Lawmakers should not turn the Mueller testimony into a circus
Mueller report proves key Trump advisers saved him from himself
Not since the movie "Inception" has there been such disagreement over what people have just watched together. Call it "Perception." At roughly 400 pages long, the report of special counsel Robert Mueller was eagerly devoured by millions after its release. That common interest, however, masked the fact that very few minds will be changed by its content.
The report had something for everyone to reaffirm divergent views of Donald Trump, from presumed felon to putative victim. However, what is fascinating is the sharp disconnect that emerges between his rhetoric and his conduct. Trump had spent the last two years regularly repeating a maddening mantra: witch hunt, witch hunt, witch hunt. His tweets and comments represented much of what the special counsel investigated.
Trump came close to achieving the impossible feat of obstructing the investigation into a crime that did not, in fact, occur. In the end, Mueller punted the issue by saying that whether these comments constitute a crime must turn on intent, which could not be ascertained, particularly given the refusal by Trump to be interviewed by the special counsel staff. It is notable that the special counsel repeatedly described the motivation in noncriminal terms. Trump firing Comey was clearly in response to his frustration with Comey refusing to state publicly what he was saying privately, which is that Trump was not a target. Indeed, Mueller found that Trump agreed that the Russian interference with the investigation, including any cooperating individuals, had to be fully investigated.
On some level, the indeterminacy of the conclusion on obstruction was the penalty for Trump refusing to answer questions. However, the report establishes that there really was no serious basis for a criminal charge of obstruction. Indeed, there is something peevish in not reaching an obvious conclusion. The report has precious little on obstruction that was not already known. The greatest damage that Trump did to himself was done in full view. But once his rhetoric is stripped away, his conduct was not criminal, though it was at some point contemptible.
There seems little question that Trump wanted the investigation to end and wanted to fire key players in the investigation, according to the report. But he did not fire anyone involved in the investigation. He did not destroy any evidence. He did not end the investigation prematurely. He took no actual obstructive acts. To charge him would have amounted to a virtual thought crime. The investigation did find "substantial evidence" that Trump wanted to limit the investigation by some of his actions. However, it also found that he did not do so. Trump had obstructive desires and even wanted to obstruct, but he did not actually obstruct.
What emerges from more than 400 pages and 10 investigative "episodes" is a Trump who was protected from himself by key advisers. It began with the single greatest blunder in modern presidential history, which is the firing of FBI Director James Comey. There were ample reasons to fire Comey, who was denounced by career prosecutors and both Democratic and Republican leaders for his violation of core prosecutorial policies.
Trump could have fired Comey at the start of his administration or at the end of the Russia investigation. He just could not do it in the middle of the investigation. That is what the White House staffers uniformly told him, with one exception, which was Jared Kushner. That was enough. Trump fired Comey and set his administration on fire. An investigation that was winding down metastasized into a spiraling inquiry with global reach.
After the Comey debacle, staffers quickly recognized that Trump was counterpunching himself into serious criminal jeopardy. That led to the most significant moment described in the report. Trump decided to take a step that would have made the moronic firing of Comey look brilliant in comparison. He ordered the firing of Mueller. At that point, staffers including White House counsel Don McGahn turned themselves into a virtual human shield to protect Trump from himself. McGahn refused to carry out the order and threatened to resign. It was an extraordinary moment. In refusing repeated orders of a sitting president, McGahn actually said that he was coming to the White House to pack his things. Instead, the president kept McGahn on and Mueller was never fired.
Had Trump gotten his wish, he well could have tripped the wire for obstruction or impeachment. He came that close. However, he did not cross the line. That is why this movie is so confusing to so many. The "Death Star" did not explode. The "Titanic" did not sink. The president did not obstruct justice. Despite his best efforts, Trump stayed just north of the criminal code. Of course, avoiding the indictable or the impeachable does not mean that some conduct was not contemptible as president.
Trump is worthy of condemnation for his conduct in seeking to end the investigation. It is clear from the report that Trump was, to some degree, saved from himself by staffers. It is an extraordinary moment for staffers to refuse a direct order from the president. Trump also instantly reminded voters how much of this was inflicted upon himself by tweeting a "Game of Thrones" image with the words "game over." The problem is that the special counsel report makes him look a lot like Mad King Targaryen.
However, there is one aspect here that is commendable and worthy of praise. Ultimately, Trump not only ordered senior staff to cooperate with Mueller, but he did not withhold evidence. Most important, he waived executive privilege over the entirety of the report in an unprecedented degree of transparency. So where does that leave us? It leaves us with one of the most enigmatic figures in American history. Donald Trump is neither a felon nor is he blameless. Like much else in our politics, the rest is likely to be more rage than reason, as people reach their own conclusions.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.