When Robert Mueller steps into a Capitol Hill hearing room Wednesday, he’ll carry with him the power to hobble Donald Trump’s presidency — and Democrats will be straining to ensure that he does while Republicans look to wound his credibility.
But if Mueller’s public posture is any indication, he’s going to work just as hard to deprive either party of substantive political ammunition.
Mueller has foreshadowed, in limited public comments from a spokesman, a tightly scripted hearing on the findings contained in his 448-page report, which chronicled dozens of contacts between the Trump campaign and Russia, as well as 10 potential instances of obstruction of justice by Trump. Mueller himself has said he prefers to let the report be “my testimony” and didn’t even agree to testify until he was subpoenaed in June by two House committees.
Underscoring the challenge for lawmakers, the Justice Department told Mueller on Monday that his testimony “must remain within the boundaries of your public report” because Trump made a broad assertion of executive privilege over the evidence underpinning the report.
But Mueller also decided at the last minute to tap a top deputy to sit alongside him during his appearance, a move that came despite the Justice Department's opposition to Mueller's deputies participating in the hearings, suggesting Mueller isn't necessarily planning to adhere to every directive coming from the administration.
Still, the likelihood that Mueller will abide by DOJ limitations will present an obstacle for Democrats seeking answers to questions about Mueller’s legal theories and the deliberative process surrounding his investigation.
His refusal to answer those types of questions is also likely to prevent Republicans from gleaning meaningful answers from Mueller about the composition of his investigative team, which some GOP lawmakers have said was biased against Trump from the beginning.And it will present an even greater challenge for Democrats already girding to impeach Trump, who have been counting on Mueller’s appearance to energize their effort and inspire dozens of fence-sitting colleagues to join them even as Speaker Nancy Pelosi has been steadfast in her resistance to the effort.
Mueller’s report on the Trump campaign’s contacts with Russia included a 200-page volume chronicling Trump’s repeated efforts to thwart his investigation. He documented 10 episodes of potential obstruction of justice by Trump, describing in detail the president’s persistent efforts to derail Mueller’s work and constrain the scope of his probe.
But Mueller noted at the outset that he faced significant constraints on his ability to investigate Trump — chief among them a longstanding Justice Department policy that prohibits the criminal indictment of a sitting president.
Mueller said the existence of this policy led him to determine early on that he would not decide whether to formally allege that Trump committed a crime. Mueller also revealed that Trump refused to submit to an interview about obstruction allegations, but the special counsel’s team decided not to issue a subpoena to compel the president’s testimony.
Mueller’s report paints a damning portrait of Trump’s behavior in the weeks and months after the special counsel was appointed. In each of the 10 episodes he cataloged, Mueller pointed to the three elements of obstruction of justice charges and determined that Trump met all three in several instances. His analysis led hundreds of former prosecutors to issue a letter declaring that Trump would have been charged with obstruction were he not the president.
Mueller’s evidence focused primarily on his efforts to sideline the Russia investigation. For example, Trump asked his former White House Counsel Don McGahn to remove Mueller and then create a false record denying that it happened, the investigation found. Mueller’s team also found that Trump attempted to enlist his former campaign manager Corey Lewandowski to pressure former Attorney General Jeff Sessions to curb the investigation.
In both cases, Trump sought others’ assistance to carry out his wishes, and in both cases, his aides told Mueller they refused to comply with those directives.
Mueller also found that Trump’s actions toward several witnesses — including former campaign chairman Paul Manafort, former national security adviser Michael Flynn and former personal lawyer Michael Cohen — may have amounted to obstruction. He pointed to Trump’s public statements decrying treatment of Flynn and Manafort as unfair, while disparaging members of Cohen’s family and accusing his father-in-law of potential crimes.
When the Intelligence Committee grills Mueller Wednesday afternoon, Democrats intend to focus on Trump’s welcoming of Russian help in the election — from his overt suggestion that they obtain Hillary Clinton’s emails to revelations unearthed by Mueller about the campaign’s media strategy built around WikiLeaks’ dump of hacked Democratic emails.
Democrats also intend to press Mueller on areas he didn’t pursue. Mueller revealed that he was repeatedly blocked from pulling certain investigative threads because witnesses used encrypted communications, deleted messages or claimed their communications were lost. Others, Mueller said, exercised their Fifth Amendment rights not to testify.
Trump himself refused to submit to an in-person interview and only submitted written responses on questions related to his campaign’s contacts with Russia. Mueller ultimately opted against subpoenaing the president, and his son Donald Trump Jr. was also not interviewed, despite his role as a central figure in a 2016 meeting between senior campaign staffers and a lawyer with ties to the Russian government.
Article originally published on POLITICO Magazine