Even before Robert Mueller’s appearance before Congress on Wednesday reached the halfway point, some in Washington concluded that it was a major setback for impeaching President Donald Trump. “So far, this hearing is not revealing new ground, perhaps making it less memorable than it might otherwise be,” The New York Times’ Adam Goldman wrote on the newspaper’s liveblog. “By tomorrow it could be forgotten in this frenetic news cycle.” His colleague Maggie Haberman concurred. “Adam, I think you’re being generous with ‘by tomorrow.’”
Other D.C. reporters agreed. “Those who wanted to begin impeachment proceedings needed bombshells from the former special counsel,” Politico’s Playbook newsletter asserted. “Mueller gave them nothing besides affirmation about what was in his report, and a series of sidesteps when he did not want to answer questions.” Chuck Todd, the moderator of NBC’s Meet the Press, concluded that Mueller’s low-key, constrained testimony was a “disaster” because House Democrats were looking for a “dramatic moment that would capture the imagination.”
The focus on congressional theatrics and his demeanor misses the point. In substantive terms, the former special counsel in the Russia investigation affirmed several key interpretations of his report and its findings. He also said nothing that diminished his reputation for impartiality and professionalism, hewing instead to his legally defined role. While the political press was busy lamenting that Mueller didn’t break character and accuse the president of impeachable crimes, it missed the news: Mueller, in his own way, underscored the case for Trump’s impeachment.
Mueller’s evasiveness frustrated members from both parties. He declined to answer dozens of questions about the particulars of his report, the sprawling legal proceedings that surround it, or any conclusions that he didn’t write down himself. Some of the opacity was beyond his control. The Justice Department notified him earlier this week that it would assert privilege over just about everything not in the report. Some of the legal proceedings sparked by his inquiry are still ongoing, including the forthcoming trial of Trump associate Roger Stone. Other refusals seemed to reflect a desire to avoid idle speculation or becoming a pawn of Congress’ relentless partisanship.
At key moments, however, Mueller made himself perfectly clear. He began by contradicting one of the president’s key talking points about the Russia investigation. After Attorney General Bill Barr summarized the report’s findings in April, Trump claimed that Mueller’s inquiry had amounted to a “total exoneration” of himself and his conduct. He continued to claim vindication after the report’s full, damning contents became public. “Did you actually totally exonerate the president?” Representative Jerry Nadler, the Democratic chair of the Judiciary Committee, asked. “No,” Mueller replied.
Some Republican lawmakers criticized Mueller for this phrasing, arguing that it inverted the presumption of innocence. They argued that if he couldn’t bring charges against the president, he shouldn’t have released his findings on the matter. That misunderstands the unique legal situation in which Mueller found himself. In the report, Mueller explained that he still investigated whether the president obstructed justice “in order to preserve the evidence when memories were fresh and documentary materials were available.” The unspoken rationale was that such evidence could be used to prosecute Trump after he leaves office or impeach him now.
To that end, Mueller came exceedingly close to confirming that he only didn’t bring charges against the president because Justice Department policy prevents it. “The reason again that you did not indict Donald Trump is because of the [Office of Legal Counsel] opinion stating that you cannot indict a sitting president, correct?” Representative Ted Lieu, a California Democrat, asked. “That is correct,” Mueller replied. Perhaps realizing that he had let something slip past his shield of impartiality, the special counsel later clarified that it was “not the correct way to say it” and that his office “did not reach a determination as to whether the president committed a crime.”
His initial answer cut to a paradox in volume two of the Mueller report. The special counsel laid out in damning detail ten instances where Trump tried to obstruct justice, but ultimately “declined to reach a traditional prosecutorial decision” on whether to bring charges against the president for it. Mueller explained that he was bound by an infamous 1973 opinion from the Justice Department’s Office of Legal Counsel, which argued it would be unconstitutional to indict a sitting president. I wrote last month how that conclusion, which came about as part of DOJ’s efforts to prosecute Vice President Spiro Agnew, rests on shaky ground.
While Mueller remained elliptical on whether he would have charged Trump but for the 1973 opinion, he was far clearer about the prospect of doing it in the abstract. “Could you charge the president with a crime after he left office?” Buck asked. “Yes,” he replied. “You believe that he committed—you could charge the president of the United States with obstruction of justice after he left office?” the lawmaker asked. “Yes,” Mueller said. It’s up to the audience to decide whether he specifically meant Trump or simply spoke about a hypothetical president who committed hypothetical crimes in a hypothetical White House.
The other obvious remedy to a sitting president’s criminal behavior would be impeachment. No member of Congress directly asked Mueller whether he thought the House should begin those proceedings against the president. They did not need to. It’s plainly obvious from his report’s structure and contents that it’s meant to serve as a roadmap for the House of Representatives to hold Trump accountable. Mueller personally hinted at that possibility in his May press conference, where he declared that the 1973 OLC opinion “says that the Constitution requires a process other than the criminal-justice system to formally accuse a sitting president of wrongdoing.”
“That process other than the criminal-justice system for accusing a president of wrongdoing—is that impeachment?” Representative Veronica Escobar, a Texas Democrat, asked. “I’m not going to comment on that,” he replied. Escobar followed up by asking about a line in the report where he said he didn’t want to “potentially preempt constitutional processes” during the investigation. “What are those constitutional processes?” she asked. “I think I heard you mention at least one,” Mueller replied, tipping his hand.
Whether House Democrats will use that constitutional process remains to be seen. Speaker Nancy Pelosi still refuses to support impeachment hearings against Trump, defying both the growing calls in her caucus for accountability and the clear-cut evidence that justifies it. The Democrats’ hope that Mueller would rescue them from that decision—either by indicting Trump himself or by explicitly demanding that lawmakers do what he can’t—died on Wednesday. The special counsel’s performance simply made clear his unspoken message all along: I’ve done my job, now you do yours.
It’s no surprise that those who view impeachment as a cable-news narrative saw little of value in Mueller’s hearing. There were no bombshells to be found, but that’s largely because the bombs have already gone off. Maybe that’s why some pundits decided that speculation about Mueller’s health was more salient to the American public than evidence of criminal wrongdoing by a sitting president. But those who view impeachment as a basic civic question—and one that’s infinitely more urgent, at this critical juncture in American democracy, than whether Democrats or Republicans “won” the day—likely drew a much different conclusion.