‘We Must Find Out’ Editor’s Blog – Talking Points Memo / by Josh Marshall

‘We Must Find Out’

Editor’s Blog – Talking Points Memo / by Josh Marshall / 1h

I have four key takeaways from today’s testimony. I explain them here.

1. Collusion, the underlying details about what happened in the 2016 campaign and how it may have continued into the Trump presidency, is what matters. The contrast between the morning and the afternoon testimony made that crystal clear. This isn’t to say that the obstruction portion of the investigation (either substantively or as a potential reason for impeachment) isn’t important. But it’s important as a broader series of bad acts tied to the underlying question.

Most of the morning’s testimony and questioning were tied to this ‘angels on the head of a pin’ explanation about precisely why President Trump wasn’t indicted for obstruction of justice. I think any fair minded person would say that there is ample, almost overflowing evidence of obstruction. People might quibble about whether there’s sufficient evidence for a criminal conviction given the factual uniqueness of the President’s office, as the head of an agency (the DOJ) that is investigating him as a target. But the evidence is there and we really don’t need Robert Mueller to tell us that one way or another. For impeachment or other investigations his opinion is noteworthy but hardly determinative. He and his team showed us the evidence. We can make our own conclusions. What really matters, politically, as a matter of on-going national security and as a matter of democratic accountability is what the President did and how he and his campaign were involved in the 2016 interference campaign.

2. We learned that Robert Mueller is a fanatical rule follower and really wants to be done with this whole enterprise. He also appears to have some hearing loss and he’s aged significantly since he was last in the public eye in the early Obama administration. Neither point really matters, though it will be grist for a lot of the commentary.

3. Adam Schiff and really the whole House Intelligence committee is just wildly better at this than Jerry Nadler and the Judiciary Committee. To a degree that is because they were focusing on what I’ve explained above is really the wrong question. But I think it goes beyond that, indeed to the decision to make that the focus in the first place. They made a technical legal question the core of the exchange rather than the substance. As countless observers have noted, what violates a statute law is not what is most important here. It’s the substance of a would-be President and then President freely encouraging, cooperating with and profiting from the assistance of a hostile foreign power. The contrast between Schiff and Nadler was painful.

4. Through countless debates over recent months we’ve had one core issue. We relied on a criminal investigation with the Trump/Russia scandal rather than an investigative commission or true congressional inquiry. That flawed decision is at the heart of most of what was discussed today.

Normally, prosecutors should investigate and indict or not indict and that is it. That was the repeated claim from Committee Republicans today and if it’s a conventional criminal probe they’re right. To them, there really shouldn’t have been a Report at all. Indeed, because the President couldn’t be indicted he shouldn’t even have been investigated at all. All of these claims make sense if you buy into the premise that this is a conventional criminal investigation – something the current Special Counsel guidelines leave ambiguous.

In practice it’s not true.

What the public has needed and to a great degree expected was not specific indictments or non-indictments but answers on what actually happened. Illumination rather than prosecution is what is really critical, especially since the most serious kinds of wrongdoing may not be crimes. That fact, by the enfolded logic of the probe, meant that the most critical information remained confidential, with the possibility of real disclosure in the hands of Bill Barr, the President’s fixer.

Because the only real investigation is a criminal one, we’re told that it’s really not ours to know. The only question we get an answer to is whether there was sufficient evidence to mount a criminal prosecution. That’s a legitimate legal standard. It’s all but meaningless as a civic, democratic standard. We got some information in the Report. But we didn’t get to see any of the key witnesses testimony. We can’t ask the chief investigators the most basic questions about what they found. Mueller and his team say we get some information, the Report. Republicans say we should get none. Both operate, however, on the basic premise that this is a criminal investigation and the public’s right to know is highly circumscribed by a thicket of DOJ guidelines and Bill Barr’s efforts to protect Donald Trump. To a significant degree, they’re right. That’s why a public investigation, a congressional investigation are absolutely critical.

The key questions and the critical questions of accountability and national safety are not bound up in statute laws. At the end of the day, Rep. Adam Schiff seemed to suggest he would conduct such an investigation as I’ve described above. “We must find out.” It wasn’t clear to me whether he was serious about this, whether we’re going to get the kind of investigation we need or whether he just means the same in the shadows stuff that has been going on for months to no particular end. We know that the President has basically stonewalled every effort to get the testimony of people who served in his administration. That in itself is an abuse of power. But his ability to shield events during the campaign is vastly less. Everyone who shows up in the campaign period investigation should be called up to the hill for public testimony. Clearly, from today, that should happen under Chairman Schiff.

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