In testimony before Congress, special counsel Robert S. Mueller III can shed much-needed light on the content of his report, the investigation that preceded and will flow from it, and the actions of Attorney General William P. Barr. Rather than engage in the normal scattershot questioning punctuated by speechifying, the House Judiciary Committee should assign its able attorney Norman Eisen to conduct the questioning. Members could then follow up with additional questions.
Here is an array of potential questions (aided by Benjamin Wittes’s must-read Lawfare blog summary):
Mr. Mueller, the attorney general said you did not find “collusion.” However, you did not look for collusion. Please explain what you looked for and how that differs from Barr’s assertion that you essentially cleared President Trump of collusion?
Did the Carter Page FISA warrant initiate the Russia investigation? Your report states that “a foreign government contacted the FBI about a May 2016 encounter with Trump Campaign foreign policy advisor George Papadopoulos.” Was that what precipitated the investigation?
You state that you have transferred 10 cases and made 14 referrals. Do these involve Russia? Do any involve the president?
You say the Trump campaign welcomed and expected to benefit from Russian meddling. Did the numerous contacts and the president’s public call to find Hillary Clinton’s emails encourage that meddling? Within a few hours of Trump’s call to find Clinton’s emails, Russian hacking efforts began. Can you conclude that there was a connection between the two?
The numerous contacts between Russian officials and surrogates and the campaign were unprecedented. Were the Russians trying to cultivate or manipulate the Trump team?
You did not find a basis for prosecution in the June 9 Trump Tower meeting because you did not find Donald Trump Jr. had the requisite intent. Is it fair to say he intended to seek help from a foreign hostile power but was so ignorant of the law that prosecution would be difficult? To your knowledge, has any campaign ever sought the help of a hostile foreign power?
You established that no criminal conspiracy between the Trump team and the Russian government occurred. Did you rule out such a conspiracy between Roger Stone or other Trump associates and WikiLeaks? Is that a matter of ongoing investigation?
The president and numerous associates claimed there was no contact between the Russians and the campaign. Was that a lie?
The campaign had been advised of Russian efforts to interfere with the campaign. Did anyone from the Trump campaign contact the FBI to report any of the Russian contacts? Had they done so, would the FBI have investigated?
When the president says the report shows “no collusion,” is that accurate?
Did you reject Barr’s concept that a president acting under Article II powers can’t be found to have obstructed justice?
You state that, “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.” Because you did not “so state,” is it correct that there is evidence of obstruction of justice? Can you describe the level of evidence (e.g., beyond a reasonable doubt)?
Have you prosecuted cases with less evidence of obstruction than what you found in this case?
Is it correct that, because an Office of Legal Counsel guideline prohibits prosecution of a sitting president, the judgment as to what action, if any, should be taken is up to Congress? If the OLC guideline were not present, would you have reached a decision on indictment? You cannot tell us what that would have been, but would indictment after Trump leaves office be justified?
Did you in any way invite or call upon Barr to “make the call” on indictment? He is bound by the same OLC guideline as you are, correct? Was it appropriate for him to insert himself when the OLC expressly says this is Congress’s job.
Does the report serve as a referral to Congress to consider impeachment?
Why is obstruction such a serious crime?
The president swears to “take care” that the laws are faithfully executed. Did the sitting president do so with regard to the investigation of the Russia situation? Would interfering with an investigation of this importance violate his oath?
Did the president fully cooperate with the investigation? Is refusing to sit for an interview the action of someone fully cooperating? Are firing the FBI director, attempting to influence witnesses, lying to the public, writing an inaccurate account of the Trump Tower meeting and other actions detailed in your report consistent with “full cooperation”? If not, why did Barr say they were?
Was Barr’s letter an accurate representation of your work? Did you express your concerns to him? Did he reply to them?
The report states that “many of the President’s acts directed at witnesses, including discouragement of cooperation with the government and suggestions of possible future pardons, occurred in public view.” Can that still be actionable? If such actions occurred secretly, would there be any doubt they were criminal? As a matter of law, there is no difference between telling someone privately not to cooperate with authorities and telling someone publicly, correct?
Of the 10 episodes you describe in the obstruction of justice section, you look at actions to obstruct the investigation, evidence of corrupt intent and a connection to an ongoing proceeding. Lawfare blog notes that, “in six of these episodes, the special counsel’s office suggests that all of the elements of obstruction are satisfied: Trump’s conduct regarding the investigation into Michael Flynn, his firing of Comey, his efforts to remove Mueller and then to curtail Mueller’s investigation, his campaign to have Sessions take back control over the investigation and an order he gave to White House Counsel Don McGahn to both lie to the press about Trump’s past attempt to fire Mueller and create a false record ‘for our files.’” Is that correct?
“In the cases of Comey’s firing, Trump’s effort to fire Mueller and then push McGahn to lie about it, and Trump’s effort to curtail the scope of the investigation, [you describe] ‘substantial’ evidence that Trump intended to obstruct justice.” Is that correct?