Lowering expectations: treat Robert Mueller as a hostile witness and focus on the inadequacies of his investigation

Special Counsel Robert Mueller should be considered a “hostile witness” in his testimony before congressional committees on Wednesday. As Mueller made clear at his May press conference announcing the end of his investigation, “The special counsel said that he hoped the news conference would be his last public comments and that if he were compelled to testify before Congress, he would not speak beyond what he wrote in his 448-page report.”

After weeks of negotiating for his voluntary testimony, Mueller forced the congressional committees to compel his testimony by subpoena. It was not a “friendly subpoena” to give him cover to testify. Mueller does not want to testify.

A spokesman for Mueller, Jim Popkin, said Monday that Mueller will have a brief opening statement and then offer the entire report of the special counsel investigation as his full statement for the hearing record. Mueller will make full report his official statement to Congress. Popkin said Mueller intends to abide by the commitment he made in his only public statement about the report.

A letter from the Justice Department on Monday agreed with Mueller’s approach, telling him that he “must remain within the boundaries” of the public version of his report on the Russia investigation. Justice Dept. Letter Warns Mueller to Stay in ‘Boundaries’ of His Report:

The department also told Mr. Mueller that he could not “discuss the conduct of uncharged third parties,” like President Trump, his family and his closest associates, nor could he discuss “the redacted portions of the public version of your report.”

“Should you testify, the department understands that testimony regarding the work of the special counsel’s office will be governed by the terms you outlined on May 29,” the department said, referring to a rare public news conference by Mr. Mueller in which he said he would appear before lawmakers only reluctantly, and would not discuss any matters not contained in his 448-page report.

“The report is my testimony,” Mr. Mueller said then.

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In its letter to Mr. Mueller, the Justice Department highlighted his public statements vowing to discuss only those details from his investigation that were already in the public record. The department couched the letter as a response to his past remarks and said it agreed with Mr. Mueller’s assertion that he should “not go beyond our report.”

It should be noted that Robert Mueller requested this clarification from the Department of Justice.

I read this to mean that Mueller was looking for cover from the DOJ to not answer questions from the congressional committees, and the Attorney General was more than happy to provide him with several testimonial privileges that do not apply to Robert Mueller (he is now a private citizen and can testify to any matters that do not fall under classified national security, grand jury proceedings, or ongoing investigations by the Department of Justice):

Finally, any testimony must remain within the boundaries of your public report because matters within the scope of your investigation were covered by executive privilege, including information protected by law enforcement, deliberative process, attorney work product, and presidential communications privileges. These privileges would include discussion about investigative steps or decisions made during your investigation not otherwise described in the public version of your report. Consistent with standard practice, Department witnesses should decline to address potentially privileged matters, thus affording the Department the full opportunity at a later date to consider particular questions and possible accommodations that may fulfill the committees’ legitimate need for information while protecting Executive Branch confidentiality interests.

In other words, Mueller is not to discuss any limitations placed upon the scope of his investigation by Deputy Attorney General Rod Rosenstein, acting Attorney General Matthew Whitaker, or Attorney General William Barr, or any deliberations among his special counsel team, or between his special counsel team and the Department of Justice, regarding decisions not to subpoena certain witnesses (e.g., Donald Trump and Donald Trump, Jr.), and decisions regarding prosecutions and non-prosecutions, which in all likelihood includes his explanation for not making a prosecutorial decision on obstruction of justice, which is what he was hired to do.

Mueller may also not answer whether it was the Office of Legal Counsel policy prohibiting charging a sitting president with a crime, or it was his intention that his report was to serve as a “road map” for a congressional inquiry of impeachment. Mueller may also not answer about his discussions and any disagreement with William Barr’s misleading summary of his report.

These are the behind the scenes meat of the matter things that Congress wants to learn about, and has every right to know about, that is not contained within the four corners of the Mueller report. One can reasonably argue that this is a coverup of how the Department of Justice handled this Special Counsel investigation, and sadly, Robert Mueller appears all too willing to play along.

All previous special counsels have testified voluntarily before Congress without this kind of prima donna melodrama.

If all Robert Mueller is willing to do is a dramatic reading from his report, there is already a good “audio book” version of this from Lawfare Blog. Introducing “The Report”: A Podcast Series from Lawfare.

Lawfare Blog has also prepared a summary of Mueller on Trump: Everything the Special Counsel’s Report Says the President Did, Said or Knew.

Ronald A. Klain, former senior White House aide to Presidents Barack Obama and Bill Clinton, writes at the Washington Post, Robert Mueller’s testimony seems destined to disappoint. But Democrats could make it worthwhile.

Democratic hopes are building for “Mueller day”: the long-anticipated appearance of former special counsel Robert S. Mueller III before House committees. But Mueller is likely to disappoint Democrats, who are pursuing a flawed strategy regarding his appearance. Instead of hoping that Mueller’s oral presentation of his report will be a “game changer,” Democrats should focus on the most useful purpose “Mueller day” could serve: making the case for congressional inquiry into the gaps, inadequacies and unanswered questions left by Mueller’s report. [And there are many.]

Democrats might be fooling themselves in believing that Mueller’s live testimony will shift public opinion. First, though it is true that few members of the public have read the report’s 400-plus pages, there has been no shortage of media coverage of its most important findings; all that Mueller’s appearance will add is another day of video clips on top of the countless hours that already exist.

Second, Mueller’s in-person testimony is unlikely to be any more evocative than his lawyerly, tepid, miss-the-forest-for-the-trees written report. The report’s plodding incident-by-incident deconstruction of the events of 2016 obscures the core narrative of its findings: The Trump campaign actively sought help from Russia, Russia provided it and the Trump campaign made extensive use of it. Mueller’s report instead chased the question of whether there was some agreement between the Trump campaign and Russia concerning these matters — even though that is not the standard under federal election law, which does “not require agreement or formal collaboration to establish coordination.”

Thus, though Clinton-era special counsel Ken Starr wrote a report that hyped salacious details of a presidential sex scandal to create a constitutional moment, Mueller wrote one that turned pervasive evidence of coordination between a presidential campaign and a Russian influence operation into a dry treatise on federal conspiracy law. It seems unlikely that Mueller — having failed to deliver in his report — will do differently in a setting where he is less comfortable and might feel less empowered to do so.

For that reason, the widely anticipated Democratic strategy for the hearings — asking Mueller to recite “dramatic moments” and allowing him to “tell the story” of his report — might be doomed to fail.

Instead of focusing the hearings on rehashing what is in Mueller’s report, Democrats should use the hearings to justify continued investigations beyond the report. Even if Mueller gives good testimony, Wednesday should not be the finale of the Trump-Russia inquiry, with so many questions left unanswered. And since the odds are high that Mueller will not offer breakthrough testimony, it is especially critical that Democrats use the hearings not to celebrate Mueller’s report but to dramatize its two major gaps.

First, Mueller’s report left many questions unanswered. These start with why Mueller waited until late 2018 to conclude negotiations over a voluntary interview with Trump and then felt that he could not “delay” his investigation to get a court order to compel that interview. [Note: There is no time limit to an investigation, unless one was imposed by the DOJ. That is not addressed withing the four corners if his report, and Mueller has been instructed not to discuss it.] Why didn’t Mueller prosecute the Trump campaign as an entity for its exploitation of foreign campaign support in violation of U.S. law? Why didn’t Mueller prosecute Donald Trump Jr. for the solicitation of a thing of value — opposition research on Hillary Clinton at the infamous Trump Tower meeting — from a foreign source in violation of federal election law? Why didn’t Mueller run to ground all the various interactions between Trump allies and the WikiLeaks operation? All these questions get only scant explanation in Mueller’s report; they merit more complete congressional inquiries going beyond one hearing.

Second, Mueller rigorously adhered to his scope of his investigation and therefore left much of Trump’s misconduct unexamined. Unlike Starr, who pirated an investigation into an Arkansas land deal into an impeachment case over presidential sexual misconduct, Mueller took the limitations on the scope of his investigation seriously. He handed off the criminal case of Trump’s hush money payment to avoid an October 2016 disclosure of his alleged sexual relations with Stormy Daniels to prosecutors in New York; recent reports suggest that this investigation has mysteriously ended prematurely. Nor did Mueller examine how Russians — and other foreigners — have been putting cash into the Trump family’s pockets since he took office, in violation of the Constitution’s “emoluments clause.” He didn’t consider how or why Trump revealed national security secrets to the Russians in the Oval Office or overrode intelligence community concerns to grant his son-in-law a security clearance.

Thus, the Democrats’ first objective must be to reverse the dynamic where “Mueller Report” and “full investigation into Trump’s wrongdoing” are synonymous in the public mind and make clear that there are considerable areas of investigation that remain unexplored.

During the past few weeks, theater groups, movie stars and concerned citizens have conducted dramatic readings of the Mueller report. Having Mueller himself do the same will not be transformative. Democrats should use “Mueller day” not to restate what Mueller found but to make a case for why they need to explore what Mueller missed, bungled or overlooked.

As Ronald Klain previously has written, Robert Mueller failed to do his duty:

Robert S. Mueller III is a distinguished public servant. But his much-anticipated report comes up short in many respects, and Democrats made a mistake to put so much confidence in it as the touchstone of accountability for President Trump and his campaign.

* * *

The oft-repeated wisdom that Mueller “knew things we did not know” turned out to be vastly overestimated. Many of Trump’s worst acts — his encouragement of Russia to illegally spy on his opponent; his repeated use of materials stolen by foreign intelligence assets as fodder for the campaign; the firings, inducements and intimidations to shut down investigations — were all known; the anticipation that Mueller still had “a smoking gun” in his pocket unfortunately normalized the ghastly things that were already public. It turns out — thanks to a combination of ongoing indictments and brilliant journalism — we had Mueller’s key findings months ago; their public release was more reprise than reveal.

But if expectations were too high for Mueller’s report, the inevitable disappointment was exacerbated by how Mueller fell short in what he delivered.

This starts with his failure to get Trump to answer questions in person. There was ample precedent for insisting on such an interview: Bill Clinton testified before a grand jury in the Whitewater investigation; George W. Bush submitted to an interview with special counsel Patrick Fitzgerald about the Valerie Plame matter. In this case, with uncertainty about what the president knew about his son Donald Trump Jr.’s coordination with foreign hackers and meddlers; with the president at the center of lies about dealings and meetings with Russians; and with doubts about why the president did so many things to try to derail Mueller’s probe — commonly seen as indications of guilt — why didn’t Mueller press harder to question the president directly?

* * *

Mueller only offers the wan explanation that — by the time he formally asked for an interview with Trump (Dec. 3, 2018) — he already had “substantial evidence” about the events being investigated, and therefore, “the costs of potentially lengthy constitutional litigation, with resulting delay in finishing our investigation, [outweighed] . . . the anticipated benefits for our investigation and report.”

This reflects two mistakes of historic proportion. First, by delaying the question of Trump’s interview until month 19 of his tenure, Mueller allowed Trump to run out the clock — a grave tactical error. And second, in an investigation of this public import, getting “substantial evidence” but not the word of the president himself fails to fulfill the special responsibility of a special counsel. In a run-of-the-mill criminal case, a prosecutor’s decision to bypass questioning a difficult figure might make sense; when we are seeking to learn whether a presidential candidate worked with a hostile foreign power to win an election, the public deserves to have that candidate answer questions under oath.

Finally, some of Mueller’s other decisions should be publicly debated. His determination not to bring campaign finance charges against Trump Jr. for soliciting foreign assistance to damage Hillary Clinton’s campaign has been blasted by one of the foremost election law experts, as it turned on a curious view that Mueller could not prove the value of the assistance Russians dangled in front of Trump Jr., and that a prosecution for solicitation of foreign election assistance raised “First Amendment concerns.”

Most important, Mueller’s decision not to also bring charges against Trump Jr. — a private citizen, not protected by any Justice Department policy against prosecution — for conspiring with WikiLeaks (either as a violation of campaign finance laws or other statutes) remains a mystery given the extensive evidence of direct interactions between Trump Jr. and the WikiLeaks team. It is this Mueller decision — which enabled Trump’s “no collusion” boast — that merits the greatest scrutiny in the days ahead.

In sum, Mueller has served our country well for decades and deserves respect. But he might not have met the full measure of his duty in this latest assignment. If Congress allows his report to be the last word about accountability for the president and his people, it will fail its duty as well.

I fully agree with Klain’s analysis. Mueller’s investigation was deeply disappointing, but it may have been due to the actions of others at DOJ, which Mueller is unlikely to disclose in his testimony.

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