could constitute obstruction include repeated attempts to fire Mueller, firing FBI Director James Comey and admitting on national television that it was because Trump was angry about the Russia investigation, and instructing subordinates to lie on his behalf.

The obstruction segment of the report was so damning that many observers saw it as an impeachment referral. Mueller acknowledged that he couldn’t prosecute Trump so long as the OLC memo remained in effect, but reading between the lines, it sure sounds like he believed Trump committed obstruction and wanted Congress to go after the president in the way he couldn’t.

But that’s the kind of thing you’d know from reading the 448-page report — which is, as Rep. Adam Schiff (D-CA) said Sunday, a “pretty dry prosecutorial product.” The aim of the hearing, at least in part, was to bring these facts to life.

The hearing failed on that front. It failed for all the reasons we’ve discussed so far, from Mueller’s refusal to speak to Democrats’ small questions to Republicans’ obscurantism. Mueller’s refrain of “that’s reflected in the report” or “I direct you to the report” failed to do much to make his important findings sound as important and devastating as they really are.

This might be easier if everyone already knew about the report’s findings or were inclined to read it with an open mind. But in a world where people don’t read massive reports, and those who do read them with partisan eyes, Mueller and those who take his charges seriously need to work overtime to get people to pay attention. They didn’t do their duty — and independent observers didn’t do as much as they could to help them along.

Jen Kirby and Alex Ward contributed reporting to this piece.

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