American presidency: As Special Counsel, Robert Mueller more than fulfilled DoJ mission

Michael Goldhaber, IBA US Correspondent

The Special Counsel affirmed that, as President, Trump used ‘undue influence’ to subvert his investigation on many occasions. When prodded, Mueller explained that he did not ‘exculpate’ President Trump, that Justice Department guidelines barred him from prosecuting a sitting President and that the President may yet be charged, after he steps down, with obstructing justice.

Most dramatically, Mueller agreed with the moderate Republican congressman Will Hurd (who has since announced his retirement) that Russian electoral interference is growing in frequency and intensity. ‘It wasn’t a single attempt,’ Mueller testified. ‘They’re doing it as we sit here. And they expect to do it in the next campaign.’

In their final exchange, Mueller agreed with House Intelligence Committee Chair Adam Schiff that receiving electoral assistance from a foreign power was ‘wrong,’ ‘unethical’ and ‘unpatriotic,’ because it ‘undermines our democracy and institutions.’ Schiff said: ‘We cannot control what the Russians do, not completely. But we can decide what we do, and that this centuries-old experiment we call American democracy is worth cherishing.’

The next day, two events underscored the urgency of these warnings. First, the Senate Intelligence Committee reported that Russia, in 2016, had conducted reconnaissance on the voting systems in all 50 states, to identify their vulnerabilities in 2020. Second, the Republican Senate Majority Leader Mitch McConnell blocked the bipartisan Securing America’s Federal Elections (SAFE) Act from reaching the Senate floor. In so doing, he singlehandedly blocked Congress from requiring all federal elections to use paper ballots, and from authorizing $600m in additional funding to protect against future Russian hacking.

The most cynical theory is that Senator McConnell welcomes Russian interference in 2020 because it might help to reelect Trump. The only-slightly-less-cynical theory is that he wishes to shield the sort of local voting irregularities that Democrats allege elected Georgia’s Republican governor last year. In fact, voting integrity advocates have filed a lawsuit demanding that Georgia adopt the same sort of paper ballot system that would have been required nationally by the SAFE Act. Michael Li, who serves as senior counsel at the Brennan Center's Democracy Program, finds it hard to believe any explanation for McConnell’s conduct except that he subscribes to ‘existential politics, where only winning matters.’

The risks of 2020 rose higher the next weekend, when the administration’s leading voice of independent common sense on electoral security, Director of National Intelligence Dan Coats, announced his resignation. The President wished to replace Coats with Texas Rep. John Ratcliffe, who is known only for parroting the President’s attacks on Mueller. Perhaps proving that patriotism still lives, the Republican Senate Intelligence Committee Chair Richard Burr quickly quashed the idea of installing an under-qualified loyalist as America’s first line of defense to electoral integrity in 2020.

Ratcliffe’s big moment at the Mueller hearing was to argue that an investigation resulting in no presidential prosecution is pointless. The passage of time makes this argument look ever more facile.

Ratcliffe forgets that the Special Counsel obtained 37 convictions or guilty pleas -- and set several other cases in motion. In one offshoot case, Obama White House Counsel Greg Craig went on trial on August 12 on the charge that he lied about lobbying for the Ukraine while he was a partner at Skadden, Arps, Slate, Meager & Flom. In another offshoot case, Roger Stone, a Trump adviser who allegedly served as a conduit to Wikileaks, will be tried in November for perjury, obstruction and witness tampering.

And though Mueller isn’t prosecuting a sitting President, he did reveal presidential conduct that was arguably unethical, impeachable, or prosecutable down the road – and he may have opened the door to more such revelations. The Mueller-referred investigation of Trump fixer Michael Cohen gave the House Ways and Means Committee grounds to subpoena years of records from the President’s accountants and bankers at Mazars, Deutsche Bank and Capital One. Two trial judges swiftly deemed the President’s effort to block these disclosures frivolous. The DC and Second Circuits hear the appeals this summer. If they agree, then the public may at last get to see the President’s tax returns.

Even the Mueller investigation itself may not be done revealing its secrets. To smoke them out, the House Judiciary Committee filed a pair of lawsuits in the fortnight after Mueller testified. One would obtain access to the grand jury materials underpinning the Mueller report. The other would compel testimony in Congress from the report’s star witness, former Trump White House Counsel Don McGahn.

When the Justice Department first appointed the Special Counsel, it asked him to investigate ‘Russian government efforts to influence the 2016 presidential election and related matters.’ Culpability of any one President is secondary to electoral integrity and the democracy that we cherish. Whatever the President’s fate, Mueller has more than fulfilled his mission by proving electoral interference in 2016, and sounding the alarm for 2020. In the meantime, the President and the Senate Majority Leader appear to be sticking their fingers in their ears.