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July 26, 2019

CAFE Brief 07/26: Mueller Finale, Death Penalty Revived, and Epstein Injured

All focus was on Mueller this week, with special coverage on Stay Tuned with Preet and extended analysis for CAFE Insiders.

On the docket for Monday’s episode of CAFE Insider: Preet Bharara and Anne Milgram refine their thinking on Mueller, weigh in on the decision to resume federal capital punishment after a long hiatus, and more. To listen, join the CAFE Insider community. Thank you to all for supporting our work!

July 26th, 2019

No sign of the news cycle slowing down, and we’re on top of it. Former Special Counsel Robert Mueller confirmed during his seven-hour congressional testimony on Wednesday that his report did not exonerate the President; the federal government has reinstated the death penalty for the first time in nearly two decades; and Jeffrey Epstein was found injured and semi-conscious in his jail cell. Let’s dive in!


WASHINGTON, DC – JULY 24: (AFP OUT) Former Special Counsel Robert Mueller testifies before a House Judiciary Committee hearing about his report on Russian interference in the 2016 presidential election
Mueller testifies

Former Special Counsel Robert Mueller testified before the House Judiciaryand Intelligence committees on Wednesday about his investigation into Russian interference in the 2016 presidential election and the President’s attempts to obstruct it. As expected, Mueller largely stayed within the four corners of his report, declining to speak about the origins of the probe, the methodology, behind-the-scenes deliberations, even his thoughts on what can be done to prevent any future attacks on U.S. democracy. Earlier this month, Mueller, who had previously stated, “[t]he report is my testimony,” sought advice from the Justice Department “concerning privilege and other legal bars” applicable to his testimony, and was instructed to confine his answers to “the boundaries of [his] public report.”

House Judiciary Committee hearing

House Judiciary Committee Chairman Jerry Nadler (D-N.Y.) began the hearing with a series of questions aimed at discrediting Trump’s repeated false claims that the report “found that there was ‘no obstruction’ and that it ‘completely and totally exonerated’ him.” Mueller confirmed that he did not exonerate the President, saying that Trump “was not exculpated for the acts that he allegedly committed.” In an exchange with Rep. David Cicilline (D-R.I.), Mueller agreed that “an unsuccessful attempt to obstruct is still a crime,” undercutting arguments made by Trump and Republicans that there was no obstruction of justice because Mueller was never fired.

A line of questioning by Rep. Ken Buck (R-C.O.) significantly backfired when he asked Mueller whether Trump could be charged with obstruction of justice after he left office. Mueller decisively replied “yes,” and Democrats are now thanking Rep. Buck for this soundbite-worthy moment of Mueller saying on the record that a president could be indicted when he or she is no longer in office.

In a notable exchange with Rep. Ted Lieu (D-C.A.), Mueller said “that is correct” when asked whether the Office of Legal Counsel (OLC) opinion stating that a sitting president cannot be indicted was the reason he did not seek obstruction of justice charges against Trump. Mueller walked back this answer in his opening statement to the House Intelligence Committee, clarifying that the President was not indicted because the Special Counsel’s Office (SCO) did not make a determination as to whether or not the President committed a crime, and that it was not correct to say the SCO didn’t charge the President “because of the OLC opinion.”

House Intelligence Committee hearing

Chairman Adam Schiff (D-C.A.) opened the House Intelligence Committee’s hearing arguing that in welcoming Russian offers of dirt on Hillary Clinton, the Trump campaign showed  “disloyalty to country.” Mueller confirmed that the Trump campaign “welcomed the Russian help,” and that his investigation was neither a “witch hunt” nor a “hoax.” Mueller also stated that it is a “crime” to knowingly accept assistance from a foreign government. This response adds further significance to Trump’s admission during an interview last month with ABC News’ George Stephanopoulos that he would accept foreign assistance and likely not report it to the FBI.

In his exchange with Rep. Sean Maloney (D-N.Y.), Mueller provided insight into his decision not to subpoena Trump for an in-person interview, explaining that the President would have fought the subpoena, and the SCO would have been “in the midst of the investigation for a substantial period of time.” When asked about Trump’s written answers to questions posed during the investigation, Mueller “generally” agreed that the answers were “inadequate and incomplete,” with some responses contradicting evidence Mueller gathered.

Republican strategy

In Mueller’s opening statements before both Committees, he clearly stated that he would not discuss the origins of the Russia investigation or the dossier authored by former British intelligence officer Christopher Steele (“Steele Dossier”), as they are “the subject of ongoing review” by the Justice Department. Nevertheless, the vast majority of Republican committee members criticized the use of Steele’s research, which they claim was the basis for launching the Trump-Russia investigation, and questioned whether Joseph Mifsud, the Maltese professor who told former Trump campaign adviser George Papadopoulos that the Russians had Clinton emails, is a U.S. agent rather than a Russian one. Ranking member Rep. Devin Nunes (R-C.A.) alleged in his opening statement that there is “collusion between Russia and the Democratic party.”

Mueller came under criticism from several Republican committee members, including Rep. John Ratcliffe (R-T.X.), who argued that it is not the prosecutor’s role to exonerate or to prove someone’s innocence, and that Mueller placed an “inverted burden of proof” on the President, depriving him of the presumption of innocence. Rep. F. James Sensenbrenner Jr. (R-W.I.) and Rep. Buck (R-C.O.) faulted Mueller for laying out hundreds of pages worth of investigative material in the report without ultimately charging Trump with a crime. Although Mueller mainly refrained from fighting back attacks, he defended his work against Rep. Tom McClintock’s (R-C.A.) accusation that he made “a political case” against the President, rather than a legal one. Mueller said: “I don’t think you will review a report that is as thorough, as fair, as consistent as the report that we have in front of us.”

Mueller’s performance

Many people expressed disappointment with Mueller’s performance, lamenting that he was not telegenic, stammered too much, and failed to provide the blockbuster version of the testimony that they had anticipated. Writing in The Washington Post, former political consultant Ed Rogers said that Mueller “came across as an imprecise figurehead but not a hard-nosed prosecutor.” The New York Times Editorial Board described him as “frail and at times even confused.”

What’s next?

The Lawfare team writes that the testimony’s significance lies in the “initiating of the long-belated creation of an Article I record of the president’s conduct—a shifting of the investigative locus from the executive branch to the legislative branch.”

Following Mueller’s testimony on Wednesday, the House Democratic leadership held a press conference reaffirming their commitment to investigating Trump’s conduct: “Today was a watershed day in telling the facts to the American people,” Chairman Nadler said. “With those facts we can proceed.” House Speaker Nancy Pelosi rebuffed Chairman Nadler, clarifying that the House has not yet decided whether or not to launch impeachment proceedings, and that Democrats were still “fighting the president in the courts.”

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WASHINGTON, DC – JULY 24, 2019: Former Special Counsel Robert Mueller is sworn in before testifying to the House Judiciary Committee about his report on Russian interference in the 2016 presidential election

  • On Thursday, Attorney General Bill Barr instructed the Federal Bureau of Prisons (BOP) to restore executions in the federal system for the first time in 16 years. According to a Justice Department statement, Barr directed the BOP “to schedule the executions of five death-row inmates convicted of murdering, and in some cases torturing and raping, the most vulnerable in our society—children and the elderly.”
  • Authorities are investigating how Jeffrey Epstein, a wealthy financier who is facing sex trafficking charges involving dozens of girls, was injured in jail on Tuesday. Epstein was reportedly found semi-conscious with marks on his neck and is now on suicide watch. Anonymous sources have provided conflicting accounts, alleging that Epstein either tried to hang himself, was assaulted, or staged an attack to be moved to a different facility.
  • U.S. District Court Judge Jon Tigar granted a preliminary injunction on Wednesday against the Trump administration’s new rule that would force most migrants to lodge asylum claims in the first country to which they travel, Mexico for the majority of Central American migrants, rather than at the U.S. border. The order prevents the new rule from taking force until the legal challenge is resolved.

Further Reading

“Trump Administration Considering ‘Travel Ban’ On Guatemalans After Asylum Snub,” NPR, 7/25/2019

“House Dems authorize subpoenas for top White House officials’ private communications,” Politico, 7/25/2019

“Trump Must Face Suit Over Alleged Multilevel Marketing Fraud,” Bloomberg, 7/24/2019

“Trump wants judge to block leading House Democrat from even requesting his state tax returns for now,” CNBC, 7/24/2019

“Jury convicts former business partner of Michael Flynn on charges of conspiracy, acting as a foreign agent,” The AP, 7/23/2019

“Trump Files Suit Against House Ways and Means Committee and New York State Officials,” Lawfare, 7/23/2019

“Judge halts Democrats’ subpoenas of Trump Org docs in emoluments case,” CNN, 7/19/2019

“George Nader indicted on child sex transportation charges,” The Washington Post, 7/19/2019

“Prosecutors weighed DOJ policy blocking indictment of a sitting president in closing Trump hush-money probe,” USA Today, 7/18/2019

Stay Informed,

Adrienne Cobb & the CAFE team

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