Both today and in his report, Mueller described a vast Russian conspiracy to defeat Hillary Clinton that often intertwined with advisors to President Trump. Today, he spent most of his time telling America that it had a criminal president, but that he could—and would—do nothing about it.
Let’s take a hard look at the sentence everyone’s quoting now.
“If we had confidence that the president clearly did not commit a crime, we would have said so.”
Mueller is saying three things without ambiguity:
- Investigating the president for crimes of conspiracy and obstruction was merited at the outset. They devoted two years to the investigation of Trump’s possible crimes (among those of others, whom they charged).
- If his office could be reasonably confident that the president committed no crimes, that would have been what they reported. Since they did not, they were not confident the president committed no crimes. So they did not clear the president of criminal actions.
- If his office was not confident that the president committed no crimes, they would have to look at the Department of Justice’s policies to act further. They were at that point, so now they needed guidance.
Here’s what he said about how they got it.
“We did not, however, make a determination as to whether the president did commit a crime. The introduction to the volume two of our report explains that decision. It explains that under long-standing Department policy, a president cannot be charged with a federal crime while he is in office. That is unconstitutional. Even if the charge is kept under seal and hidden from public view, that too is prohibited. The special counsel’s office is part of the Department of Justice and by regulation it was bound by that Department policy. Charging the president with a crime was, therefore, not an option we could consider.”
From the get-go, Mueller’s team knew it would be bound by the Office of Legal Counsel’s long-debated 1973 memo that sitting presidents cannot be indicted. Now, I don’t think it says that, but President Clinton’s DoJ memo from 2000 takes that position as gospel, so Hillary Clinton is not getting justice because of her husband’s Department of Justice. Super-great.
Anyway, Mueller’s team was playing by the rules of the game. Game theory exists in an environment of rules. Now, if you play sports or board games, you think of rules as documented script, something you can just look at and determine conclusions from. That’s really not how the world works. Rules are usually a lot more like that 1973 memo: collections of rambling theories about what it is permissible and what isn’t. That is the basis of how the Supreme Court works, for example. When they evaluate laws (which are a type of rule more like a sport or game manual), they look to precedent to determine what to do. Disentangling 200+ years of legal opinions into the case the individual justice wants to make, or feels they are forced to make, is the hard work of the court. Rules are precedents, and precedents are spongy.
Rules based on precedent rather than statute command two types of responses. The first, often called constructionism, says that if you can’t find a way around what precedent tells you, you follow precedent. The second, often called activism, says that precedent can guide you toward conclusion but you need to balance it against what you feel the society needs. Today, Bobby Three Sticks pounded nails into the idea that he’d ever be an activist.
Mueller believed that his office was bound by that precedential pair of memos, and no one else has to believe that for it to matter. The next president could appoint a different set of DoJ officials, who could write a different memo about it, and that would govern the next special counsel investigation. But no matter how many memos were issued, it wouldn’t change whether the president had committed a crime.
“And beyond Department policy we were guided by principles of fairness. It would be unfair to potentially accuse somebody of a crime when there can be no court resolution of the actual charge.”
Mueller caps this off by saying that he didn’t reach a conclusion on whether to indict the president because he couldn’t take the president to court. In the absence of the ability to do so, tarring the president with a conclusion of guilt would merely hamper his ability to function without any sort of resolution. And when it’s put that way, it’s hard not to empathize with Mueller’s team. They would have been blasted for issuing a statement that could not be backed with prosecution by their own office. So they didn’t.
But he left a door open, one the president certain doesn’t wish him to.
“The opinion says that the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.”
Oh right, it’s important to know who this press conference was for. Mueller was reminding Congress of its duty to pursue impeachment based on the 448 pages his team issued, detailing a systematic pattern of obstruction that even the most loyal Trumpist has to shout la-la-la-la with their fingers in their ears to avoid comprehending. In chronological order:
- Asking FBI director James Comey to clear National Security Advisor Michael Flynn.
- Attempting to force Attorney General Jeff Sessions to “unrecuse” himself.
- Firing Comey.
- Attempting to fire Mueller.
- Attempting to get Sessions to denounce the Mueller investigation.
- Attempting to bury emails about Donald Trump Jr. and Jared Kushner’s meeting with Russians in Trump Tower.
- Attempting to get Sessions to take control of the investigation.
- Telling White House Counsel Don McGahn to deny that he wanted the Special Counsel removed.
- Asking Flynn for early warning on information damaging to the president and commending campaign director Paul Manafort for not flipping.
- Threatening personal attorney Michael Cohen.
These are crimes. They’re not kinda-sorta-maybe crimes. They’re just crimes.
What Mueller was saying today was that the Department of Justice cannot be trusted to investigate and indict a president under the current set of spongy and debatable rules defined by the agents of presidents. He dramatically spelled out Congress’s responsibilities in this regard and then told Congress he didn’t want to be a part of it.
“There has been discussion about an appearance before Congress. Any testimony from this office would not go beyond our report. It contains our findings and analysis and the reasons for the decisions we made. We chose those words carefully and the work speaks for itself. And the report is my testimony. I would not provide information beyond that which is already public in any appearance before Congress.”
Mueller has defined the Mueller Report as testimony against the president. The split Congress, in this case, might choose to heed that in the House and not bother with it in the Senate. So be it, Mueller implied. I have defined for you a pattern of criminal activity and was bound not to define it as such, so I have not done so. It’s your turn now.
Among the Congressional candidates for president, the response was swift.
One Republican—just one, but you have to start somewhere—was on board. A couple nights ago, before Mueller gave his statement, GOP Rep. Justin Amash of Michigan laid out on Twitter the case for Trump’s impeachment. That’s one vote for, which might counter Nancy Pelosi’s one vote against. While no other Republicans leapt to Amash’s defense, it’s not too farfetched that the tide will turn enough that Republican Senators need to be worried about the consequences of voting against conviction, should it come to them.
Rules may be spongy, but they define peoples’ actions nonetheless. Robert Mueller is not going to change the rules for us. The Congress could define the rules for special counsels better. They could do it this term if they wanted. Regardless, we have what we have. If you want Trump impeached, you might get that. If you want Trump convicted, you may need to wait till 2021 at least. By then he’ll be out of office (and thus indictable) or he’ll face a new Congress (which might be more inclined to remove him).
Regardless, the Mueller Report stands as a roadmap to impeachment. It is a work by a man who has done his job, and wants to go away now. I expect, however, that we will hear from him again, whether before Congress or in some other setting. As Pearl Jam taught us, once the kid who never speaks in class decides to speak, no one will rest until they know why.
This is the thirty-seventh installment of a series on politics and game theory. It has covered impeachment of Trump, Russian collusion, white supremacy, abortion, guns, nuclear war, debt, the NFL, sexual harassment, the Mueller probe, taxes, Trump’s first year, the Clinton Foundation, immigration, parades, the Democrats, hope, family separation, trade wars, Trump’s endgame, the New York Times op-ed, Justice Kavanaugh, Speaker Pelosi, lame ducks, the GOP legacy, the stock market, the Democratic field, shutdowns, third party candidates, the Virginia scandals, in-party impeachment, Trump’s mafia code, college admissions, William Barr, Brexit, and Iran. The first 21 of these essays are in my book Game Theory in the Age of Chaos, which you can preorder by clicking the link.