Here’s the key fact about special counsel Robert Mueller’s appearances before two congressional committees on Wednesday: Most Americans haven’t read his report. They will be hearing for the first time what he knows about the Trump campaign’s involvement in Russian election interference with the 2016 presidential election. And they will be hearing for the first time about obstruction by Trump and others to prevent Mueller from knowing even more.
Until now, the heads of America’s body politic have been filled with Trump’s false sound bites: “No Collusion, No Obstruction, Total Exoneration.” Mueller’s appearances are the Democrats’ chance — perhaps their final chance — to replace those lies with facts and truth.
Early Signs Of Winners And Losers: Keeping It Simple
For Democrats, success will take the form of a simple, coherent story. That requires a narrative outlining nothing more than what Mueller’s report already says. And no legal jargon.
After Mueller sought guidance from the Justice Department, the deputy attorney general’s office told him to “remain within the boundaries” of his public report and May 29 statement. That’s fine. Mueller need go no farther to produce the story that Democrats should be seeking to convey anyway.
For Republicans, success means muddying the waters and encouraging Mueller’s silence in response to Democrats’ questions. If Democrats grandstand with sound bites for use in their 2020 re-election campaign ads, they will be helping Trump and the GOP in that mission.
Look For Competing Narratives: Collusion
The House Judiciary Committee will spend three hours quizzing Mueller on obstruction. Then the House Intelligence Committee will tackle his conclusions on Russian interference. But look for the Judiciary Committee to set the stage briefly with some context before diving into Mueller’s findings on obstruction. That requires asking Mueller to read a few pertinent passages from his report:
- Russia engaged in a “sweeping and systematic” operation to help Trump win the 2016 election;
- “[T]he Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome”; and
- “[T]he Campaign expected that it would benefit electorally from information stolen and released through Russian efforts.” [Vol. I, pp. 1-2]
Democrats can then neutralize Trump’s “No Collusion” lie by juxtaposing it against Mueller’s report. He made no such a finding. In fact, he didn’t even consider “collusion” because, as a legal concept, the term relates only to antitrust law.
The format of alternating questioning periods between Democratic and Republican committee members provides Trump’s congressional allies with an opportunity to intersperse distractions. Look for them to pull out shiny objects relating to the origins of the Russia investigation, FISA warrants, text messages between Peter Strzok and Lisa Page, and alleged political bias by members of Mueller’s team. None of that affects the evidence that Mueller, a lifelong Republican, found or the conclusions that he reported. But that’s all the GOP has, so they will go with it.
Look For Competing Narratives: Obstruction
The Judiciary Committee’s main narrative should include a series of questions that encourage Mueller to explain why obstruction matters to federal investigators, as he did in his May 29, 2019 press appearance:
“When a subject of an investigation obstructs that investigation or lies to investigators, it strikes at the core of their government’s effort to find the truth and hold wrongdoers accountable.”
Committee members should then ask Mueller these questions:
Must an attempt to obstruct justice succeed to be illegal? Mueller’s report already says no. He can read that passage aloud. [Vol. II, pp. 11-12]
Does obstruction require an underlying crime that the perpetrator is trying to obstruct? Again, Mueller’s report already says no. He can read that too. [Vol. II, p. 157]
Did Mueller find attempts to obstruct the government’s effort to find the truth in connection with Russian election interference? His report already provides the answer, and the Democrats apparently plan to focus on this sample:
- Trump’s direction to the former White House counsel Don McGahn to fire Mueller and then publicly lie about it;
- Trump’s request that Corey Lewandowski, his former campaign chief, ask Attorney General Jeff Sessions to reassert control of the investigation and limit its scope; and
- Possible witness tampering to discourage two aides, Paul Manafort and Michael Cohen, from cooperating with investigators. For example, Trump dangled a pardon in front of former campaign manager Paul Manafort. Thereafter, Manafort changed his story and breached an agreement to cooperate with the government. [Vol. II, pp. 127-128]
For each episode, look for Democrats to develop a simple narrative by asking Mueller to quote from the various witness statements in his report. Democrats can then neutralize Trump’s “No Obstruction” lie by asking Mueller if, in fact, he had made such a finding. He didn’t. The natural follow-up similarly disposes of Trump’s “Total Exoneration” lie. For both, Mueller can conclude by reading aloud this passage:
“[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment.”
And then this one:
“Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.” [Vol. 2, p. 2]
Then It’s On To The House Intelligence Committee
Look for the Democrats on the House Intelligence Committee to revisit the larger themes:
- Russia interfered in the 2016 election and wanted Trump to win. Mueller should be asked to explain Russia’s “systematic and sweeping” operation. If will be difficult to get him talking, but on this subject he might be willing to do so and they should try.
- The Trump campaign embraced Russia’s help. Mueller should describe his evidence that the campaign welcomed Russian assistance.
- There were numerous links between the Trump campaign and Russia. That requires Mueller to name names and their positions in the campaign, all of which are in the report.
The narrative could also dovetail with obstruction. In addition to the major episodes that the Judiciary Committee is expected to cover, the following specific items could provide additional color:
- Trump refused to let Mueller interview him and limited the scope of written questions to “certain Russia-related topics.” [Vol. II, p. C-1]
- After receiving Trump’s written responses, Mueller told Trump’s lawyers that the answers were insufficient in several respects. On 30 occasions, Trump said he did not “recall or remember” or have an “independent recollection” of the information Mueller requested. [Vol. I, p. C-1]
- When Mueller followed-up, seeking an “in-person interview, limited to certain topics,” Trump refused. [Vol. II, pp. C-1-2]
- Donald Trump Jr. refused to let Mueller interview him on any subject, including the June 9, 2016 Trump Tower meeting with Russians promising “dirt” on Hillary Clinton. [Vol. I, p. 117]
- Individuals associated with the Trump campaign “lied to investigators about Campaign contacts with Russia and have taken other actions to interfere with the investigation.” [Vol. I, p. 191]
- As former national security adviser Mike Flynn faced criminal investigation, Trump’s attorneys conveyed to his attorneys Trump’s continuing support. [Vol. II, pp. 120-122]. Trump is still fueling speculation that he’ll pardon Flynn, and Flynn’s formerly cooperative relationship with the government pursuant to his guilty plea deal has deteriorated.
- Trump advisers Steve Bannon and Erik Prince exchanged dozens of text messages about a Jan. 11, 2017 meeting in the Seychelles involving Russians, but those messages mysteriously disappeared. (Vol. I, p. 156)
Above All: Listen To Mueller
Mueller is reportedly planning to give an opening statement. If he reiterates the themes of his report and May 29 statement, he will be sending this message to Congress and the American people: He found evidence of wrongdoing, but his conspiracy investigation crashed into Trump’s wall of obstruction. What Mueller refers to as the constitutional process for moving forward lies with the House of Representatives, not him or Attorney General William Barr.
Listen for that message, and ignore the distractions that Trump’s congressional defenders offer along the way.
This post contains opinion and analysis.
Steven J. Harper is a regular contributor to News & Guts and the creator/curator of the Trump-Russia Timeline. He’s an attorney, adjunct professor at Northwestern University Law School, and author of several books, including Crossing Hoffa — A Teamster’s Story and The Lawyer Bubble — A Profession in Crisis. He blogs at The Belly of the Beast. Follow him on Twitter (@StevenJHarper1).