In looking at the Mueller report, we can think of the investigation itself, the release of the investigation, and what happens next as a three-act play. While the investigation has ended, we’re far from the end of the story. But before we consider what’s next and the work that remains for Congress, we should reflect on what has already happened. Special Counsel Robert Mueller’s investigation is critically important.
Indeed, it is one of the most important federal government investigations since the Project On Government Oversight’s (POGO) founding nearly 40 years ago. The inquiry began amid troubling questions about the integrity of U.S. elections and our system of checks and balances, and grew to raise additional concerns about the scope of foreign influence, other undue influence, and whether the nation’s commitment to the rule of law extends to the president.
In Act One, it was unclear if the special counsel would be allowed to complete his job. Press reports indicated the President and his allies were pressuring Department of Justice officials to limit or stop the investigation. POGO worked to build bipartisan support to protect the special counsel’s office from any potential White House efforts to interfere. Now we know we were right to be concerned.
Act Two was equally ominous. The bulk of the investigation—including the 34 indictments, guilty pleas, and convictions—was largely conducted behind closed doors. And it wasn’t clear how much the public would learn by the time it was through. For those of us who are wary of executive and prosecutorial power, it seemed almost quixotic to count on this investigation for the kind of accountability that would more rightfully come from Congress.
We at POGO are well acquainted with excessive government secrecy. So we were braced for several troubling outcomes from the investigation. First, we worried that the report would be completely withheld from both the public and Congress. Second, we worried that the report would be made public, but would be so heavily redacted that it would be meaningless. Or, third, we worried that Congress would not have access to the unredacted report and underlying documents. But the close of Act Two brought a surprise. With the release of the report, the public now has access to a redacted report that nonetheless offers an extraordinary amount of detail, and some Members of Congress will see the unredacted report (although it is an abomination that only a select group will receive the unredacted report, and it’s unlikely that any staff will see it).
With that, Act Three begins. The report’s first volume confirms “numerous links between the Russian government and the Trump campaign.” The report details a terrifying amount of Russian interference in the 2016 election, as well as illicit behavior by some Americans, including President Trump’s former campaign manager Paul Manafort, the President’s first national security advisor Michael Flynn, the President’s one-time campaign advisor Roger Stone, and all-around mercenary Erik Prince, as well as Russian businessmen who profited by selling their foreign clients access to the Trump transition team (if that’s not the swamp, I don’t know what is).
Mueller concluded there was no criminal conspiracy because his team did not find evidence that the Trump campaign intentionally worked with the Russian government to interfere in the 2016 election in violation of campaign finance or other laws. The report includes ample evidence, however, of extensive communications between people with ties to the Russian government and the Trump campaign. And campaign finance experts have pointed out that Mueller got the legal standard wrong there, and that established legal precedent would not have required a formal agreement between the Trump campaign and the Russian government for their interactions to be considered a campaign-finance violation.
While the White House
and Attorney General William Barr were quick to declare that the investigation found there was “no collusion,” the question of whether there was “collusion” is ultimately a red herring. Collusion is not a federal crime, and those arguing that Mueller weighed in on collusion between the President and the Russian government are incorrect. The report never says there was “no collusion”—and in fact states
that because “collusion is not a specific offense or theory of liability” under U.S. law, the investigation did not draw any conclusions about it.
Not all of the information Mueller sought was available to his team for a variety of reasons, ranging from information being shielded by legal privilege, to individuals providing false or incomplete testimony to federal investigators, to people and documents being unavailable because they were not in the United States.
The first volume leaves crucial questions unanswered. Answering these questions will require access to people and documents that Congress has more power to gain than the special counsel’s office did. Volume I also demonstrates the need for serious reforms to strengthen election security and curtail forms of currently legal foreign influence. While Congress has begun working on legislative fixes to address vulnerabilities in both of these areas, any additional legislative reforms to address gaps in the law revealed by the Mueller report will require Congress to undertake thorough oversight to understand how to best protect our democratic institutions.
Volume II is the real gobsmacker. It compellingly makes the case that in ten instances, President Trump may have obstructed justice. Mueller provides an extensive analysis to refute Attorney General Barr’s position (and that of all those who argue for virtually limitless executive power) that it is essentially impossible for a president to obstruct justice—more or less placing a president above the law.
Mueller did not make a “traditional prosecutorial judgment” as to whether President Trump obstructed justice, and therefore doesn’t say one way or the other whether the President’s conduct warrants indictment. The principle reason he punts on this question is he relies heavily on analysis by the Department of Justice’s Office of Legal Counsel (OLC), which asserts that sitting presidents cannot be indicted.
This analysis is flawed, as it effectively puts the president above the law, which we believe fundamentally contradicts the Constitution. Furthermore, as POGO has long argued, the OLC is not the final word on legal interpretations and is biased toward allowing executive branch impunity on all manner of important issues. And while Mueller outlines several arguments as to why he also thinks this is the case, he has left it to Congress to determine what to do about President Trump’s pattern of troubling behavior that he lays out in the report. Mueller repeatedly and expressly states that he cannot exonerate the President of the crimes in the ten instances he details. But, frustratingly, he stops there.
Here is the pivotal takeaway: The Justice Department—through the theories expounded by the nation’s chief law enforcement officer and through departmental policy—truly holds presidents above the law. No person other than a president could get away with the actions described in the report and not face prosecution.
But even if you accept the OLC opinion as legally sound, it would not apply to a president who is no longer in office. OLC essentially concludes that a sitting president is too busy with important matters to be bothered with a criminal prosecution. However, the OLC opinion creates a further conundrum, because the statute of limitations for prosecuting crimes such as obstruction of justice is generally five years. If President Trump wins reelection, his second four-year term would likely place him safely on the other side of possible prosecution for obstruction offenses described in the Mueller report.
For this reason, it is important to note that Congress has a constitutional avenue for holding presidents accountable for their actions—impeachment.
In fact, Mueller himself clearly makes that case. He notes that he did not pursue a traditional prosecution decision not only because of the OLC opinion, but also because doing so would “potentially preempt constitutional processes for addressing presidential misconduct.” That sentence is footnoted with a reference to Article I, Sections 2 and 3 of the Constitution, which the report describes as “discussing relationship between impeachment and criminal prosecution of a sitting President.” As such, contrary to what House Majority Leader Representative Steny Hoyer (D-MD) said Thursday, impeachment should not be off the table.
Like Volume I, Volume II describes several instances in which Mueller was not able to access information—for example, because it was shielded by attorney-client privilege—that Congress would be able to access. Because Congress generally does not recognize the common-law privileges that hindered Mueller, Congress needs to conduct its own inquiry and access that information. (As I testified in 2017, Congress should not have been waiting for Mueller to finish his investigation to begin its own investigations.) Congress has an entirely different and complementary set of powers and responsibilities in overseeing the executive branch.
For starters, lawmakers should seriously examine the proper role and influence of the Office of Legal Counsel on executive branch actions, given this office’s long-standing tendency to provide cover to presidential conduct. Congress should also determine whether current laws are up to the task of safeguarding the integrity of the government, and enact any necessary reforms. And, finally, Congress must decide whether the President’s actions warrant impeachment.
Even the redacted version of the report offers ample evidence for Congress to work from—and the time to begin that work is now. We don’t know where the plot goes from here, and we certainly don’t know how Act Three will end. But before the curtain falls, Congress must decide if the president is above the law.