Dear Robert Mueller: Not Testifying Publicly Is an Intensely Political Decision

Robert Mueller deserves some props for trying to be a consummate professional, avoiding political theater and playing the part of the guarded, hyper-competent institutional loyalist. But there are times when that approach can be counterproductive, including to the very institutions whose honor and seriousness it is intended to defend. This is one of those times.

Special counsel Robert Mueller is eager to avoid the politics swirling around his investigation into the Trump campaign and Russia’s 2016 influence efforts and doesn’t want to testify publicly on Capitol Hill about his findings, House Judiciary Committee Chairman Jerry Nadler said Thursday.

“He’s willing to make an opening statement, but he wants to testify in private,” he said. “We think it’s important for the American people to hear from him and to hear his answers to questions about the report.”

In another era, this might have been defensible. In the Trump era, when the guard rails against an unbalanced despotic executive are rapidly failing and every battle is being waged not within the guidelines of institutional laws and norms but in the court of public opinion, it is crucial that every player understand and participate in the game that is being played.

In Mueller’s case, he himself set the rules of the game by placing prosecution for obstruction of justice out of the hands of the Justice Department and into the hands of Congress. Mueller can hardly be blamed for this: he was simply following guidelines established by the agency to avert a constitutional crisis, and the Constitution does clearly establish that accountability for the president lies in impeachment by the House and trial in the Senate.

But, of course, that is a fundamentally political process. The Founders made a forgivable error in assuming that the prerogatives of each branch of government would overwhelm partisan corruption by giving Congress the power to hold a lawless executive accountable. But in the modern era, it is obvious that only a very public airing of a president’s crimes would put enough pressure on congressional members of his own party to convict and remove him from office.

In refusing to make public testimony about the results of his inquiry into the president’s wrongdoing—the results of which were very publicly mischaracterized by an attorney general acting as the president’s personal defense attorney—Mueller is himself making an intensely political decision. It’s a decision that ironically assists the president in obstruction of justice by preventing a jury of his peers in the Senate from experiencing the public pressure that might be required to keep them honest.

Once accountability becomes a matter for Congress rather than law enforcement, everything about it becomes a de facto political spectacle. Testimony given in private makes no difference, as quiet secrecy is precisely what the president’s defenders are counting on for his defense. By contrast, the president and Attorney General Barr are clearly set on selectively and speciously declassifying elements of the investigation designed to cast the investigators in a bad light. The institutions—or the institutionalists within them—likely won’t be able to resist that pressure.

There is no room left for guarded hyper-professionalism at this moment. The entire process of justice for Trump is now political, and refusing to publicly testify is also a political act—one that assists the president’s cronies in helping him to escape accountability for the very crimes Mueller helped uncover.

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David Atkins

David Atkins is a writer, activist and research professional living in Santa Barbara. He is a contributor to the Washington Monthly's Political Animal and president of The Pollux Group, a qualitative research firm.