The Big Questions, and Curbed Expectations, Lawyers Have for Robert Mueller
Stuart Gerson, Neal Katyal, James Comey and many others are writing about the things they want Mueller to be asked—and answered—at Wednesday's hearings. Here's a snapshot.
July 23, 2019 at 01:17 PM
7 minute read
Robert Mueller's testimony Wednesday on Capitol Hill is sure to capture the nation. Mueller has said very little publicly about his two-year assignment investigating President Donald Trump and how Russia worked to benefit his 2016 presidential campaign. Now, he's in the klieg lights.
Still, Mueller is a reluctant witness, appearing not because he wants to—he said in May his 448-page report “speaks for itself”—but because House Democrats want to press him about how he arrived at certain conclusions, and what more he might want to say about Trump and his campaign's ties to Russia.
Trump has declared Mueller's report a “total exoneration,” and Democrats almost certainly will try to counter that assertion. Mueller didn't say whether he thinks Trump tried to obstruct the investigation, but the report also explicitly did not exonerate the president. Whether and how Mueller veers from his report—the expectation is that he will not—is consuming the echo chamber. “The report is my testimony,” Mueller said in May. “I would not provide information beyond that which is already public in any appearance before Congress.”
U.S. Justice Department leaders have warned Mueller to “remain within the boundaries of your public report because matters within the scope of your investigation were covered by executive privilege.” Mueller is expected to face questions about his engagement with U.S. Attorney General William Barr, who said the evidence gathered by the special counsel's team did not amount to obstruction of justice.
Here's a snapshot of some of the questions, and expectations, lawyers have about Wednesday's Mueller hearings in front of the House judiciary and intelligence committees.
>> Stuart Gerson of Epstein Becker Green and former Justice Department official: “More than 1,000 former federal prosecutors—that is, men and women who, unlike Barr, have actually tried and convicted federal criminal defendants—have publicly stated that the quality and quantity of the evidence of obstruction would have been legally sufficient to support an indictment. What does Mueller think? He has been an assistant United States attorney who has prosecuted serious crimes. He has been a distinguished director of the FBI. Did he and his staff conclude that if the person under investigation were someone other than the president, an indictment would have been in order?” [The Atlantic]
>> Neal Katyal, Hogan Lovells partner and former Obama-era acting U.S. solicitor general, presented three “simple yes-or-no questions” to Mueller, banking off Trump's disputed declaration that the report was a “total exoneration.” Katyal wrote: “First, did your report find there was no collusion? Second, did your report find there was no obstruction? Third, did your report give the president complete and total exoneration?” Katyal tacked on two more questions that explore the relationship between Barr and Mueller: “Did Mr. Barr ever tell you that you could reach a decision about Mr. Trump's criminality? Second, since Mr. Barr has now said that department policy allows you to reach a decision as to whether it was criminal activity, please do so.” [New York Times]
>> James Comey, former FBI director, presented more than a dozen questions that he said he would ask if he had five minutes of air time with Mueller. Like Katyal's questions, Comey presented interrogatories that can be answered with a yes or no. For instance: “Did you find substantial evidence that the president had committed obstruction of justice crimes?” And: “Did you find that the president wanted the White House counsel to write a false memo saying he had not been ordered to have the special counsel removed?” [Lawfare]
>> Donald Ayer, retired Jones Day partner and former Justice Department lawyer: “What about Mueller's stated reason, based on notions of fair play, for declining even to express a judgment about probable criminality by the president? There—and only there—Barr seems to have it right. A speculative opinion of the Office of Legal Counsel foreclosing indictment of the president, based on no explicit constitutional or statutory language, should not be expanded so as to prevent a special counsel from doing his job. Mueller should accept Barr's interpretation on this issue of departmental guidance, and give us the benefit of his professional judgment on the legal significance of the facts he has found.” [The Atlantic]
>> Joshua Geltzer, executive director of the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center; Ryan Goodman, New York University School of Law professor; and Asha Rangappa, senior lecturer at Yale's Jackson Institute for Global Affairs: Geltzer, Goodman and Rangappa present 46 questions (including from readers) that Congress should ask Mueller. Some of the questions included: “What is Congress' constitutional basis for investigating obstruction of justice by the president, and how would such an investigation be consistent with the separation of powers?” And: “If Congress wanted to determine for itself the strength of the case of obstruction or abuse of power, not necessarily according to criminal law standards of proof, who would be the most important potential witnesses for the public to hear from and for Congress to call on to testify?” [Just Security]
>> Michael Dorf, professor at Cornell Law School: “Tomorrow's scheduled appearance of Robert Mueller before Congress will be covered breathlessly by the media but will likely be unenlightening and unimportant. I base that assessment on the following: (1) Mueller has already made clear that he does not intend to say anything that's not in his report; (2) that rules out an answer to the one question to which his answer could possibly move the needle on public opinion—whether, absent the DOJ policy he followed barring indictment of a sitting president, Mueller would have concluded there was sufficient evidence to charge Trump with obstruction of justice.” [Dorf on Law]
>> Andrew Napolitano, former New Jersey state judge: “It's hard to believe that Bob Mueller would tell us something new. We have the 444-page report, which is like a prior statement. We have his 10-minute statement, which surprised everybody, that he made in the Justice Department before he resigned. Now we're going to have his introductory statement. The more statements you make the more opportunities those who are cross-examine you have to see if there are inconsistencies between what you said before and what you say now.” [Fox News]
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