Published by The Lawfare Institute
in Cooperation With
Here’s a puzzle: Imagine that you are a member of Congress who, under rules seemingly designed to preclude effective questioning, had exactly five minutes to interview Robert Mueller on national television. What would you ask him?
Let’s make the puzzle more difficult by adding to it some other known elements of reality. Mueller does not want to testify at all and has said pretty clearly that he will not go beyond the four corners of his report in doing so: “[T]he report is my testimony. I would not provide information beyond that which is already public in any appearance before Congress.” Mueller is also likely to be grumpy when you question him. And who can blame him? You would be grumpy too if you were being subjected to hours of unwanted hectoring by your colleagues, many of whom are not very bright, will not have done their homework, and will want to yell at the man and ask him things that would be wildly inappropriate for him to answer.
But you are that rare thing: a diligent member of Congress who wants to use your time with Mueller to bring out important findings and nuances of the Mueller report. What do you do?
Here are a few principles for questioning Mueller under these circumstances, along with a set of questions I would ask him if I were a member of Congress:
First, you get to develop only one point. Design your questions to bring out one—and only one—major idea. If you try for more, you will deliver less.
Second, ask him only yes-or-no questions. You don’t have a lot of time. Use it to build up to the point you want to make. Ask short, crisp questions that require short, crisp answers that allow you to move on to the next question.
Third, stay within the four corners of the report. If you ask Mueller for evidence he did not include, he will not give it: He has been very clear that he does not intend to share additional information beyond what is set out in the report. If you ask him for interpretations he did not offer when he had the chance to write more than 400 pages of his interpretations, he will decline. If you ask him about his interactions with Attorney General William Barr, he will likely demur. By contrast, the closer you hew to asking him to read his own words, the likelier he is to cooperate. The trick is to use questions in this latter form to develop a single bigger idea over the course of a short stretch of time.
Fourth, ask him questions to which you know the answer. This is not an investigative hearing. It is an exercise in political and legal theater, and you are trying to provide a compelling elucidation of Mueller’s work and findings. Ask only questions you know he can answer and whose answers you know will reasonably contribute to the thread you are developing.
What might this look like in practice? Here’s one example. Reading this sequence of questions aloud and allowing time for Mueller’s yes-or-no answers, it clocks in at right around five minutes:
- You write that your “investigation did not identify evidence that any U.S. persons knowingly and intentionally coordinated with the IRA’s [Internet Research Agency’s] interference operations.” Is it fair for me to read that as saying you developed no evidence implicating the president in crimes related to the Russian social media campaign during the 2016 election?
- Your findings with respect to the Russian hacking and dissemination of Democratic emails are more complicated. But is it fair to say that you did not find evidence that anyone associated with the Trump campaign, including the president himself, participated in the Russian hacking operations themselves?
- With respect to possible conspiracy charges, you write something very different: that the investigation “did not establish that the contacts” between the campaign and the Russians “amounted to an agreement to commit any substantive violation of federal criminal law.” You also write that you “did not establish any agreement among Campaign officials—or between such officials and Russia-linked individuals—to interfere with or obstruct a lawful function of a government agency during the campaign or transition period.” The language “did not establish” implies to me something different from language like “did not identify evidence”; it implies to me that you did identify evidence to one degree or another, just not evidence sufficient to bring a criminal case. Is that a fair reading?
- So, in other words, when the evidence you found truly exonerates the president, the report says that clearly, and when the evidence you found is insufficient to prosecute, the report says that clearly too. Is that correct?
- With respect to obstruction of justice, you use different language still. You write, “[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.” But, you write, “[W]e are unable to reach that judgment” in the face of “difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.” Given that you elsewhere use language like “did not identify evidence” with respect to the IRA social media operations and “did not establish” with respect to conspiracy, is it fair for me to read your report as saying that the evidence you developed on obstruction, in contrast to your earlier conclusions, was strong enough that a finding of criminality was genuinely possible?
- Is it fair for me to read your statement that “if we had confidence ... that the President clearly did not commit obstruction of justice, we would so state” as meaning that it would have been improper for you to render a “traditional prosecutorial judgment” on whether President Trump had violated the obstruction statutes precisely because it was possible that he had done so?
- You write that one factor in your decision not to evaluate this evidence is that “we recognize that a federal criminal accusation against a sitting President would place burdens on the President’s capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct.” Am I correct that the constitutional process you are referring to here is the impeachment power?
- Yet you did not reach any conclusions as to whether President Trump committed impeachable offenses. Is that right?
- So it’s reasonable for me to conclude that you were deferring to Congress on the question of whether the facts your report describes do or do not constitute impeachable offenses?
- You also write that the investigation was appropriate to conduct, notwithstanding the fact that the president is not amenable to criminal indictment while in office because the Justice Department recognizes that “a President does not have immunity after he leaves office.” In fact, you say explicitly that “we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.” Is it fair for me to read this as deferring to future federal prosecutors the question of whether the president’s conduct described in your report constitutes criminal offenses?
- So, to summarize, I take your report to state that you found substantial evidence of presidential obstruction of justice, which you chose not to analyze, because you were deferring to Congress on questions of impeachment and to federal prosecutors after President Trump leaves office on questions of criminality. Is that a fair reading?