Weeks like this make me regret there’s not a Wimbledon-like “performance rule” for politics, as when Australian tennis player Bernard Tomic was fined $56,100 for not trying hard enough to win his match against Jo-Wilfried Tsonga.
For more than two years, I’ve written that congressional Democrats never had the slightest intention of impeaching President Trump and, instead, have been running out the clock while pretending to build a case against him. Now, with former special counsel Robert Mueller scheduled to testify before Congress on Wednesday, this match is getting even more embarrassing than Tomic’s fiasco at Wimbledon. The problem is that this match has lasted roughly 580 days rather than 58 minutes.
The Mueller hearing is shaping up to be more of an autopsy than an exploration. Committee members will ask Mueller about his findings, and Mueller will read the findings as if he is recording an audio book for the visually impaired. In the meantime, courts and prosecutors have left various allegations against Trump in legal tatters:
Collusion
After two years of pundits and politicians assuring us that crimes linked to collusion were well-established, Mueller found there was no basis to bring a charge on any collusion-related grounds.
Pundits and trolls have engaged in open denial, claiming Mueller was holding such indictments and slamming those who state otherwise as “Trumpsters” or “apologists.” That group now includes Mueller, who stated after an exhaustive two-year investigation that he could “not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.”
Of course, this all began with collusion allegations and how Trump worked with Russians to undermine our democracy. Now members of Congress rarely discuss collusion.
Obstruction
Democrats reportedly plan to focus on obstruction, which Mueller surprisingly left unresolved. I will not repeat why Mueller’s position was incomprehensible and unsupportable. However, Attorney General Bill Barr and his then-deputy, Rod Rosenstein, accepted the entirety of Mueller’s report and evidence, yet still concluded there was no case for an obstruction charge.
The reason was simple: Mueller detailed non-criminal motivations behind Trump’s actions, a record that would create an easy defense case on the issue of intent.
Democrats are now adopting their own version of “Lock her up!” chants, with promises of prosecution if only people will vote for them. For example, Sen. Kamala Harris (D-Calif.) has declared her Justice Department would “have no choice” but to prosecute Trump if she is elected president. That, of course, will not happen, any more than Hillary Clinton was ever at real risk of incarceration.
Moreover, it would be implausible to remove a president under a criminal-obstruction theory rejected by the Justice Department — including Rosenstein, who was long lionized by Democrats.
Campaign finance
Democrats have highlighted the fact that newly released court records show Trump and his aides were directly involved in the effort to pay money to porn star Stormy Daniels and former Playboy bunny Karen McDougal to keep them silent about affairs. For two years, there has been a constant cable-news drumbeat from legal experts, saying such payments were undeniably crimes for those involved, from Trump aides to Trump lawyer Michael Cohen to Trump himself.
The problem is, those documents being exhaustively covered this week were released because there were no charges to be brought on campaign finance crimes. This is a bit of a surprise, since Cohen included the payoffs in his plea deal; the other alleged culprit in that exchange was Trump.
One could argue that an indictment against Trump may be waiting until he leaves office, under Justice Department rules. However, there have been no charges against any other person associated with the payoffs, including various Trump Organization figures. The fact is, campaign finance charges are rare and hard to prove, as shown by the failed prosecution of former Democratic presidential candidate John Edwards.
Emoluments
With the collapse of collusion, various Democrats and lawyers have pushed the claim that Trump’s D.C. hotel is a giant “emolument” magnet.
Article 1, Section 9, prohibits emoluments, which cover compensation or gifts tied to a person’s public office, but it has never been well-defined. For example, Benjamin Franklin received a diamond-encrusted box from the King of France while serving as U.S. ambassador; Congress told him to keep it.
Arguments that the Trump family’s hotel constitutes an emolument are something of a stretch. Still, filings to that effect have been made by Citizens for Responsibility and Ethics in Washington (CREW) board chairman and vice-chairman Norman Eisen and Richard Painter, constitutional law scholars Erwin Chemerinsky, Laurence H. Tribe and Zephyr Teachout, and Deepak Gupta of Gupta Wessler PLLC.
While District Court Judge Peter Messitte unwisely ruled that these groups had standing and a meritorious claim, the Fourth Circuit recently dismissed the action as unsupportable. The court was equally dismissive of the theory that the hotel benefits from Trump’s name since many people, including diplomats, likely avoid it due to it association.
Judges in both Washington and New York also have rejected such lawsuits.
Since standing was never established, Congress could argue that there were unconstitutional emoluments lurking in these cases. However, there is no clear precedent to support that theory and, despite good-faith arguments, no president has been impeached on such uncontested legal grounds.
In the meantime, Congress again overwhelmingly rejected impeachment with a vote this week in which members tried to add bigotry as an impeachable offense. It failed, 332-95.
So if these crimes and impeachable acts have been largely negated, what is Congress planning to do on Wednesday? The answer is play … just not well.
Mueller has made it clear that he does not want to testify and will decline to give any information beyond his report. He has held up the hearing for weeks, first by declining to testify and then unilaterally maintaining that he would testify for only two hours before the House. Witnesses — particularly private citizens, as Mueller now is — usually are not given such leeway. One would think that after accepting the special counsel’s job and spending millions of public dollars, Mueller would have less, not more, ability to stipulate limits.
Yet, Democrats have yielded to his demands with only a slight increase in time, divided into the ridiculous five-minute segments of most congressional hearings.
Most members will prance and pose for four minutes in just introducing themselves. For his part, Mueller will continue his performance as the “American Sphinx,” even though there is much he should answer about his own conduct, let alone his conclusions (or lack thereof).
It will be nothing but “puddlers” — chip and drop shots — but it won’t matter. The same analysts who have been wrong for two years will give the same breathless courtside commentary. And the members of the congressional committees will scream like John McEnroe — while playing like Bernard Tomic. Of course, unlike Tomic, those members will continue the match despite it having been called weeks ago.
The play is and always has been for 2020. That is why there is no performance fine in politics because the score is entirely irrelevant — and you are never sure of what game is actually being played.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.