The biggest surprise of Robert Mueller’s testimony on Capitol Hill on Wednesday will be if it contains any surprises at all. The former special counsel will appear before the House Judiciary Committee for three hours in the morning and then move over to the House Intelligence Committee. In all, sixty-three lawmakers will have the opportunity to question him, and there’s no telling what some of them may ask. But we already have a good idea of what Mueller is going to say, because he has told us.
“There has been discussion about an appearance before Congress,” Mueller said, on May 29th, when he appeared at the Justice Department and read a prepared statement. “Any testimony from this office would not go beyond our report. It contains our findings and analysis and the reasons for the decisions we made. We chose those words carefully, and the work speaks for itself. And the report is my testimony. I would not provide information beyond that which is already public in any appearance before Congress.”
Mueller, who has now retired as special counsel, only agreed to testify after he was issued a subpoena. On Monday, Mueller reiterated through a spokesman his intention to stay within the bounds of his report. According to NBC News, the spokesman also said that Mueller will ask to submit the report, which stretches to four hundred and forty-eight pages, as his official statement for the record.
All this doesn’t necessarily mean that the hearings will be duds. As I noted back in April, when the Justice Department released a redacted version of the report, Volume 2 of the Mueller report contained “voluminous evidence that the President repeatedly tried to hamper, and even close down, the Russia investigation,” including ordering Don McGahn, who was then the White House counsel, to fire Mueller, and subsequently asking McGahn to falsify the record to make it look like he never issued such an order. And while Mueller concluded in Volume 1 of the report that he didn’t find enough evidence to charge anybody connected to the Trump campaign with conspiring with Russia to influence the 2016 election, that volume also contained a great deal of damaging material. For instance, it detailed how Michael Cohen and other members of the Trump Organization pursued plans to build a Trump Tower in Moscow deep into the election campaign, briefing Trump on numerous occasions about their progress. All this while Trump was maintaining—at the time and ever since—that he had no business with Russia.
In forcing Mueller to testify, the Democrats’ goal was to focus public attention on these findings and others, which Attorney General, William Barr, overshadowed in his selective and misleading representation of the report’s contents. “We want Robert Mueller to bring it to life,” Adam Schiff, the head of the Intelligence Committee, said, on CBS News’s “Face the Nation.” To this end, Democrats will ask Mueller to read out key parts of the report and characterize them. Citing a hypothetical example, Jerry Nadler, the head of the Judiciary Committee, told Fox News’s Chris Wallace, “Look at page 344, paragraph two, please read it. Does that describe obstruction of justice, and did you find that the President did that?”
While some of the report is written in the dry language of legal briefs, there are a number of passages that would seem to lend themselves to being recited on television. Take this one, from page seventy-eight of the report’s second volume:
Or this passage, from page hundred and seventeen of Volume 2:
In our televisual culture, where a single exchange in a Presidential debate can change a candidate’s prospects overnight, it is hard to predict what the impact will be of having a stiff-backed pillar of rectitude like Mueller reading out passages like these. And, even allowing for the former special counsel’s apparent determination to avoid straying beyond the language contained in the report, there is always the possibility of some unscripted drama, especially if, as expected during the six hours of testimony, the Republican members of the committees press Mueller about the origins of his investigation.
But what we won’t get from Mueller, it is safe to assume, is a straightforward answer to the fundamental question he dodged in his report: Did the President’s behavior detailed in Volume 2 satisfy a prosecutor’s definition of obstruction?
In his report, you will recall, Mueller said that he decided not to reach a prosecutorial judgement, and he pointed to a 2000 memorandum from the Department of Justice’s Office of Legal Opinion that criminal charges cannot be brought against a sitting President. The report also said “a federal criminal accusation against a sitting President would . . . potentially preempt constitutional processes for addressing presidential misconduct”—an apparent reference to impeachment. Unfortunately, however, Mueller’s argument was shrouded in legalese. This allowed elected Republicans and Fox News hosts to ignore it and parrot Trump’s propaganda line: “No collusion, no obstruction.” Judging by the lack of support for impeachment, this strategy of obfuscation has worked. According to the latest NBC News/Wall Street Journal poll, just twenty-one per cent of Americans support starting impeachment hearings now.
In this, ostensibly his last public act, Mueller could theoretically cast aside his constricted view of a special counsel’s role and state the truth of the matter in plain English. At considerable cost to the taxpayer, his team uncovered a good deal of prima-facie evidence of criminality, and it is the constitutional duty of Congress to pursue the matter, because nobody, not even the President, is above the law. Mueller could say something like this. Given the menacing threat that Trump represents, he should say it. But will he? Don’t hold your breath.
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