Former special counsel Robert Mueller's scheduled hearings before the House Intelligence and Judiciary committees on Wednesday should be among the most important moments of the Trump presidency—the rare, and perhaps only, chance to question the man who has spent two years investigating and uncovering the various attempts of Donald Trump and others to corrupt and circumvent American democracy.
Let’s be clear about what Mueller found. His work uncovered two separate criminal conspiracies that benefited the surprise election of Donald Trump. The first was allegedly led by Trump himself alongside his lawyer Michael Cohen, to cover up damaging stories about himself through federal felony campaign finance violations; the second, which Mueller literally charged as a “conspiracy against the United States” was led by the Russian government and involved a variety of pro-Trump, anti-Clinton information operations, advanced through identity fraud, computer hacking felonies, and other crimes. There is ample—even overwhelming—evidence that Trump sought to obstruct the Russia investigation.
Both conspiracies represent attempts to thwart the democratic practice of free, open, and transparent elections.
It’s important that Democrats keep the focus of Wednesday's hearing on that core message, because GOP members have made clear they plan to muddy Mueller’s findings—and his reputation—by shouting a lot about Peter Strzok, Lisa Page, Christopher Steele, and other vague, conspiratorial allusions and theories that ultimately matter not at all to Mueller's central findings.
Robert Mueller will pose a challenge to even the Democrats on the panel: a friendly but uncooperative witness, more prone to silence and deflection than the verbosity of a James Comey. Many, including some of his former Justice Department colleagues, hope the former special counsel will break with tradition and be blunt.
As someone who has followed Mueller closely for a decade, written a book on his time at the FBI, and read or watched almost every minute of public testimony or statement he's given, I can tell you it's not a great bet to rest the fate of US democracy on an unambiguous statement from Robert Mueller—particularly on the obstruction issue. Instead, Democrats will need to structure their questioning carefully, which requires a thorough understanding of the man at the witness table. To help guide that thinking, I have outlined below a series of key principles to know, as well as various questions and areas of inquiry to ensure the maximum impact of his testimony.
Please note: This guide is designed for serious, thoughtful members of Congress interested in the rule of law and preventing foreign interference in the elections. That means Mark Meadows of North Carolina and Jim Jordan of Ohio, you can stop reading now.
The former special counsel is better at this than you are. Robert Mueller has been a prosecutor for more than 40 years, longer than all but one member of these committees has been in Congress. He spent decades questioning and cross-examining witnesses for a living, murder-boarded scores of cases with fellow prosecutors, and torn apart the intellectual weaknesses of countless “pros memos," the memos prosecutors write to justify charges. Aides at the FBI always described briefing him as if they were under cross-examination themselves. Given that Mueller has appeared before Congress more than 60 times, he’s almost certainly answered more questions from legislators than the members grilling him have ever asked themselves.
Mueller doesn’t care about what you care about. Aides at the FBI knew to never mention the word “legacy” around him. He’s not likely to be particularly concerned about how he comes across in the hearing, nor is he worried about the Twittersphere judging him or his report. Spending two years as special counsel—the central figure in the most watched, most anticipated investigation and political scandal in modern times—is, as I’ve previously noted, probably no more than the third hardest job Robert Mueller has ever had, after leading men in combat in Vietnam, and leading the FBI in the wake of 9/11.
He doesn’t play word games, and he’s already done your work. Don’t waste your brief time asking him hypotheticals. He doesn’t answer them, and you won’t trick him into saying something unintentional. He’s told you what he wants to say, so take him up on it. Use his own strength against him: Make him use his own words. Go ahead and phrase your question as the “gotcha” moment you want, but then ask him to read the relevant quotation from the report rather than give his extemporaneous opinion. Mueller has already given you 448 pages of damning, juicy, detail-rich, opinion-laden testimony for you to assemble a “choose-your-adventure” hearing.
His moral compass is the straightest in Washington. No matter what mud the Republicans might throw, there is no one in Washington less partisan than Mueller. In fact, reading his finished report, there’s an interesting question whether Mueller was too fair in his treatment of Trump, whether his adherence to the norms of the Justice Department and to the principles of the American justice system ultimately muddled the message—and whether it now will keep him from speaking as clearly as Democrats hope he would.
Mueller is not James Comey. The last two years have made clear how the two men, who appear on paper to be so similar, approach life very differently. Comey has inserted himself into not one but two highly dramatic, political earthquake-level congressional hearings, where he’s openly criticized two presidents. That style is anathema to Mueller, who avoids the spotlight at all costs, and makes Jack “Just the Facts” Webb from Dragnet look like an opinionated motormouth.
Don’t waste time with redactions or ongoing investigations. House Democrats have spent weeks—rightly—pushing to learn more about the roughly 12 percent of the Mueller report that’s redacted, and there are a dozen or so open investigations spun out of Mueller’s probe. Some of those redactions may indeed contain interesting information, and some of those mystery investigations may prove damaging to members of the president’s circle, but don’t waste time trying to pry details about either from Mueller. The unredacted portions of the report are damning enough. Focus on that.
Home in on Trump’s fitness as a leader. It’s not the collusion that’s the problem, it’s the corruption, from secretive business deals with the Kremlin and obstructing justice to failing to defend the US against Vladimir Putin's interference in US elections. From the campaign to the Oval Office, the Mueller report describes a man manifestly unfit for the presidency. As I wrote earlier, “[Mueller’s] two volumes paint a picture of Donald Trump as deeply narcissistic and incompetent, alternately conned and ignored by everyone around him.” Congress needs to dwell on that point. It is dangerous to leave this man in charge.
Questions and Answers
So how should Congress approach its questioning? Mueller has already made clear that he’s not going to go beyond the four corners of the report, which is fine. That should be the committee’s strength, not a weakness. By sticking close to the report, you can precisely predict his answers. Congress needs frame questions around having Mueller go over the report's most important passages out loud. Something like this exchange should be in the first round Democrats ask him:
Question: “Mr. Mueller, President Trump and his backers have summarized your report by saying that it was a ‘complete and total exoneration—no collusion, no obstruction.’ Your report actually concluded otherwise. Can you read your fourth point on page two of volume two?”
Mueller’s answer: “If we had confidence after a thorough investigation of the facts that the president clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the president’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the president committed a crime, it also does not exonerate him."
Ideal follow-up: “So you’re saying that this report would say so if you believed it exonerated the president—can you point me to the passage where the report exonerates him?”
Mueller’s answer (presumably): “There is no such passage. The report nowhere says it exonerates the president.”
You can imagine progressing through an entire hearing like that—handpicking the passages for Mueller to read aloud, building and advancing the narrative of his findings. Despite the finished report spending weeks on the best-seller lists—and also being free online to download—the number of Americans who have read the report remains a rounding error. In fact, most members of Congress appear not have read the report. Instead, the televised hearing will be the first chance most Americans have to hear what’s really in the report, right from the man who wrote it.
“If [Mueller] says what was in the report—and says it to the American people so they hear it—that will be very, very important,” Representative and House Judiciary Chair Jerrold Nadler of New York told reporters. “That will be important itself. Whether he goes farther than that, we’ll see.”
Assuming that he won’t go beyond the report, Democrats should focus on sharpening and highlighting Mueller’s points for him. On the obstruction question, for instance, frame the exchange like such:
Question: "Mr. Mueller, how does US criminal law define obstruction of justice and how did you define it in your investigation?"
Mueller’s answer (presumably something like): “As we outlined on volume II, page 9, according to US v. Silverman, obstruction of justice law ‘reaches all corrupt conduct capable of producing an effect that prevents justice from being duly administered, regardless of the means employed.’ Three basic elements are common to most of the relevant obstruction statutes: 1) an obstructive act; 2) a nexus between the obstructive act and an official proceeding; and 3) a corrupt intent. We also considered a more specific statute aimed at witness tampering, and described the requirements for attempted offenses and endeavors to obstruct justice."
Follow-up: “It seems clear from your report that President Trump at multiple points sought to block, stymie, or obfuscate your probe and the Russia investigation by the FBI. Could you share with the committee what you wrote as point A on page 157 of volume two?”
Mueller: “Our investigation found multiple acts by the president that were capable of exerting undue influence over law enforcement investigations, including the Russian-interference and obstruction investigations. The incidents were often carried out through one-on-one meetings in which the president sought to use his official power outside of usual channels. These actions ranged from efforts to remove the special counsel and to reverse the effect of the attorney general’s recusal; to the attempted use of official power to limit the scope of the investigation; to direct and indirect contacts with witnesses with the potential to influence their testimony. Viewing the acts collectively can help to illuminate their significance. For example, the president’s direction to [White House counsel Donald] McGahn to have the special counsel removed was followed almost immediately by his direction to Lewandowski to tell the attorney general to limit the scope of the Russia investigation to prospective election-interference only—a temporal connection that suggests that both acts were taken with a related purpose with respect to the investigation.”
Follow-up: “Wow, Mr. Mueller, thanks for sharing that—it certainly sounds to me like President Trump committed multiple acts of obstruction of justice, which Congress has twice before considered an impeachable offense. My understanding is that the criminal code treats attempted obstruction the same as successful obstruction, is that correct?”
And on and on. Ask Mueller about why the president's attempts to obstruct the investigation went nowhere (volume two, page 158, first paragraph). Ask him about Lewandowski's actions specifically, and whether in all his decades at Justice, had Mueller ever had a presidential political adviser, outside of government, give him orders. Ask him if it's at all appropriate to do so.
For the Russia question, head to volume one, page 10, where Mueller makes clear that he couldn't establish a conspiracy, not that one didn't exist. "The [special counsel's] office learned that some of the individuals we interviewed or whose conduct we investigated—including some associated with the Trump campaign—deleted relevant communications or communicated during the relevant period using applications that feature encryption or that do not provide for long-term retention of data or communications records," the report reads. "Accordingly, while this report embodies factual and legal determinations that the office believes to be accurate and complete to the greatest extent possible, given these identified gaps, the office cannot rule out the possibility that the unavailable information would shed additional light on (or cast in a new light) the events described in the report.”
Or there's the matter of Konstantin Kilimnik, Paul Manafort, and the polling data, which Mueller says he never really understood in volume one, page 130: “The office could not reliably determine Manafort’s purpose in sharing internal polling data with Kilimnik during the campaign period.” That handover is in many ways the single most suspicious act of the entire campaign—especially given how Mueller mentions that the exchange was “ongoing” rather than a stand-alone act. What on earth was in it for Manafort? As the judge overseeing the case made clear, this wasn’t some email link to the RealClearPolitics rolling poll average. It was detailed information, worthy only of someone with a deep knowledge of American polling and a deep understanding of how to operationalize it. The mystery remains: Does this polling data account for the unexpected targeting of the Internet Research Agency’s efforts on battleground states like Michigan and Wisconsin?
Both of these sets of questions—about the remaining puzzles of the case, and the missing pieces—get toward one of the biggest critical questions the Mueller report leaves any thorough reader with: Were the obstruction efforts successful in covering up further crimes, conspiracies, or misdeeds by the president, his campaign, or associates like Roger Stone and Wikileaks?
Outside the Four Corners
Beyond the strict interpretation of the report, though, there are some questions that I think are important to shed light on—although I doubt that Mueller would engage deeply or as bluntly on these topics as America needs him to:
What’s the difference, in his mind, between collusion and conspiracy? It seems that his report actually outlines a lot of collusion, but not a conspiracy, at least using the very narrow definition he choose to use.
Why didn’t he subpoena the president? Mueller seems to say that he didn’t subpoena Trump because he felt he already had all the evidence he needed. That's damning in and of itself; apparently the available evidence so convinced Mueller that the president obstructed justice, he never needed to ask the president himself.
Did Mueller screw up on the campaign finance side of his investigation? One of the most intriguing—and convincing—critiques of Mueller’s work was put together by Jed Shugerman, who says the special counsel frankly messed up in its interpretation of campaign finance law, in part because his team didn’t have true campaign finance experts on it. As Shugerman writes, “Mueller weakened anticorruption campaign law by validating First Amendment objections to some of the most basic provisions of campaign finance law—by creating, in effect, a loophole—and by also getting Congress’s statutes on campaign ‘coordination’ wrong, and then declining to call out the violations he actually found.” How would Mueller’s react to that, and what light would he shed, if any, on his decision-making? (Lawfare’s Quinta Jurecic has a good roundup of other serious critiques of Mueller’s work by thoughtful people if you’re interested—but again, keep the focus on Trump, not Mueller.)
Did Mueller intend Barr to “decide” on obstruction? I don’t know precisely how you word this to get past the basic fact Mueller won’t want to comment, but a letter Mueller wrote to Barr makes clear his unhappiness with how Barr took it upon himself to declare the president free of criminal charges. Maybe try the following: “Mr. Mueller, at any point in your written or verbal communication with the attorney general, did you ask Mr. Barr to decide the question of obstruction charges on your behalf?”
What else can he tell us about that letter, and what led him to write it? Something like: “In your four decades of DOJ experience, at every rung in the ladder, have you ever before protested a decision by the attorney general in writing?” The only known analogous condemnation from Mueller came in a fiery letter to the Scottish justice minister following the release of the sole prisoner fingered for the bombing of Pan Am 103.
Why did he decide to end the investigation when he did? Politico’s Natasha Bertrand has suggested this particularly good question. The more we learn about Mueller’s case, the more puzzling its wrap-up moment seems, especially given how the Roger Stone case is proceeding. Stone seems key to answering lingering questions about Trump’s knowledge and coordination with Wikileaks—a case itself that is turning more intriguing due to recent new reporting.
Regardless of the precise questions, Congress is likely to find Wednesday’s hearing both hugely important and deeply unsatisfying. Instead of the final act of Mueller’s investigation, the hearing is likely to feel like a strange interregnum, the in-between as Congress wrestles with how far and how long to press its own inquiries. Some big questions will surely emerge following Wednesday’s testimony that Congress needs to wrestle with itself—including foreign interference in US elections and how to rethink, if at all, the special counsel office for future investigations.
How Congress behaves Wednesday, and how it chooses to follow up, will be decided by Nadler and House Speaker Nancy Pelosi. It should be clear to both of them and to the American people that at this point Robert Mueller is not going to save Congress. Congress instead will have to choose whether it wants to stand up and defend America on its own.
Garrett M. Graff (@vermontgmg) is a contributing editor for WIRED and the author, among other works, of Mueller’s War, available on Scribd. His next book, The Only Plane in the Sky: An Oral History of 9/11, will be published in September. He can be reached at email@example.com.
Read more: https://www.wired.com/story/robert-mueller-testimony-congress-questions-trump-russia/