Many people were unhappy to hear that Special Counsel Robert Mueller does not want to testify about his report before Congress. But, in his remarks Wednesday, Mueller indicated that Congress has the constitutional authority to do something far more significant: Review all the evidence, and question all of the witnesses, discussed in the Mueller Report.
Since Mueller released his report, Donald Trump and Attorney General William Barr have been assiduously attempting to deny Congress access to Mueller’s underlying evidence, and even the redacted portions of his report. Accordingly, as Mueller noted, Congress’ ability to “access [Mueller’s] underlying work product is being decided in a process that does not involve our office,” that is, in the federal courts. While Mueller didn’t expressly take a position on the matter, the plain logic of his statement is that Congress should prevail.
As Mueller stated, “under longstanding [Department of Justice] department policy, a president cannot be charged with a federal crime while he is in office. That is unconstitutional.” But as Mueller also noted, that policy, which is set forth in formal opinions, also recognizes “that the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.” As the most recent DOJ opinion explains, that process is impeachment, which, as Mueller recognized is the sole forum for adjudicating presidential culpability while Trump remains in office.
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Indeed, the existence of Congress’s constitutional power to impeach and remove a president is a central pillar of the DOJ’s rationale for concluding that presidents can’t be indicted while in office. That is, a president’s temporary immunity from prosecution does not make them unanswerable for wrongdoing, because Congress retains the power to bring a criminal president to heel.
In that regard, contrary to Trump’s assertions, Congress is not seeking to engage in a “do over” of the Mueller investigation. As Mueller reiterated, because he was barred from indicting the president, Mueller assiduously avoided reaching any ultimate judgment regarding whether the president committed a criminal offense, and he certainly did not evaluate whether Trump engaged in “high crimes or misdemeanors” that might merit his impeachment. Only Congress can do that. Yet, without access to the underlying evidence, Congress cannot perform its constitutionally assigned responsibility to adjudge the president.
Despite two resounding judicial rejections of his stonewalling strategy so far, Trump apparently continues to believe that “Trump judges” will take his side. On Thursday, Trump said that he “can’t imagine the courts allowing” him to be impeached. But his confidence may not be well founded.
The U.S. Court of Appeals for the District of Columbia recently stated (in an opinion joined by a Trump appointee to the bench) that when it considers the impeachment of a president, Congress acts in a judicial, and not a purely, legislative role; thus, the House serves much like a grand jury, by reviewing the evidence and determining whether to bring charges in the form of articles of impeachment, while the Senate serves much like a petite jury, hearing evidence presented by the House, and deciding whether to convict the president and remove him from office.
A judicial proceeding in which the critical evidence is unavailable to the prosecutors in their investigation, or to the jury at trial would be nothing short of a sham. For that reason, the same federal appeals court decided in 1974 that the House had the right to review evidence presented by prosecutors to the grand jury in the Watergate investigation in connection with its review of potential grounds for impeaching President Nixon. Decades later, the same court likewise permitted Congress to review grand jury evidence that Kenneth Starr proffered in putative support of impeaching President Clinton and indeed did so before Congress itself had taken any steps to commence impeachment proceedings.
Plainly, the same must be true as to the evidence that Mueller and his team obtained in their investigation. Indeed, as I have previously observed, if Trump’s claim that he has a right to keep Mueller’s evidence from Congress, the sole body currently charged with determining if he engaged in wrongdoing, then Trump would be wholly immune from accountability: he can’t be charged or impeached.
As Mueller recognized, his job was complete with the delivery of his report, which offers a comprehensive road map of the evidence regarding Russian interference in the 2016 election, as well as Trump’s efforts to disrupt the investigation of that serious wrongdoing. Now, as Mueller indicated, it is Congress’ job to review that evidence, and determine if the president abused his powers.
