Okay, so here’s the takeaway from the movie Robert Mueller’s Day On: the Democrats didn’t get what they wanted – they wanted too much, namely an unequivocal declaration that the President repeatedly broke the law and should be prosecuted or impeached – but they got what they needed: the building blocks to go forward with subpoenas and more hearings.
The Republicans mostly made specious, indignant speeches attacking Mueller personally, and when they did ask questions, they were about the infinity of things Mueller didn’t investigate, not about anything he actually investigated or found, especially not what he found. Their performances had no purpose other than to keep alive conspiracy theory rants on Fox News and other far-right fringes that the Trump political team is counting on to shore up their base just long enough to last through the next election.
To those of us old enough to vividly remember the Watergate hearings, it’s deja vu all over again: the Democrats methodically encircle the presidency while the Republicans continue to call the whole affair a partisan hit job. Until the whole facade collapses back on them.
In case you missed it all, the two linchpin interrogations came six hours apart, one at the very beginning of the morning hearing, and the other very near the end of the afternoon hearing, a total of about 10 minutes altogether.
First, the chair of the House Judiciary Committee, Jerrold Nadler, simply read key statements from Mueller’s report, getting him to repeatedly agree that Trump was NOT exonerated on the issue of obstruction of justice, and that Trump was NOT telling the truth when he claimed the report did exonerate him. For the rest of the hearing, Democratic members wonkily prosecuted each of 10 counts of obstruction, getting Mueller to concede that the report detailed the elements of commission of obstruction: an overt act, its connection to an ongoing investigation, and its clear intent to impede that investigation. This is what you would do with your first witness in a lengthy, complicated trial of a white-collar crime, where you know you’ll have to present eyewitnesses to each of those counts in order to get a conviction.
The second shoe drop came via a member of the House Intelligence Committee, Sean Maloney. His line of questioning concerned Mueller’s decision not to subpoena Trump in order to question him directly. Mueller’s labored answer was that there had been more than a year of negotiation with the White House that made it clear Trump wouldn’t voluntarily testify under oath and would fight any subpoena, and that would delay the closure of the investigation and the issuing of its report for many months, that the purpose of agreeing to accept written responses to submitted questions was to strike a balance between getting some form of answers from the President and being able to draw the investigation to a end. Maloney was able to get Mueller to admit that, in fact, the special counsel’s office didn’t really need Trump’s testimony on the question of obstruction because the findings and the report made clear that there was ample evidence to draw a conclusion (wink wink) as to Trump’s acts and intentions. On top of that, some of Trump’s answers were clearly contrary to facts. Both threads made the chaperones seated behind Mueller very uncomfortable.
What’s the next step? The House now needs to begin issuing subpoenas to compel the testimony of the members of Trump’s inner circle cited in the report, and to compel the Justice Department to provide much of the documentary evidence collected in the course of the investigation. Trump and his lawyers have made clear they will fight every such subpoena, forcing the federal courts, and ultimately the Supreme Court, to settle the constitutional crisis.
How is that likely to turn out? No one knows. The only Supreme Court case that comes close was U.S. versus Nixon, which held that the White House was required to turn over documents and tapes to a federal grand jury, an arm of the judicial branch of government.
Lower courts are likely to hold that a similar power accrues to the legislative branch, owing to the intent of the framers to create “three coequal branches of government.” In addition, Article I creates the legislative branch and explicitly gives it the power of impeachment over office-holders in the other two. Without the power to investigate, the impeachment power would be rendered impotent. Furthermore, nowhere does the Constitution give the President the power to defy lawful actions by the courts or Congress.
But does any of that matter to the current highly politicized Supreme Court? It’s a scary question. It’s certain the four Democratic appointees would side with the powers of the courts and Congress as equal branches of government vis-à-vis the executive branch. But would a single Republican appointee join them?
As the Supreme Court goes, so goes the future of American democracy…
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