Donald Trump and William Barr have already moved through the phases of post-report grief: 1) There’s no problem with Robert Mueller testifying before Congress; 2) there is no reason that Mueller should appear before Congress; 3) Mueller shouldn’t have to put up with questions from Congress; 4) the DOJ will help Mueller get out of testifying to Congress. Considering that Barr has already put out the order for Mueller’s lieutenants to stay away from their previously arranged appearances to provide their own testimony, it seems all too possible that in the next few days the Department of Justice might move to step 5 by issuing an un-poena telling Mueller not to appear.
But at the moment, the former special counsel is set to appear one week from Wednesday, in back-to-back public appearances before the House Judiciary and Intelligence committees. Whatever that means.
Just as the Mueller report itself is divided into two parts, the testimony could fall along two broad lines. The Judiciary Committee under Jerry Nadler can be expected to deal with the legal aspects of the report, with a stronger focus on the obstruction, Trump’s actions regarding the investigation, and how Barr handled the release of the special counsel’s work. The Intelligence Committee, chaired by Adam Schiff, is more likely to focus on the counterintelligence aspects of the report, including information that’s not in the report on how Russia was able to conduct a multipronged attack on an American election.
Beyond that … no one really knows how this is going to go. Despite his claims to be unwilling to say anything not already found in the pages of the report, Mueller already demonstrated in a brief farewell appearance at the DOJ that there are enough bombshells in the report—a report that’s been read by just 3% of the public—that his testimony can make an abrupt impact on the subject of impeachment. The testimony on July 17 could be absolutely riveting … or drier than Melba toast left on a diner counter in Reno. No matter what Mueller says, he will be asked about items not contained in the report. Items such as his instructions from Rod Rosenstein. Items such as how he came by his interpretation of the DOJ rules on indicting a sitting executive. Items such as his response to Barr’s three-page “summary.”
And Mueller might also have to respond to another line of questioning that he’s not expecting—namely, “How did you not find a criminal conspiracy when the evidence is so obvious?”
At CNN, the “Mueller Day” clocks are ticking, and media sources are debating just how much impact Mueller’s appearance will have. Considering how poorly most Americans understand the contents of the report, as opposed to what they’ve been told is in the report, just having the chance to get Mueller to emphasize the parts of the report he finds most important could be genuinely compelling.
On the other hand, these will be congressional hearings. That means that, like all such hearings, they’ll be broken up into tiny five-minute segments, with Republicans using their time to divert Mueller along the lines of what Peter Strzok ate for lunch or why he hasn’t checked out Hillary Clinton’s Spotify playlist. And, should anyone elicit a moment of high drama, it can expected to be smashed by loud calls for a “point of order” that are anything but orderly.
Still, if Mueller’s opening statement is as powerful and concise in stating the contents of the report as was his short appearance at the DOJ, enough Americans might hang around to create a stir. Otherwise, it’s likely the media will run with 10,000 variants of “nothing new here” come Thursday morning.
But over at the Daily Beast, writer Jed Shugerman has some questions that need to go on list in case Mueller insists on turning his appearance into repetitions of “Read my report.” The primary question being, “How did you manage to screw this up so badly?”
According to Shugerman, Mueller made “a significant legal error.” The facts in the report were more than enough to indict members of the campaign for criminal conspiracy. That’s particularly true of Rick Gates and Paul Manafort, who could not have done more to cooperate with Russia if they tried. And they did.
At the heart of the screwup appears to be the definition of “coordination.” Mueller took that term and defined it in the most restrictive way, narrowing it down to a tightly defined subset of criminal conspiracy. However, that’s not how Congress has defined the term in laws specifically relating to campaign finance and practice. A 2002 campaign finance bill notes that, when it come to campaigns, it “shall not require agreement or formal collaboration to establish coordination.” FEC regulations follow the same course, saying that “Coordinated means made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate.”
Nothing in campaign law seems to require the kind of formal agreement that Mueller set as the bottom line. So why did he set that line?
Because there really was cooperation. There really was coordination. There really was collusion. Lots of it. And someone, maybe even several someones, should ask Mueller why, when he was asked to look into cooperation by the Trump campaign, he wrote himself a definition of cooperation that can’t be found in campaign law.