The Mueller hearings have come and gone, leaving us predictably no closer to a resolution of our constitutional crisis and shorn of any remaining illusion that it is likely to be meaningfully addressed in what little time remains before we are plunged into the maelstrom of the 2020 elections. The tragedy of the hearings was twofold. The lesser aspect was the spectacle of an honored public servant forced to expose himself in public as a man beset by age, and by the very fact of that to subject the final and most important work product of his career to skepticism.
The Robert Mueller who appeared for nearly six hours before the House Judiciary and Intelligence committees was a man often halting in speech and demeanor, bearing scant resemblance to the one whose acuity was fabled in Washington. But Mueller had other reasons for saying as little as possible. His inquisitors, both Democratic and Republican, each wanted something from him that he felt he should not give them. Democrats wanted a personal indictment of Donald Trump that would imply if not openly declare the necessity for Congressional action against him. Republicans sought to undermine the credibility of the Report he had been tasked with delivering to the Justice Department, which has yet to be seen in its fully unredacted form by anyone outside the Department and whose underlying evidence remains locked in its files. No one facing him was a friend. He had made clear his aversion to testifying, and appeared only under subpoena. He knew he was not in as full command of the Report’s details as he might once have been, and that questioning would reveal this. Most importantly, however, he was determined not to serve any interest other than that what he believed to be the public one as a whole, and that, as he tirelessly reiterated, had been served as far as it could be by the Report itself.
He did, in short, what he thought was right both for the country and for himself. And it was right. Protecting the integrity of the Report and those who had compiled it was an essential duty. Refusing to give himself to those who wanted the Dutch courage to follow the Report where it clearly led was also a duty. What we saw on display was thus not a purposive exhibition of forgetfulness or evasion; it was an act of patriotism. The larger tragedy of the hearings, and of the dereliction it entailed, was in the fact of having forced them on Mueller at all. The persons called to testify publicly should have been those directly implicated in the findings of his Report: Donald Trump, Jr.; former Attorney General Jeff Sessions; former White House Counsel Don McGahn; and so forth. None of them have appeared. The only public testimony before major House committees has been that of Trump’s disgraced lawyer, Michael Cohen, and now of Mueller himself.
The reason why the principals in the Report have not testified is because Trump, in defiance of Congressional subpoenas, has ordered them not to. This itself would be an impeachable offense on his part, if formal impeachment proceedings were underway. Constitution tasks Congress with the oversight of the other branches of government, and empowers it to compel testimony to that end. The impeachment power itself grows out of this. To defy subpoenas is to upend the most critical power vested in the Constitution to remedy judicial overreach and executive tyranny, and thus to protect the Constitution itself. There could be no more serious challenge to our system of government, and to the rule of law it defines. For the House of Representatives to submit to a defiance of subpoenas, not merely in a particular case but as a blanket rejection of its authority, is as extreme a dereliction of its own duty as could well be imagined. The response of the House has been to appeal Trump’s defiance of its subpoenas by holding some officials in contempt, and to appeal their rejection to the courts. The contempt citations have been met with contempt, and the court appeals are simply wrong. It isn’t for a federal judge to decide which powers Congress may exercise, but for Congress itself.
Moreover, as is increasingly apparent, the decades-long campaign to stack the federal bench with justices favorable to the most expansive view of executive authority has borne fruit, particularly in the Supreme Court. Only last week, the High Court ruled, astonishingly, that Donald Trump may use monies to build a border wall specifically rejected by Congress for such a purpose. This undermines the most fundamental power of the Congress, which is to legislate and appropriate. Without Congressional command of the power of the purse, there is literally no check on executive tyranny at all. The courts have recently been friendly to Trump in other ways — a suit aimed at his violation of the emoluments clause of the Constitution has been rejected, as has that over whether Trump’s unreported hush-money payments to a former mistress at the end of the 2016 campaign was not a prosecutable violation of campaign finance laws. A couple of justices have recently shown themselves sympathetic to the preposterous claim, backed by the Justice Department, that the Affordable Care Act has been nullified by the repeal of a single one of its provisions.
Congress has nowhere left to turn at this point except to itself. If it does not move to impeach, it will leave the country functionally helpless before a president who has stated his view that the Constitution leaves him free to do whatever he wants, and who has just added Afghanistan to North Korea and Iran as places he would feel free to bomb off the face of the earth — again, at his own discretion. We are at the point of farce, defined by Webster as “an empty or patently ridiculous act, proceeding or situation.” Farce is supposed to be funny. But its ultimate mask is tragedy. That brings me back to my takeaway from the Mueller hearings. It is Mueller’s own face, which through hours of testimony held a single, somber expression. I realized, watching it from first to last, that this, and not as Mueller said in the Report itself, was his true testimony. He meant to say what his face presented: a single, unemphatic, but unflinching beacon. And what that mask told us, more than any words could, was the scope of our tragedy.