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Mueller and House Democrats at impasse over how much of his testimony would be public

Special counsel Robert S. Mueller III departs St. John’s Episcopal Church in Washington in March. (Cliff Owen/AP)

Robert S. Mueller III and House Democrats have been unable to reach an agreement on how much of the special counsel’s expected congressional testimony would be public, and how much would take place in private, according to people familiar with the matter.

The special counsel’s office, along with senior Justice Department officials, has been quietly negotiating with the House Judiciary Committee, whose chairman, Rep. Jerrold Nadler (D-N.Y.), has been eager to have Mueller testify as soon as possible.

Who is driving the dispute is a source of debate. Two people familiar with the matter said the Justice Department is deferring to Mueller, who would like for any discussions beyond the public contents of his report to be conducted in private. But another person said it is primarily the department, rather than Mueller himself, resisting a nationally televised hearing.

These people spoke on the condition of anonymity because of the sensitivity surrounding Mueller’s report and anticipated testimony.

Democrats want to press the special counsel publicly about a host of issues, including whether he thought President Trump could or should be charged with obstruction if he were not the president, and whether Mueller agreed with Attorney General William P. Barr’s handling of the investigation’s findings.

Mueller complained that Barr did not capture ‘context’ of Trump probe

The attorney general released a lightly redacted version of Mueller’s 448-page report a month ago, and ever since Democrats have been pushing for Mueller to testify. The report says Mueller’s team did not find Trump or his associates conspired with the Kremlin to influence the 2016 election. But Mueller notably declined to reach a conclusion on whether Trump had sought to obstruct justice — noting only that, in some cases, there was “substantial” evidence of it, and that he could not “exonerate” the president.

Barr, meanwhile, said he and then-Deputy Attorney General Rod J. Rosenstein had assessed the case and determined the evidence would not have substantiated an obstruction prosecution.

Lawmakers have heard Barr’s detailed account of how he reached that conclusion, but how Mueller came to believe he could not decide is more of a mystery. In the report, Mueller’s team wrote that it was influenced by a Justice Department Office of Legal Counsel opinion that says a sitting president cannot be indicted, combined with concerns about the fairness of accusing someone of a crime — even privately — who could not face trial.

Barr has said that in a private meeting with Mueller in early March, the special counsel made clear “he was not saying but for the OLC opinion he would have found a crime.”

Trump would have been charged with obstruction were he not president, hundreds of former federal prosecutors assert

Hundreds of former prosecutors have opined that Trump would have been charged with obstruction, based on the case Mueller detailed, were he not president. Democrats likely hope Mueller might say as much himself if pressed to testify. But if Mueller felt a private allegation was unfair, it seems unlikely he would be willing to publicly accuse the president of a crime at a congressional hearing.

Democrats, too, want to press Mueller about a letter he sent to Barr after his report was complete — but before it had been made public — accusing the attorney general of not fully capturing “the context, nature, and substance” of his work in a letter he sent to lawmakers. Barr’s letter purported to capture Mueller’s principal conclusions that the special counsel did not conclude Trump conspired with Russia and did not reach a decision on obstruction.

“There is now public confusion about critical aspects of the results of our investigation,” Mueller wrote to Barr. “This threatens to undermine a central purpose for which the Department appointed the Special Counsel: to assure full public confidence in the outcome of investigations.”

Barr has said he felt the letter was “a bit snitty,” and he called the special counsel after receiving it. By Barr’s account, Mueller said in that call that “his concern was not the accuracy of the statement of the findings in my letter, but that he wanted more out there to provide additional context to explain his reasoning and why he didn’t reach a decision on obstruction.” It is unclear, though, whether Mueller agrees with that characterization.