Mueller's Ignominious Finale

By Victoria Toensing & Joseph diGenova
July 26, 2019
TheHill.com

We were promised that Robert Mueller’s testimony would put life into his report, the movie version of the special counsel’s investigation. Instead, we got a cadaverous presentation from a once vigorous Marine and prosecutor. 

During nearly seven hours of testimony before two House committees on Wednesday, Mueller asked for a question to be repeated more than 30 times. He replied more than 200 times that he did not know or the matter was “not within my purview.” He could not remember which president appointed him as a U.S. attorney. When he did respond, Mueller’s answers were laced with “I am not certain,” “I don’t know that for sure” and “I can’t say that for sure.”

In the afternoon House Intelligence Committee hearing, Mueller had to walk back his morning House Judiciary Committee emphatic response of “That is correct” to Rep. Ted Lieu’s (D-Calif.) question: “The reason, again, that you did not indict Donald Trump is because of an OLC (Office of Legal Counsel) opinion that you cannot indict a sitting president, correct?” The question and answer are key to the Democrats’ argument that President Trump obstructed justice but was not charged only because the OLC opinion prevented it. Mueller’s retraction comported with the characterization that Attorney General William Barr repeatedly has reported about what Mueller told him: There was no one reason because the “determination” was never “reach[ed].” 

Despite his infirmities, Mueller managed to make false statements. For example, when Rep. Louie Gohmert (R-Texas) inquired whether it was accurate that he and former FBI Director James Comey had been “good friends … for many years,” Mueller first responded “No,” they were merely “business associates.” Only after being pressed by Gohmert did Mueller admit they were “friends.” Such friendship is at least an appearance of, if not in fact, a conflict to an investigation that was initiated because of Comey’s firing. Yet, Mueller claimed no conflict.

Mueller went into repeated detail about the balancing act he had to manage when deciding whether to subpoena President Trump for his testimony. It was a time issue, he claimed, as there would be litigation resulting in significant delay; he had to consider whether any information the president would provide was worth the wait.

No: The special counsel would have lost in court. The legal standard for obtaining executive-privilege evidence — which is what a president’s testimony would be — is that there be a criminal case and the sought evidence is material to the issues in that case. There was no crime, so the legal threshold could not be met.

Mueller claimed not to be “familiar with” Fusion GPS, the opposition-research firm hired by the Democratic National Committee to compile the Russian dossier, which falsely framed Trump campaign adviser Carter Page, among others. When questioned further by Rep. Steve Chabot (R-Ohio) about Glenn Simpson, an owner of Fusion GPS, he replied, “That’s outside my purview.”

Let’s see: It was within his “purview” to investigate and devote an entire section of his report to a June 2016 meeting in Trump Tower with Trump campaign chairman Paul Manafort, Trump son-in-law Jared Kushner, Donald Trump Jr. and a Russian lawyer who promised “dirt” on Hillary Clinton but did not deliver it during the meeting. Nothing approaching criminal conduct there.

But, according to Mueller, it was not within his purview to investigate the fact that Simpson had admitted meeting with the same Russian lawyer the night before the Trump Tower meeting and the day after. Do you think those meetings could have involved a set-up for the Trump campaign? Mueller apparently did not want to know.

Mueller became animated only when his staff was attacked as partisan hacks. Yet, he failed to fulfill the primary conflict-check that every law firm performs prior to taking on a client matter. When hiring special counsel staff, Mueller knew that the main target of the investigation was the Trump campaign. Why didn’t he vet any of the lawyers for a conflict with the political nature of the investigation? He claimed not to know that Jeannie Rhee had represented not only the Clinton Foundation but also Hillary Clinton personally before she joined his team. Rhee had been Mueller’s law partner at WilmerHale. How could he not know?

Aaron Zebley, another former partner whom Mueller hired, had represented Justin Cooper, the guy who destroyed two of Clinton’s BlackBerrys with a hammer. 

Andrew Weissmann, whom Mueller appointed as his chief deputy, attended Clinton’s election “victory” party and emailed then-Acting Attorney General Sally Yates that he was in “awe” of her for refusing to obey President Trump’s travel ban. Those facts did not faze Mueller’s decision to hire Weissmann. Nor did it bother Mueller that Weissmann had lost 9-0 in the Supreme Court, where he was criticized for making up a crime in the Arthur Andersen/Enron case. 

One last issue needs to be discussed: Joseph Mifsud. The Mueller Report describes him as “a London-based professor who had connections to Russia and traveled to Moscow in April 2016.” It falsely claims that Trump “campaign foreign policy adviser George Papadopoulos made early contact” with Mifsud when, in fact, Papadopoulos repeatedly has said he was urged by people in London — including a U.S. government employee — to meet with Mifsud. Although the report wants to characterize Mifsud with Russian ties, we now know he falsely told Papadopoulos that a young woman with him was Putin’s niece. 

Mueller and company claim the Russian collusion investigation began only after Mifsud told Papadopoulos in April 2016 that the Russians had “dirt” on Clinton and Papadopoulos repeated such information to an Australian diplomat, who in turn reported it to the U.S. government. The regular process would have been for the FBI to knock on Papadopoulos’s door immediately and interview him about the source of the information. Instead, the FBI immediately began investigating him for repeating a rumor. Not until January 2017 did the FBI question Papadopoulos about Mifsud.

We now know that, according to the Mueller Report, Mifsud lied three times to the FBI during a February 2017 interview. Unlike Trump advisers Gen. Michael Flynn, Manafort, Robert Gates and Roger Stone, Mifsud was not charged by Mueller. Moreover, although the report discusses in depth the Mifsud/Papadopoulos issue, Mueller refused to discuss it during the hearing, claiming he does not “get into charging decisions.” 

Papadopoulos’s lawyer, Stephan Roh, has told reporters that Mifsud is a “Western” intelligence asset. Could it be that Mifsud was contracted to set up Papadopoulos, and Mueller discovered the set-up so did not charge Mifsud? If so, Mueller’s testimony about the issue is fraught with cover-up and perjury.

Former independent counsel Ken Starr described his reaction to Mueller’s testimony as “shocked and stunned.” But Fox Business host Lou Dobbs said it best: “I knew Mueller had not written the report. I did not know he had not read it.”

Victoria Toensing is a former deputy assistant attorney general in the Department of Justice and former chief counsel to the Senate Select Committee on Intelligence. Joseph diGenova is a former U.S. attorney for the District of Columbia and a former independent counsel for the Justice Department. They are married and founding partners in the Washington law firm of diGenova & Toensing.