UPDATE: After Mueller’s morning testimony and after this story was posted, he corrected his statements described below. He said of Rep Lieu’s question: “That is not the correct way to say it. As we say in the report and as I said at the opening, we did not reach a determination as to whether the president committed a crime.”
As expected, former Special Counsel Robert Mueller’s testimony was relatively restrained and low key. Clearly, he was trying not to break any news. But at one point during questioning with Rep. Ted Lieu (D-CA), Mueller appeared to drop a major bombshell.
In his report, Mueller laid out extensive evidence that President Donald Trump obstructed justice. But because the Department of Justice’s Office of Legal Counsel has determined that a sitting president cannot be indicted, Mueller said that his office didn’t make a prosecutorial judgment about whether to bring such a charge and that he would, in principle, refuse to say that he would have brought such charges under other circumstances.
But on Wednesday, Lieu asked Mueller point-blank: “The reason, again, that you did not indict Donald Trump is because of the OLC opinion stating that you cannot indict a sitting president, correct?”
This phrasing directly entails that, were it not for the OLC opinion, Mueller would have indicted Trump — something he has steadfastly refused to acknowledge.
And yet Mueller answered without hesitation: “That is correct.”
If true, this is a huge admission. Some observers suggested that, since Mueller must have been highly prepared for the testimony, Mueller must have meant exactly what he said.
But the idea that Mueller would drop a bombshell like this seemed to contradict much of the rest of his testimony. The former special counsel was often quite reserved during his testimony, simply affirming Democrats correctly read his report and refusing to elaborate on it at all. If he intended to reveal this detail, he could have put it in his opening statement.
So why would Mueller say this? It seems possible that he may have misheard the question or simply become confused. Multiple times in the hearing, Mueller asked for lawmakers to repeat their questions, seeming to indicate that he was having trouble hearing. It’s possible that Mueller thought Lieu was asking more broadly about the fact that, given the OLC memo, he determined from the outset not to reach a prosecutorial decision regarding the president — rather than deciding that the OLC memo was “the reason” Trump wasn’t indicted.
Rep. Debbie Lesko (R-AZ) later seemed to not consider the fact that Mueller’s admission might have been a mistake, and instead of offering him a chance to clarify, she accused him of contradicting himself. He disagreed with her characterization but never addressed his initial response to Lieu’s question.
Regardless of whether my interpretation is correct, though, the exchange with Lieu is still important. In his controversial letter summarizing Mueller’s report, Attorney General Bill Barr said he and then-Deputy Attorney General Rod Rosenstein concluded Trump didn’t commit a crime, saying that the “determination was made without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.” However, since Mueller’s final decisions were clearly based around the OLC position, Congress’s role in assessing the president’s conduct becomes necessary.
Watch the clip below:
Rep. Ted Lieu (D-CA): The reason, again, that you did not indict Donald Trump is because of OLC opinion stating that you cannot indict a sitting president, correct?
Robert Mueller: That is correct.
— CSPAN (@cspan) July 24, 2019