The Russia Connection

How Congress Should Think About Mueller’s Testimony

By Quinta Jurecic
Tuesday, July 9, 2019, 9:00 AM

On July 17, Robert Mueller will testify publicly before Congress for the first time since June 2013, when he appeared before the Senate Intelligence Committee in his role as FBI director. Democratic members of Congress have framed Mueller’s testimony as a final act of public service following his resignation as special counsel. “[I]t’s his duty to the American people,” said House Judiciary Committee Chairman Jerry Nadler. “I think it’s a question of duty to the country,” said Nadler’s Judiciary Committee colleague Rep. David Cicilline. And House Intelligence Committee Chairman Adam Schiff argued, “Mueller has one more service to provide … duty calls once more.”

This is a familiar story: Mueller, like Cincinnatus, reluctantly returns from retirement to come to the aid of his country. But it’s the wrong way to think about the former special counsel’s testimony. As Benjamin Wittes put it after Mueller’s May 29 press conference closing out the investigation: “Mueller himself is not riding in on a white horse to explain it all. If Congress is going to highlight what’s in that report and what Mueller found, it’s going to have to do it on its own.” Though Wittes was writing when it looked like Mueller might not testify, the same is true now. To put it another way, the weight of duty isn’t on Mueller’s shoulders but, rather, on those of Congress—and Congress needs to think systematically about what it wants to get out of the former special counsel’s testimony and how that goal fits into its broader agenda in the wake of the Russia investigation.

Mueller has made clear that he views his own work as finished. “I’m resigning from the Department of Justice to return to private life,” he announced at his press conference. He went out of his way to dissuade Congress from soliciting his testimony, adding, “[B]eyond what I’ve said here today and what is contained in our written work, I do not believe it is appropriate for me to speak further about the investigation or to comment on the actions of the Justice Department or Congress.” In the weeks afterward, according to the New York Times, Mueller “was so averse to being pulled into the political arena that he never spoke directly with lawmakers or their aides” during the negotiations that ultimately led to a subpoena for his testimony, communicating instead through an intermediary.

The Mueller report and Mueller’s public comments suggest that he understands his role in the story to be complete in part because the remainder of the responsibility lies with Congress. Mueller’s choice to foreclose a charging decision with respect to the president reflects his vision for the limited purview of the special counsel under the existing regulations. After noting the 2000 Office of Legal Counsel (OLC) opinion prohibiting indictment of a sitting president, the report goes on to state that “a federal criminal accusation against a sitting President would … potentially preempt constitutional processes for addressing presidential misconduct,” pointing to the constitutional clauses concerning impeachment and the OLC opinion’s discussion of the “relationship between impeachment and criminal prosecution of a sitting president.” Together with Mueller’s assertion during his press conference that “the report is my testimony,” the implication is that Mueller has done all he can as a prosecutor under the existing regime governing investigations of the president. Whether or not Mueller was right to construe his role in this way, he has laid down the baton, and it is now for Congress to decide whether to pick it up.

With this in mind, it is safe to say that Mueller is not going to make a dramatic statement. He is not going to reveal new bombshells that substantially change the political landscape. And if congressional Democrats are hoping that his testimony will single-handedly shift public opinion away from the president and in favor of impeachment, Mueller on his own is not going to make that happen.

Instead, whatever happens on July 17 will be up to Congress as an independent branch of government—acting of its own accord, rather than following Mueller’s lead. For members of Congress who intend to use this time to seriously engage in the process of oversight—as opposed to getting a dramatic sound bite or quizzing Mueller on unsubstantiated theories about the president’s guilt or innocence—this has several implications for how best to approach the hearings.

First, there is no smoking gun to be uncovered. Mueller has gone out of his way to state this explicitly: “[T]he work speaks for itself,” he said of the report, continuing that “I would not provide information beyond that which is already public in any appearance before Congress.” Members of the House Judiciary and Intelligence committees may convince themselves that they are capable of teasing a bombshell revelation out of Mueller that substantially changes the political landscape. But however quick members are on their feet and however good their staff work is, this is just not going to happen. All the information that Congress has to work with is already on the table—and has been since the report was released.

The good news is that this means Congress already has everything it needs to do its homework. Members need to be conversant in the details of the report themselves, rather than waiting for Mueller to guide them through it. This is not going to be a situation in which a charismatic witness will carry the weight of the hearings on his or her own.

This also means that members should stick as closely as possible to the text of the report. Here, I’m echoing Wittes, who has made this point separately. There is little to be gained in asking Mueller to speculate on things that might have happened but that he was unable to definitively establish; he has made it clear that he is not interested in going down that path. The same is true of his legal analysis: While it may be tempting to ask Mueller whether he might have indicted the president in the absence of the OLC memo, he is unlikely to publicly muse on how he and his team could have behaved in different factual or legal circumstances.

This also means not chastising Mueller for the decisions he made, regardless of what members think of the way he handled the investigation. The special counsel has faced criticism on a range of subjects: Bob Bauer and Rick Hasen have argued that Mueller was too cautious in his decision to hold off on campaign finance charges concerning the June 2016 Trump Tower meeting; some observers, including Paul Rosenzweig, argue that Mueller took an artificially constrained view of what constitutes an “agreement” under conspiracy law. Mueller has taken the most flack for his analysis of potential obstruction of justice and his solution to the puzzle of how to deal with a president who may have committed chargeable offenses but who is shielded from prosecution while in office. On Lawfare, Jack Goldsmith and Josh Blackman have argued that Mueller’s application of the obstruction statutes to presidential conduct facially authorized by Article II is deeply flawed. Attorney General William Barr has suggested Mueller should have simply ceased his investigation when he decided he would not bring an indictment against the president, while others have argued that Mueller should have been more aggressive in either stating his belief that the president did commit a crime (if that was the office’s conclusion) or bucking the OLC memo and publicly bringing charges.

There are serious questions here about the functioning of the existing system of presidential oversight and whether Mueller was correct in how he interpreted the scope of his role. But the July 17 testimony is not the time to berate Mueller over his interpretation of the regulations and the OLC memo. For Congress to focus on the absence of a criminal prosecution of the president—or even on the possibility of a hypothetical future prosecution, which Mueller also hints at—is for it to zero in on the mechanics of oversight of the executive branch from within the executive branch, instead of considering the legislature’s own capacity for interbranch oversight. Whether or not Mueller approached his own responsibilities as special counsel appropriately, Congress has its own responsibilities to consider as an independent branch of government. Take it from Speaker of the House Nancy Pelosi: “Members of Congress must honor our oath and our patriotic duty to follow the facts, so we can protect our democracy."

So what does it mean to “follow the facts”? On one level, Congress will be performing a valuable service if it can simply highlight the report’s findings to a public that has not had the opportunity to fully grapple with the contents of a 448-page document—whether by walking Mueller through a careful line of questioning, or by simply asking him to read through sections of the report out loud. The more challenging task for Congress, though, is to use the hearings to begin the process of forming opinions and judgments about what to do with the material Mueller has provided. One way to tackle this would be to use Mueller’s testimony as a means of identifying other issues and witnesses for future hearings—like Trump confidante Corey Lewandowski, who was witness to significant acts of potential obstruction by the president and over whose testimony the White House has no plausible claim of executive privilege.

Congress has spent much of its time since the release of the Mueller report in a reactive position, waiting for others to take the lead. First, House Democrats announced they wanted to wait until the release of the report before evaluating how to shape their oversight efforts against the president and whether to begin an impeachment inquiry. Then, once the Justice Department provided the report, House leadership dithered over what to do with the material Mueller provided, while the president’s allies in both the House and the Senate moved toward calls to investigate the investigators. Many prominent Democrats, most notably Pelosi herself, have argued that the House should not begin impeachment proceedings until polling shows majority support for such an effort—which is just another way of hoping that some other body, in this case the public, will tell Congress what to do next.

Throughout the Trump administration, a common refrain of onlookers has been, in the language of the internet, “lol nothing matters.” Mueller’s testimony might matter—but only if members of Congress are thoughtful about what they want to get out of the hearings and realistic about what they can reasonably accomplish. No one else is going to do the work for them.