With Robert S. Mueller III set to appear before Congress on Wednesday, the Justice Department is trying to constrain Mueller’s testimony. In a new letter, the department just warned the former special counsel not to “go beyond” what’s in his report.
Whether intentional or not, this directive serves to pre-frame the hearings, potentially in a manner that politically benefits President Trump.
It sets up the core question as this: Will Mueller go outside the four corners of what’s in his report, or will he remain inside them?
But Mueller doesn’t have to “go beyond” his report for his testimony to be very damaging to Trump. What’s in his report is already deeply devastating.
Trump himself has sought to frame Mueller’s testimony this way. He and his aides keep robotically repeating that Democrats want a “do over” of the Mueller probe, thus pushing the idea — which Trump just tweeted — that the report didn’t produce any damning revelations.
The obvious game here is to frame the hearings as leaving Democrats with only the last ditch hope of prodding Mueller into revealing new information — and to spin any failure to make that happen as a fizzle for Democrats and a victory for Trump.
In reality, if Democrats can simply bring to life what Mueller did document — and convey that to a national audience — that alone will be a real victory, and an important public service.
What might that look like? Former FBI director James B. Comey has suggested asking direct questions designed to get Mueller to reiterate his findings.
In this scenario, Mueller would state clearly that Trump and his advisers eagerly expected to gain from a massive foreign attack on our political system designed to elect Trump. That Trump World repeatedly sought to coordinate with those efforts, in the full knowledge of who was behind them. That Trump secretly pursued a lucrative real estate deal with Kremlin involvement while voters picked the GOP nominee. That Trump and his advisers repeatedly lied to cover all of this up.
On obstruction, Mueller would also state clearly that Trump ordered his White House counsel to fire Mueller, then pushed him to actively cover that up. That Trump tried to get his former campaign chair to not cooperate with the investigation. That Trump ordered a top campaign official to tell his then-attorney general to severely restrict the probe. That Trump demanded Comey’s loyalty and urged him to go easy on his national security adviser, before firing Comey after that loyalty wasn’t forthcoming.
In multiple of those cases, Mueller’s report does in fact establish the corrupt motive necessary to support a criminal obstruction-of-justice charge, which Mueller stated he did not bring due to Justice Department regulations. This fact set is inside the four corners of the report.
An opening for Mueller
There has been a lot of debate over whether Democrats can get Mueller to state explicitly that Trump would have been criminally charged, absent those regulations. That would indeed go beyond the report.
As Neal Katyal points out, Attorney General William P. Barr provided Mueller the opening to answer this question. Barr recently claimed that the Justice Department regulation did not preclude him from declaring his opinion that Trump committed criminal obstruction, even absent charges.
As Katyal notes, this means Mueller must be asked two questions:
“First, when you were serving as special counsel, 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.”
It’s worth pausing here to survey Barr’s overall conduct. Now that the Justice Department has told Mueller not to step outside the report, that suggestion from Barr — that Mueller could have offered his opinion on criminality — looks worse.
Barr’s bottomless cynicism
Barr made that claim to further minimize Mueller’s findings, by suggesting Mueller chose not to explicitly declare Trump’s conduct criminal, even though he could have, implying Mueller didn’t see criminality.
Now the Justice Department is constraining Mueller, which could mean Mueller refuses to shed light both on his views on Trump’s criminality and on whether Barr actually had granted Mueller the liberty to declare them.
Nothing constrains Mueller from answering those questions. But he probably won’t. His report states that he didn’t offer an explicit “judgment” on Trump’s criminality because, absent formal charges, Trump would not be able to defend himself.
This sense of fairness will likely lead Mueller not to answer this question again. This is something Barr is perversely exploiting — and Trump is perversely benefiting from.
There’s an additional perversity here.
It would be big if Mueller did state explicitly whether he believed Trump committed crimes. But one smells a setup here. If Mueller does not answer — out of an abundance of fairness to Trump — the savvy media take will be that Democrats failed to get Mueller off his script.
But that framing will itself tilt the field in Trump’s favor, by downgrading the seriousness of what we already know, which — again — is that Mueller did establish multiple acts of obstruction that were undertaken with corrupt intent.
If Democrats can get Mueller to repeat this basic fact set, that itself could be powerful.
Beyond this, the multiple obstructive acts on which Mueller is less clear about corrupt motive also constitute deeply serious misconduct, especially because Trump was trying to impede a reckoning into an attack on our political system.
This fact set, too, is all there, inside the four corners of the report.
As Brian Beutler notes, many in the press fell for Barr’s initial falsification of Mueller’s findings, which ceded the field to Trump’s massive disinformation apparatus. That very well may happen again.
The best antidote to this is to operate from the premise that the known facts are already deeply damning and to get them out there as vividly as possible.