Members of the House Judiciary and Intelligence Committees are going to have a unique opportunity on Wednesday. Former special counsel Robert Mueller is going to appear, speak to the findings of the investigation into connections between the Trump campaign and Russia, and leave. It’s unlikely that he will appear again, and unlikely that any other testimony will receive such focused attention from the media.
Which makes the Wednesday hearings both an opportunity—and a huge challenge. Here are a few things to keep in mind, in terms of both topics and tactics.
Conspiracy: The temptation is going to be to jump straight into the obstruction end of the report, because there are so many instances in it where Trump’s criminal activity is so cut and dried. But do not overlook the conspiracy section. If anything, it demands more time. Ask about those connections. Ask about the Trump Tower meeting. Ask about Manafort handing over data to the Russians. Ask about the eagerness with which the Trump campaign greeted every potential contact. And most of all: Ask Mueller why he chose to use such a limited definition of conspiracy. Multiple court rulings have demonstrated that, precisely in the case of campaign law, you can’t expect anyone to be making formal or semi-formal tit-for-tat agreements when looking for conspiracy. But Mueller seems to have acted as if that’s exactly what is required. Why did Mueller apply a standard for conspiracy that is not found in the law surrounding campaign violations?
Obstruction: Attempts to get Mueller to respond to questions along the lines of “If not for the DOJ guideline against indicting a sitting executive, would you have ...” are going to go nowhere. They’re going nowhere for two reasons: First, Mueller is not going to “speculate”; and second, Mueller has already made it clear that he’s following a version of that guidelines so strict that he can’t even throw shade at Donald Trump. For the same reason, any question that involves “If someone else had done it” is almost certain to go nowhere. Don’t waste your time. This is a good place to simply make Mueller repeat the evidence. Ask him which one of the actions he finds the most egregious.
Instructions: One thing that’s not in the Mueller report is the instructions for writing the Mueller report. And we know there were some. During the Manafort case, we got part of a letter from Rod Rosenstein to Mueller defining what he could and could not investigate, but most of that letter was redacted, and that letter is not in the report. Rosenstein specifically authorized Mueller to look into Manafort’s business dealings for instances of money laundering and bank fraud. Did he also have that authority when it came to the Trump organization? Trump has repeatedly said that if he had done anything wrong in his taxes or bank applications, Mueller would have caught it. So ask him: Did the special counsel’s office look at Trump’s financial documents for potential violations?
What Mueller did not investigate is a one of the most important pieces of information that Democrats can legitimately expect to gain from this hearing.
Barr’s actions: We know that Mueller wrote a letter to Barr after the attorney general issued his three-page “summary” of the investigation. In his final appearance at the DOJ, Mueller seemed to give at least a slight wave toward Barr’s explanation that the special counsel was upset over press coverage. But that’s certainly not how it sounded in the letter. Ask Mueller about Barr. Ask him about that letter. Ask him about how Barr’s team worked with his on redactions. Ask him his opinion on whether Barr was right to extend executive privilege to a report on an investigation into the executive for potential criminal activity.
Those DOJ guidelines—Mueller hasn’t just followed those guidelines; he’s done so with a rigor that even Barr claims is surprising. So … why? In his DOJ speech, Mueller suggested that he knew from the beginning that this investigation would never end with the indictment of Trump, because he understood those instructions from the outset. That generates two questions that really demand to be asked: Did someone ever make it a point to remind Mueller of these guidelines? And, if he knew there could be no indictment, why conduct the investigation? Done well, the answer to this last one can be a shot straight into the “He didn’t find anything” heart of the “case closed” Republicans.
Above all, don’t fail to get the basic questions out there, and out there early.
- Did you find contacts between the Trump campaign and individuals with ties to the Russian government?
- Did senior Trump campaign officials respond favorably to news that Russian officials had information that could be harmful to the campaign of Hillary Clinton?
- Did senior Trump campaign officials meet with individuals connected to the Russian government for the purposes of obtaining information that could be damaging to the campaign of Hillary Clinton?
- Did agents of the Russian government steal information from the campaign of Hillary Clinton and make parts of this information available for the purposes of helping the campaign of Donald Trump?
- Did individuals connected with the Trump campaign help to coordinate the release of information stolen by the Russians?
- Despite his public statements, did Donald Trump continue negotiations with the intent of undertaking a large real estate project in Moscow during the campaign period?
- Was Donald Trump aware that an attorney in his employ was making payments expressly for the purpose of suppressing the stories of two women, payments that were in violation of campaign law?
- Did Donald Trump instruct his attorney on how to make those payments?
And this may all seem obvious, but here’s some tactical advice to tattoo inside your eyelids.
- Don’t talk about yourself. This appearance may be a great moment on the national stage. It may have more reach than any campaign commercial you can hope to run in 2020. That doesn’t make it the right time to talk about yourself. The temptation will be huge, but don’t. That includes any story about your spouse, kids, cousins, friends, hometown folks, or personal heroes. Just don’t. This is going to be hard; your time is going to be very short. Your question can be asked without preceding it with a folksy intro.
- Don’t get off track. Republicans are going to ask about everything but Donald Trump’s campaign and its hundreds of ties to Russian officials. They’re going to make outrageous statements, statements in the form of outright lies, about how the investigation started, about the character of the investigators, and about everything else they can think of. Do not follow them down this path. They’re going to demean Mueller, the committee, and its members. Don’t try to correct them. Don’t ask Mueller to correct them. Get on with your business.
- Plan this out in advance. You know who the Republicans are. Take note that this isn’t a court hearing and you are not witnesses. You are allowed to talk, scheme, divide up questions, plan responses, and coordinate all you want. If you get up there and stumble around the same opening questions again and again, it’s going to be frustrating and ineffective. Make it a point to get some of those big questions in early, so you can hit them in a different way if Mueller won’t answer, and expand on his answers if he does.
- Don’t be afraid to cut Mueller off. Yes, he’s a respected official and his testimony is the point. That doesn’t mean he gets to spend all your time rambling on about side issues or addressing some perceived slight. Cut. Him. Off. And get him back on track. Seconds count.
- Pay attention to the things Mueller won’t answer. There’s no point in asking over and over if Mueller would indict Trump if he was not sitting in the White House. He won’t answer that. On all these topics, ask him once, and make sure you have a potentially fruitful new approach to the question before you ask again. Every single time that Mueller responds that he can’t answer something, you lose.
- Pay attention to the things that he does answer. Will he talk about the process of creating the report? Will he respond to questions about Barr? Will he give his opinion on the DOJ letter aimed at constraining his testimony? If he will, keep feeling out these areas for something new. If not, don’t keep returning to a dry well.
- If worst comes to worst, make him repeat the evidence. If Mueller really won’t talk about anything but the contents of the already public report, make him do that. Make him be the one who describes the worst incidents of both obstruction and conspiracy. This is the one area where repetition is not a bad thing.
- Say Russia. This investigation was into ties between the Trump campaign and individuals connected to the Russian government. When asking questions, be sure to emphasize that Trump’s team was talking to Russian officials, exchanging emails with Russian oligarchs, eliciting promises from Russian individuals, sharing information with Russian agents. Channel your inner Jan Brady and think, Russia, Russia, Russia.
- Don’t try to be Perry Mason. Or Columbo. Or Sherlock Holmes. Or … whoever. There’s no case to crack here, no great “Aha!” moment to be had. Nothing in this hearing is likely to appear in some future All The President’s Men II complete with dramatic music. You already know 90% of what Mueller knows. Try to get the other 10% (his reaction to Barr, his instructions from Rosenstein, why he defined conspiracy so strictly, why he followed the guideline on indictment so rigidly) and then concentrate on the grind of getting the evidence that’s already in the report on the record.
Because honestly, even just doing that last thing—getting Mueller to state the biggest points of his own report—is going to be a challenge, considering the time constraints, the structure of the hearings, and the efforts by the DOJ to clamp down his testimony.