Don’t Expect the Mueller Probe To Do What Isn’t Its Job

January 19, 2019 11:04 a.m.

The Buzzfeed brouhaha and the Mueller denial recall a basic point. Our most critical national and civic need is to find out the truth of what happened in the 2016 election and who President Trump really works for today. That imperative is far more important than whether any individual person or group of individuals is incarcerated or otherwise punished for crimes. But that is not the purpose of the Mueller probe. It never has been. The Special Counsel investigation is a criminal and counter-intelligence investigation. Its goal is to find out whether crimes were committed and to prosecute them.

These are related but very different things. It is quite possible that the most critical facts about what happened in the 2016 election and afterwards are not tied to statute crimes. Indeed, it’s likely that if they lead to prosecution it will be for adjacent criminal actions – lying to prosecutors, general conspiracies, etc. – more than the substantive bad acts themselves.

One value of the very flawed Independent Counsel statute was that it required the Independent Counsel to issue a final report on its findings. Mueller has no such requirement. Indeed, what many expect and hope for from a hypothetical Mueller Report is not only not required but in some ways in tension with the report he is required to produce.

As we’ve seen, a probe like Mueller’s can have a significant fact-finding component. Certainly Mueller must see that, in practice, as some part of his brief. But that’s not the point of his investigation and in specific and binding ways it’s in conflict with his mandate. This role, what I’ve described as our most central national need, falls either to Congress or to an independent commission Congress could create.

It’s not an either/or of course. We need both. We can have both, now that one house of Congress is controlled by a party not committed to covering up for the President. But it is critically important that we understand what the purpose and the mandate of the Special Counsel probe really is and that our most pressing national need is for something it cannot actually provide.

Even if it’s findings are now in dispute, the Buzzfeed story from Thursday evening has nonetheless brought a growing number of national security and legal luminaries to say it is time for Congress to begin hearings over impeachment if not impeachment itself. As Michael Hayden and Neal Katyal wrote last night in the Post: “There is a big difference between calling for impeachment and calling for an investigation into whether impeachment is appropriate.”

As I’ve written elsewhere, I think impeachment is premature for very specific and practical reasons. Impeachment is nothing more than inviting the Senate to remove the President from office. Given that about 20 Republican senators would have to vote to do that, one might as well invite the senate to send Trump to the moon. So the real issue in my mind is that we need fact-finding that will hopefully over time shift opinion so that removal from office becomes likely.

But are these hearings into the possibility of impeachment or just an investigation of the Russia scandal? This strikes me as really a semantic distinction it’s not worth getting hung up about. Only Congress can get to and air the facts. So get about finding and airing them. They will tell their own story and lead to new possibilities.

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