Davis: Advice to House Democrats — Mueller is right to stick to the facts; don’t ask him to imitate Starr and Comey

There are three reasons why House Democrats during Wednesday’s public hearings should support, not criticize, former special counsel Robert Mueller’s decision to stick to the facts and evidence and to refuse to offer his own opinions on the evidence of Trump’s apparent attempts to obstruct justice.

First and foremost is the Due Process clause of the U.S. Constitution. Prosecutors violate it by offering any opinions at all without a published indictment and a trial with due process rights to the accused. 

Second, the U.S. Department of Justice’s (DOJ) long-standing rules and policies under Democratic and Republican administrations forbid a prosecutor publicly expressing his opinion on the evidence — again, based on due process principles. 

And third, by following these two principles, Mueller avoided the historic ignominy of being compared to Ken Starr and James Comey, who ignored both of them. Lest we forget, Starr’s public comments on Whitewater and his report to Congress on impeachment were improperly filled with opinion and innuendo of guilt. James Comey thought it was OK to offer his negative opinion of the evidence regarding Hillary Clinton’s email practices — yet then said she had committed no prosecutable crime. The DOJ’s independent inspector general harshly criticized Comey for this and other misconduct.

During Wednesday’s hearings, Democrats on the House Judiciary and Intelligence committees should not ask Mueller to follow the unhappy examples of Starr and Comey. Rather, they should ask Mueller to explain in detail the evidence contained in his report supporting specific actions by President Trump that strongly infer that he was attempting to impede the Mueller investigation of himself and his campaign. 

Here are three examples: 

• According to the president’s White House counsel, Don McGahn, Trump ordered McGahn to fire Mueller. And then, according to McGahn, Trump ordered McGahn to lie that the president had ever issued such an order. House Democrats should ask Mueller to explain exactly what McGahn said and what his reaction was to the president’s order to lie about the order. Then House members and the American people can decide why, if Trump didn’t think he had done anything wrong in issuing the order, he asked McGahn to lie about it. 

• What evidence did his special counsel team develop that Trump lied — willfully and knowingly — when he dictated a statement on Air Force One on July 9, 2017, that the June 9, 2016, Trump Tower meeting with Russian agents was about “adoption” of children? Again, if Trump didn’t think there was anything wrong about the Trump Tower meeting with Russian agents offering to meddle in the 2016 campaign to help Trump and harm Clinton, then why lie about it so blatantly? 

• House members should also ask Mueller about the evidence that Trump had asked then FBI Director James Comey to “go easy” on his former national security adviser, Michael Flynn, during the FBI’s investigation of Flynn. What did Flynn tell Mueller about why he talked to the Russian ambassador after the 2016 election and why he lied to the FBI about that conversation? Was it because the conversation was about Trump’s desire to relieve Putin and colleagues of then existing U.S. economic sanctions against them? And if so, was this a Trump quid pro quo for all the help the Kremlin had given Trump in the campaign? 

Most of the American people (aside from the small minority of truth-deniers who Trump still considers to be his “base”) ultimately have common sense and care about facts. They can reach and will reach the inevitable conclusions, the unavoidable inferences, from proven facts. After all, thousands do so every day when they serve on juries.

So, Democrats should see Wednesday’s hearings as a great opportunity to educate the American people about indisputable facts that support the inference of Trump abusing his presidential powers to obstruct the Mueller investigation and to protect himself and his campaign.

Then it will be the job of the House of Representatives to initiate an impeachment investigation, using all subpoena powers available under the Constitution during such an investigation, to develop further evidence about whether the president committed impeachable offenses. 

There should no longer be political considerations whether an impeachment inquiry should move forward in the House. It must.   

In fact, Wednesday’s House hearings represent, de facto at least, the first day of such an inquiry.

Davis served as special counsel to former President Bill Clinton  and served on the Privacy and Civil Liberties Oversight Board, appointed by former President George W. Bush. He is co-founder of the law firm of Davis Goldberg & Galper and the strategic media and crisis management firm Trident DMG.  He authored “Crisis Tales: Five Rules for Coping with Crises in Business, Politics and Life.” He can be followed on Twitter @LannyDavis.