Mueller passed the impeachment baton to Congress. They could still drop it.

The former special counsel could not have been more explicit that it's up to Congress to do what it will with his report on the president.
Image: Special Counsel Robert Mueller Makes A Statement On Russia Investigation
Displayed on a television screen in Times Square, Special Counsel Robert Mueller makes a statement about the Russia investigation, May 29, 2019 in New York City.Drew Angerer / Getty Images
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By Michael Conway, Former counsel, U.S. House Judiciary Committee

Robert Mueller’s work is done. Now it's up to Congress to shoulder the responsibility conferred on it by the Constitution to institute an impeachment proceeding. Or it can shirk that responsibility.

In an extraordinary public statement Wednesday, the day he resigned as special counsel, Mueller essentially delivered two blunt messages to Congress. First, he identified that his 448-page redacted report contained all the information Congress needed to vote on whether to authorize an impeachment inquiry. Second, he noted that if President Trump had engaged in wrongdoing, only Congress can redress the misconduct.

Mueller further exposed the falsity of Attorney General William Barr’s public statement at an April 18 press conference, and then again before Congress, that Mueller had not relied upon a Justice Department policy that a sitting president cannot be indicted. Barr, in fact, told the Senate that Mueller "emphatically was not saying that, but for the [Office of Legal Counsel] opinion, he would have found obstruction.”

Mueller said the opposite Wednesday: “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.” Mueller, though, marshaled evidence of 10 possible instances of obstruction of justice in the report.

Mueller also rebuked Barr’s personal conclusion that Trump had not obstructed justice, reporting that he was empowered as special counsel to decide if Trump was innocent: “If we had confidence that the president clearly did not commit a crime, we would have said that.” But, he emphasized Wednesday, his report said that the investigation "does not exonerate" Trump, contrary to Barr's statements.

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Without uttering the word “impeachment,” then, Mueller tossed the ball to Congress. Referring to the departmental policy against prosecuting a sitting president, Mueller said that “the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.” That process is the sole power of impeachment vested in Congress in Article I, section 2 of the Constitution.

Mueller, in fact, made that point in the first page of his obstruction of justice report, explaining that a criminal prosecution of a sitting president would “potentially pre-empt constitutional processes for addressing presidential misconduct.” A footnote to that sentence refers explicitly to Article 1, section 2 of the Constitution.

For weeks since the report’s release, many House Democrats have parried demands to institute a formal impeachment inquiry with a litany of actions to be pursued first, a to-do list that is long and ever-expanding. Democrats have urged the House Judiciary Committee to subpoena Mueller and to enforce existing subpoenas issued to former White House Counsel Don McGahn and Trump aide Hope Hicks to testify publicly. In addition, House members have demanded the unredacted Mueller report and all of its underlying witness interviews and evidence.

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The White House, perhaps unsurprisingly, has stonewalled these demands, relying on a bogus claim of executive privilege to justify their refusal. The attorney general also has resisted cooperating with Congress to seek the release of grand jury materials from the federal court.

This approach by House Democrats in the face of an intransigent White House risks an interminable delay — a delay that supports the apparent White House strategy to run out the clock until the 2020 elections.

Mueller made plain, in resisting the entreaties that he testify to Congress, that the report makes clear all of his findings, both about Russian interference in the 2016 election and the efforts to obstruct his investigation. “The report is my testimony,” he said. Mueller added that any eventual congressional testimony on his part would be confined to the information in the special counsel report: “We chose those words carefully, and the work speaks for itself.”

Thus, it is likely that any effort by the Democrats to force Mueller to testify would be a debacle. It would be disastrous for impeachment proponents (who are reliant on his investigation and report to make their case) if Mueller, true to his word, appeared to be evasive in congressional testimony because he refused to expand on the information contained in the written report.

Still, it’s true that Mueller provided too much information for the ordinary citizen to digest and make an informed decision, given that most cannot devote the time and attention to read the entire special counsel’s report. Their understanding of whether impeachment proceedings should be undertaken will then be based on snippets of articles and sound bites from television commentators. Realizing that his key findings had been mischaracterized by the attorney general and largely overlooked by the public, Mueller decided to create his own sound bites with his televised remarks.

Only a nagging worry that the public did not understand the investigation’s central conclusions could prompt such a famously reticent prosecutor to create a must-see television moment.

Mueller’s final words on Russian interference underscored that concern: “I will close by reiterating the central allegation of our indictments: That there were multiple, systematic efforts to interfere in our election. That allegation deserves the attention of every American.”

Mueller has explicitly tried to pass the baton to Congress. History will judge whether the Congress takes that baton or drops it on the ground.