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Old Lessons for the Mueller Hearings about Listening and Learning from dean Nick Allard

August 12, 2019 By Nicholas Allard
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“Enjoy life, don’t struggle to make sense out of the painful and incomprehensible. Why does anyone need yet another commentary about former special counsel Robert S. Mueller III’s upcoming Congressional testimony? You have many other important things to do instead of writing about it. It’s an unnecessary distraction from your work”.

This wise and tempting advice came from a young lawyer whose judgment I respect, my son Tyler. But then this morning I was reminded of an old story about two sisters, Martha and Mary, who were visited long ago by a famous relative. He arrived with many of his students who he was teaching about the greater good and justice. Martha was upset that Mary was spending her time listening to the inspirational teacher’s lessons rather than helping Martha cook and accommodate their guests. When Martha complained, the teacher answered that he understood that she was worried about many things but that Mary was focusing on what was more important.

Our times are full of many upsets including threats to the future of the very life of our planet as we know it due to severe weather, climate change and the pollution of our seas and lands. We justifiably also worry about severe threats to peace, equality and justice. Even so, at this moment the future of our constitutional democracy is a critical concern for all Americans. That is because our unique system of limited government serving a free people historically has empowered us to solve big problems and overcome challenges by listening, learning and working together. That, for example, is a lesson of our observance of the 50th anniversary of the remarkable Apollo XI moon landing.

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Now, we all should try to pay more attention and learn the truth about the ongoing investigations into the 2016 election and the conduct of the 45th President of the United States. This is no easy task.

For starters it is hard not to think of the ongoing political saga in cinematic terms given the drama of the enormous stakes involved, the cast of colorful characters, not to mention the difficulty of resisting partisan, oversimplified, and even inaccurate characterizations of the complex and voluminous information and commentary constantly overwhelming us.

Also, the public debate over the Special Counsel investigation is like when millions more people see a film than read the original book. Apparently fewer than three million people have read the 448 pages of the redacted Mueller report. On July 24 millions more will be able to watch the hearing.

Too often we are turned off and snap off the unhelpful partisan commentary drowning us from all sides on television and online. Forgotten are what parents have always taught their children about good etiquette at mealtime: Don’t talk with your mouth full. Don’t interrupt. In the context of political discourse: Digest what you have heard before you speak. Listen to others before you speak.

In contrast, upcoming back to back hearings before the U.S. House of Representatives Judiciary Committee for three hours and the Intelligence Committee for two hours are an important opportunity for the public to hear for the first time and for themselves what was investigated, what is in and not in the report, and Mr. Mueller’s conclusions.

For that reason alone it is preposterous to believe that Mr. Mueller should not testify. What he has to say will be valuable. That is so even if only for him to reiterate by spoken word and to educate the public about the special counsel’s work in his admirably direct and clear language. His testimony matters whether or not the hearings prove to be a make-or-break moment for either the President or his adversaries, or just another scene in the unfolding drama leading to the 2020 election.

Mr. Mueller’s professional and personal reserved nature has outdone Greta Garbo in terms of expectations and spurring interest in what he has to say. Public excitement was unprecedented to hear the famously reclusive international model and silent movie star’s Swedish heavily accented husky low voice for the first time in the hit 1930 film “Anna Christie”. All she said was “Give me a ‘visky’, ginger ale on the side. And don’t be stingy baby”. Nonetheless audiences around the world were captivated by the sound and their appetite for more grew insatiably. The marketing hype over “Garbo talks!” was followed by “Garbo laughs!”, the Hollywood ad campaign to promote her first and only comedy “Ninotchka”. The film which featured Garbo’s droll, hilarious portrayal of a communist apparatchik was banned in Russia.

Well, Mueller had a lot more to say than Garbo at his May 29th, 2019 press conference, and if he is funny at this week’s hearings he will surprise us more than she did.

After two years of disciplined silence the public finally heard the former special counsel talk about his investigation. His softly spoken, carefully chosen, unemotional press conference remarks struck like thunderclaps. With spare unequivocal statements like “if we had had confidence that the president clearly did not commit a crime, we would have said so” Mueller refused to clear the President, contradicted the Attorney General, and provided a roadmap for the considerable work that remains to be done by others.

His quiet phrase “I do not question the good faith of the Attorney General” was a devastatingly polite way to say “we disagree and I believe he is dead wrong.”

Among other things Mueller called for Congress and the American people to protect the integrity of our elections, consider legislation to clarify what is illegal and who is indictable for political misconduct involving foreign interests not to mention high crimes and misdemeanors, and what to do with the mass of evidence he and his team compiled but could not use themselves.

So these prior statements are useful to keep in mind and no doubt will be points of departure for the members of Congress questioning Mr. Mueller.

There will be several other aspects of the hearings worth following:

1. Mr. Mueller is a reluctant witness. Understandable. A root canal can preferable to being the subject of a Congressional hearing. He has indicated that he prefers to stick to the “four corners” of his report. That is not his call to make. It will be noteworthy whether or not the committee accepts that approach. There is no law or statute or policy that limits the scope of his testimony as he suggests. Indeed, fully and patiently explaining his work to the American people who paid for the investigation is a matter of completing the public service Mr. Mueller undertook when he became Special Counsel. Stopping short of this responsibility would mark a failure of fulfilling the Special Counsel’s duty.

2. The Attorney General and the President both have spoken outside the contours of the report. At a minimum, Mr. Mueller can be asked to clarify whether he agrees with their statements that are beyond or inconsistent with the report and to correct them as necessary.

3. More than 1,000 former Republican and Democratic federal prosecutors have signed a letter stating that the Special Prosecutor’s findings would have led to obstruction of justice charges if the Justice Department policy had not been relied on to prevent prosecuting a sitting President. Not surprisingly, the hearings certainly will ask Mueller about several of the examples of interference by the President described in the report. Mueller is likely to say when asked that he will not speculate on whether they amount to obstruction (for the oddly ironic and rather lame reason that if he cannot be sued, it is unfair to any President to even speculate about whether she or he committed a crime because an un-indicted President cannot defend herself or himself in court). Will the committee accept this reticence? Will the members ask Mueller why he listed the 10 examples of Presidential interference if they were not prosecutable and what he expects Congress to do with the information?

4. Speaking of Justice Department policy and an issue not within the four corners of the report, the United States Attorney manual requires that before filing charges prosecutors must decide (1) whether there exists a substantial federal interest in prosecution, and (2) whether there is an adequate noncriminal alternative to prosecution. Mr. Mueller should be asked whether this assessment was made and if not why not?

5. It will be extremely interesting to see whether members of the two committees attack the integrity, impartiality and quality of the work of his team. If this happens he might just come out swinging to defend his colleagues from his enviable strength as a distinguished and honorable person with a sterling reputation. If that happens the President’s supporters will not be amused, and like Garbo, Mueller might be unexpectedly laughing at last.

After the hearings the spotlight will shift back and enormous pressure will likely increase even more on House Speaker Nancy Pelosi. She will have the toughest immediate decision to make: is initiating impeachment in the national interest? This is not at all an easy choice, contrary to what many of the partisans on either side of the question suggest. In both his written report and oral remarks Mueller clearly, explicitly handed off responsibility for following up to Congress and to the American people. He believes it is now immediately the job of Congress to deal with the findings of the Special Counsel investigation. Others may find uses of the evidence of his report later, perhaps after the end of the Trump presidency.

Yet Mueller’s modern day Pontius Pilate like gesture comes at a time very late in the first session of the current Congress, and when an impeachment proceeding could harmfully showcase the dysfunction of Congress and overwhelm our government’s broken branch. It might also dangerously test our imperiled Constitution when there is no guarantee that it can bear the added strain.

Impeachment by the House with no prospect of conviction unless 20 Republican Senators are moved by House investigations or impeachment proceedings to vote to convict and expel the President (presently none have yet broken ranks to support impeachment) could further inflame divisions among the American people which are already driving them apart and away from the American people’s historic general agreement on the common purposes of government.

Even so, inaction could be profoundly worse. The live grenade that the Special Counsel and this week’s hearings will toss in Speaker Pelosi’s lap is dangerous to ignore and needs to be dealt with. Failing to continue to examine and follow the evidence and to determine whether and what Congressional action if any is warranted, would establish the novel precedent that the President and the executive branch are above the law, and not accountable to the people. It could be a risky and possibly irreversible step toward autocracy replacing democracy in America to stop Congressional inquiries at Wednesday’s hearings.

Another difficult consideration for the Speaker is whether there will be a political price that the Democratic Party might pay in the 2020 elections for impeaching the President but failing to convict and remove him from office. This calculation is difficult to make, in part because it is not yet knowable what further evidence might be revealed in many other federal and state inquiries, as was the case in the Watergate inquiry when the existence of the Nixon tape recordings was only discovered well after the Congressional Watergate hearings began.

Yet, from patriotic and long term perspectives, near term political fortunes might be the least important factor in the Speaker’s calculus. If political uncertainty is the consequence of establishing the accountability of the President and preserving our marvelous constitutional system of limited democratic self-government it may be an invoice that should be paid out of short term political capital. The eyes of history are indeed upon speaker Pelosi as she makes her difficult choice.

And that is just for starters. Whether or not Mueller provides an imperative and propels the House of Representatives toward impeachment, he also has already delivered a critically important and formidable “to do” list that must not be ignored.

First and foremost of the work that needs to be done, Mr. Mueller began and ended his May press conference by forcefully and unequivocally explaining that his comprehensive investigation revealed that there had been a concerted effort by elements of the Russian government to interfere with the 2016 United States election. His parting words, the message Mueller wanted to be uppermost on our minds was that this very real harmful threat to the United States should be “the concern of EVERY American”. (His emphasis).

We need to make securing the integrity of voting in America, a top priority. We can begin by acknowledging the problem. The President so far has not done so. No doubt it rankles the President that Mueller stated point blank without naming Hilary Rodham Clinton that the Russian election interference was intended to damage her candidacy. The President cannot abide anything that questions the legitimacy of his election or political genius, such as the fact that Russians helped him by hurting Secretary Clinton, the fact that he lost the national popular election by 3 million votes, or even that his inaugural crowds were relatively small. Denial of Russian interference at this stage in the face of all evidence is not only wrong, it impedes defending the country against future attacks on our elections.

Care also must be taken to guard against so-called election reforms that are merely cynical opportunistic ploys to suppress voting. In fact, voter suppression is precisely the wrong way to protect our election system from foreign or domestic manipulation. During the 1787 Constitutional Convention in Philadelphia, the founders were extremely concerned and extensively discussed how easily our then small new country might be corrupted and its elections controlled by other large powerful wealthy countries. They were worried that foreign powers might gain through corruption and influence what the British could not win militarily in the Revolution. This resulted in Constitutional safeguards to keep out foreign interference in our politics such as the Emoluments Clause and the requirement that the President be a native American citizen. Ironically we have unintentionally made our national elections small again and susceptible to improper influence. This is because we tolerate low voter turnout and also because of the Electoral College anachronism which makes it possible for the loser of the national popular vote to become President.

The Presidential election outcome now can be compromised by manipulating only a relatively small number of votes and precincts in a few key states. We need to find ways to increase turnout, make every citizen’s vote count, and secure campaign finances, and campaign communications and the voting process from corrupt interference foreign and domestic.

Another obvious piece of unfinished business highlighted by the Mueller Report is for Congress to examine the activities of Russian agents and those Americans who they played footsy with and to clarify what conduct is unacceptable and illegal. The laws regarding disclosure and reporting requirements for those receiving foreign contacts and assistance, using foreign communications and propaganda that are campaign related need to be strengthened and updated. We need bright lines about prohibited campaign activity involving foreign interests. For example, Congress should determine or at least clarify whether, as publicly stated by the President personal lawyer Rudolf Giuliani: there is nothing wrong with taking information from the Russians.

Another issue demanding attention that Mueller did not raise explicitly himself but which jumps from his words is whether the Justice Department internal policy precluding indicting a sitting precedent is required by the Constitution, and if not, is it appropriate. Mueller forcefully explained in detail why and how his adherence to this policy constrained his inquiry. Mueller explained that he felt bound by the Justice Department policy. He said, correcting Attorney General Barr’s earlier statements, that the policy was THE critical determining reason why he did not consider either recommending prosecution of the President or even determining whether the President’s actions were illegal and but/for the policy otherwise indictable. The Attorney General’s previous mischaracterization of Mueller’s report in which Barr downplayed the policy as being insignificant to Mueller’s conclusions is alarming. Mueller, however, set the record straight. What remains is for Congress and for legal experts to initiate a thoughtful nonpartisan examination of whether the Justice Department policy against indicting a sitting President, any President, should continue unchanged.

These all are complex matters which are not easy to pursue under the best of circumstances. Given the frayed raw nerves of our body politic and the approach of the 2020 election the degree of difficulty increases. It will be a time when every American should be paying attention, informing themselves and reflecting upon facts, communicating with their elected leaders, and ultimately voting. To paraphrase another film icon, Bette Davis: buckle your seat belts, it’s going to be a bumpy ride.

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