Frankly, I’m surprised it took as long as it did for a Republican on the House Judiciary to get to this obvious point. Rep. John Ratcliffe went to the heart of an assumption made by Robert Mueller, his report, and House Democrats on the approach taken in regard to Donald Trump, especially on obstruction. The report addresses Trump’s culpability from the perspective of requiring positive exoneration from charges of committing crimes. Ratcliffe wonders where Mueller found that in the job description of any prosecutor:
Rep. John Ratcliffe asks if Mueller can cite an example besides Trump where the DOJ "determined that an investigated person was not exonerated because their innocence was not conclusively determined"
— CBS News (@CBSNews) July 24, 2019
Rep. John Ratcliffe slams Robert Mueller for writing "about decisions that weren't reached" on obstruction of justice: "I agree with the Chairman … when he said Donald Trump is not above the law, he's not. But he damn sure shouldn't be below the law" https://t.co/jFAp2RJoaI pic.twitter.com/UCs0PUtXrH
— ABC News Politics (@ABCPolitics) July 24, 2019
Prosecutors are not there to prove innocence. Unless they find probable cause that a crime has been committed, they are supposed to close the file and not comment on the degree of exoneration they have determined. In fact, it might be accurate to say that prosecutors aren’t in the exoneration business at all, unless it’s to eliminate a suspect in a case in order to prosecute another suspect.
This has been a constant criticism of the Mueller report since its publication, especially Volume II. In that sense, Mueller committed the same sin that James Comey did with Hillary Clinton in July 2016. His report, and Democratic interpretations of it, start with Trump being considered guilty and then step backward away from presenting a prosecutable case. Hence, Mueller ended up making his report a “non-exoneration,” which as Ratcliffe points out strenuously, that’s a wide departure from the prosecutorial role not just within the DoJ but within the long tradition of American jurisprudence.
In response, Mueller claimed that this was a “unique case,” and there’s some logic to that. It’s a case involving a sitting president investigated by a special counsel under a statute that requires a report on any prosecution or declination decisions. William Barr chose to release the report with all of this detail on the declination decisions involving obstruction, but Mueller wrote it as if Trump had to be proven totally innocent to avoid it. But as Ratcliffe points out, half of the report relates to non-decisions, which is entirely outside the purview of the statute. “You wrote 180 pages,” Ratcliffe points out, “on decisions that weren’t reached.”
At any rate, none of this is new, and from what I’ve gleaned from the testimony and the coverage, nothing much else is new either. The one major takeaway thus far is what a poor witness Mueller makes in this arena. He seems to be having trouble keeping up:
Mueller having a hard time following the questions on first pass. Asking members to often repeat their questions. In his defense, the questions can be long and meandering, though it comes across as if he’s uncertain
— Manu Raju (@mkraju) July 24, 2019
In his first major cross-examination from Doug Collins, the prosecutor contradicted his report on the difference between collusion and conspiracy, and then reversed himself after reading the reference. So far he’s not coming across as an authoritative voice even on his own work, and is mostly just uttering one–word answers when Democrats quote from the report itself. Democrats may well wind up undermining the authoritative voice they had on paper as a result of their insistence on getting Mueller in the flesh.
Addendum: Looks like Ratcliffe picked up an interesting new fan:
Pretty good questioning by Rep Ratcliffe at the start #MuellerHearing
— Preet Bharara (@PreetBharara) July 24, 2019
Update: Come on, man — this one’s a gimme. The Fusion GPS issues might be “outside my purview” as Mueller later declares. Given the use of the Steele dossier by the FBI in investigating Russia collusion and its role in potential obstruction actions by Trump, how can Mueller be confused by its mention in this hearing?
This exchange between Rep. Steve Chabot and Robert Mueller raised eyebrows in our live chat.
“If Mueller doesn't know who Fusion GPS is, this could be a long hearing,” said reporter @joshgerstein.
— POLITICO (@politico) July 24, 2019