The Two Legal Questions Robert Mueller — and the Media — Avoided | Opinion

There were two moments in the Robert Mueller hearings this past Wednesday that neither CNN nor Fox news — or anyone else — bothered to talk about. Two moments centered around two fundamental legal questions that worth shining a light on now that the hearings are behind us.

It doesn't matter whether you believe President Trump is a lying obstructionist. Or a victim of a politically charged prosecution. The two questions were about fundamental due process standards for all American citizens. Which includes Presidents we like. And don't like.

The law, and the standards by which prosecutors work, should apply to all Americans equally. Whether that person is a politician or a poet. A CEO or a janitor. Principles should matter more than partisanship when it comes to how prosecutors do their business.

The two moments — two exchanges, actually — no major media outlet bothered to replay all day Thursday or Friday in the Mueller endless partisan postmortems were not the type that would light up Twitter. Or work their way through the hyper-partisan silos of social media. But they had everything to do with law and order. And due process.

Robert Mueller
Former special counsel Robert Mueller testifies before the House Intelligence Committee about his report on Russian interference in the 2016 presidential election in the Rayburn House Office Building on July 24 in Washington, D.C. Chip Somodevilla/Getty

The first exchange occurred in the House Judiciary Committee hearing. Representative Guy Reshenthaler (R – PA) is no stranger to the law: he served in the US Navy Judge Advocate General's Corp during the Iraq War, and as a district court judge stateside.

He began his questioning by going back in time to Independent Counsel Ken Starr's tenure, and a statement from former Attorney General Janet Reno.

Reschenthaler: Mr. Mueller, are you familiar with the now expired Independent Counsel Statute? It's a statute under which Ken Starr was appointed.

Mueller: I am not that familiar with that, but I'd be happy to take your question.

Reschenthaler: Well, the Clinton administration allowed the Independent Counsel Statute to expire after Ken Starr's investigation. The final report requirement was a major reason why the statute was allowed to expire. Even President Clinton's AG, Janet Reno, expressed concerns about the final report requirement, and I'll quote AG Reno. She said, "On one hand, the American people have an interest in knowing the outcome of an investigation of their highest officials. On the other hand, the report requirement cuts against many of the most basic traditions and practices of American law enforcement. Under our system, we presume innocence and we value privacy. We believe that information obtained during a criminal investigation should, in most cases, he made public only if there is an indictment and prosecution, not in a lengthy and detailed report filed after decision has been made not to prosecute. The final report provides a forum for unfairly airing a target's dirty laundry, and it also creates yet another incentive for an independent counsel to over investigate in order to justify his or her tenure and to avoid criticism that the independent counsel may have left a stone unturned."

There was a pause. It was clear where Reschenthaler was heading.

Reschenthaler: Mr Muller, those are AG Reno's words. Didn't you do exactly what AG Reno feared? Didn't you publish a lengthy report unfairly airing the targets dirty laundry without recommending charges?

Mueller: I disagree with that.

Reschenthaler wasn't finished.

Reschenthaler: Okay. Did any of the witnesses have a chance to be cross examined?

Mueller: I'm not gonna answer that.

Reschenthaler: Did you allow the people mentioned in your report to challenge how they were characterized?

Mueller: I'm not going to get into that.

We all know the answer was no, and wondered why Mueller couldn't just admit to what we all knew. The exchange continued.

Reschenthaler: Okay. Given that AG Barr stated multiple times during his confirmation hearing that he would make as much of your report public as possible, did you write your report knowing that it would likely be shared with the public?

Mueller: No.

Reschenthaler: Did knowing that the report could, and likely would be made public, did that alter the contents that you included?

Mueller: I can't speak to that.

No one listening thought those answers were credible. Reschenthaler continued.

Reschenthaler: Despite the expectations that your report would be released to the public, you left out significant exculpatory evidence. In other words, evidence favorable to the president, correct?

Mueller: I actually would disagree with you. I think we strove to put into the report exculpatory evidence, as well.

Reschenthaler was making a point that few media analyst made during the length post-hearing analyses: that Mueller's report was unchallenged by any legal defense team, and untested by cross-examination.

But the former JAG lawyer wasn't finished.

Reschenthaler: Isn't it true that on page one of volume two, you state, when you're quoting the statute, you had an obligation to either prosecute or not prosecute.

Mueller: Well, generally that is the case.

Reschenthaler: Right.

Mueller: Although most cases are not done in the context of the president.

Reschenthaler: And in this case, you made a decision not to prosecute, correct?
Mueller: We made a decision not to decide whether to prosecute or not.

That use of double speak – we made a decision not to decide - made Mueller look not merely evasive, but downright duplicitous.

The cross-examination of Mueller continued.

Reschenthaler: So essentially what your report did was everything that AG Reno warned against.

Mueller: I can't agree with that characterization.

Reschenthaler: What you did is you compiled nearly 450 pages of the very worst information you gathered against the target of your investigation, who happens to be the President of the United States. And you did this knowing that you were not going to recommend charges, and then the report would be made public.

Mueller: Not True.

Then came Reschenthaler's closing words:

Reschenthaler: Mr. Mueller, as a former officer in the United States JAG Corps, I prosecuted nearly a hundred terrorists in a Baghdad courtroom. I cross-examined the Butcher of Fallujah in defense of our Navy SEALS. As a civilian, I was elected a magisterial district judge in Pennsylvania. So I'm very well versed in the American legal system. The drafting and the publication of some of the information in this report, without an indictment, without prosecution, frankly flies in the face of American justice. And I find those facts — this entire process — Un-American.

Then came the next exchange no one in America saw unless they were glued to their TV sets all day last Wednesday. It happened when Mueller appeared before the House Intelligence Committee.

Mike Turner, who practiced law for 17 years and served as Mayor of Dayton, Ohio before becoming the U.S. Representative for Ohio's 10th Congressional district, didn't waste time drilling down on one word in the Mueller report.

Turner: Mr. Mueller, I want to focus on one word in your report. It's the second to the last word in the report. It's exonerate. The report states accordingly, "While this report does not conclude that the president committed a crime, it does not exonerate him." Now in the judiciary hearing in your prior testimony, you've already agreed that exonerate is not a legal term, that there is not a legal test for this. So I have a question for you Mr. Mueller. Mr. Mueller, does the Attorney General have the power or authority to exonerate?

Mueller didn't respond, so Turner continued, and began to stack law books and textbooks next to his microphone as he spoke.

Turner: What I'm putting up here is the United States Code. This is where the Attorney General gets his power and the Constitution and the annotated cases of these, which we've searched. We even went to your law school because I went to Case Western but I thought maybe your law school teaches it differently. And we got the Criminal Law textbook from your law school. Mr. Mueller, nowhere in these ... because we had them scanned ... is there a process or description on exonerate. There's no office of exoneration at the Attorney General's office. There is no certificate at the bottom of his desk. Mr. Mueller, would you agree with me that the Attorney General does not have the power to exonerate?

Mueller: I'm going to pass on that.

Turner: Why?

Mueller: Because it embroils us in a legal discussion and I'm not prepared to do a legal discussion in that arena.

Turner: Well, Mr. Mueller, you would not disagree with me when I say that there is no place that the Attorney General has the power to exonerate and he's not been given that authority. You would not disagree.

Mueller: Yeah. I take your question.

Turner: Great. Well, the one thing that I guess is that the Attorney General probably knows that he can't exonerate, either. And that's the part that kind of confuses me because if the Attorney General doesn't have the power to exonerate, then you don't have the power to exonerate. And I believe he knows he doesn't have the power to exonerate. And so this is the part that I don't understand. If your report is to the Attorney General and the Attorney General doesn't have the power to exonerate and he knows that you do not have that power, you don't have to tell him that you're not exonerating the president. He knows this already. So then that kind of changed the context of the report.

Mueller: No. We included it in the report for exactly that reason. He may not know it and he should know it.

Turner: So you believe that the Attorney Bill Barr believes that somewhere in the hallways of the Department of Justice there's an office of exoneration?

Mueller: No, that's not what I said.

That's when things got really interesting.

Turner: Well, I believe he knows and I don't believe you put that in there for Mr. Barr. I think you put that in there for exactly what I'm going to discuss next.

Then came the most important moment in the Mueller hearing.

Turner: Now, this is my concern, Mr. Mueller. This is the headline on all of the news channels while you were testifying today: Mueller, Trump was not exonerated. Now Mr. Mueller, what you know is that this can't say Mueller exonerated Trump because you don't have the power or authority to exonerate Trump. You have no more power to declare him exonerated than you have the power to declare him Anderson Cooper. So the problem that I have here is that since there's no one in the criminal justice system that has a power, the president pardons, he doesn't exonerate; courts and juries don't declare innocent, they declared not guilty. They don't even declare exoneration. The statement about exoneration is misleading and it's meaningless and it colors this investigation.

Mueller had no serious rebuttal to either Reschenthaler's or Turner's questions. Not to the release of his investigation materials without a charge or indictment, which violated not just the Reno standard, but a standard prosecutors routinely comply with across this country.

Moreover, Mueller had no serious explanation for his calculated use of the word exonerate at the end of his report. It had the desired effect of imputing guilt where none was proven, and made headlines around the world.

Mueller's inability to answer those two serious legal due process questions was the most compelling part of the Mueller hearings that most Americans didn't see.

The truth is, presumption of innocence isn't just a theory in America. It is the bedrock of our justice system, and the criminal law.

And it applies to everyone. Even a President of the United States half of the country deplores.

Lee Habeeb is VP of content for Salem Radio Network and host of "Our American Stories." He lives in Oxford, Mississippi, with his wife, Valerie, and his daughter, Reagan.

The views expressed in this article are the author's own.​​​​

The Two Legal Questions Robert Mueller — and the Media — Avoided | Opinion | Opinion