Mueller Could Be the Downfall of the Mueller Hearing

Unless the creek rises (again), Special Counsel Robert Mueller will spend a portion of tomorrow testifying before two House committees regarding his investigation into Trump campaign dealings with Russian operatives, and into Trump administration obstruction of that investigation.

Judiciary Chairman Rep. Jerry Nadler and Intelligence Chairman Rep. Adam Schiff have set the table for Mr. Mueller after a one-week delay to carve out more time for his testimony. The Judiciary committee hearing is expected to begin at 8:30 am Eastern and last for three hours; the Intelligence committee hearing will follow at noon and last for two hours.

Chairman Nadler set the bar about as high as it can go during an appearance with Chris Wallace on Fox News Sunday. “The report presents very substantial evidence that the president is guilty of high crimes and misdemeanors,” he said, “and we have to present, or let Mueller present those facts to the American people and then see where we go from there because the administration must be held accountable and no president can be above the law.”

The road to this moment has not been smooth. The two years before the redacted Mueller report was released were a protracted exercise in radio silence from the special counsel’s office, leading to almost 1,000 days of breathless conjecture by the news media. Mueller made it abundantly clear, after the release of his report and again during a nine-minute press conference that sent Donald Trump into a weekend-long tailspin of rancor and spite, that he would prefer trying to breathe in outer space over testifying voluntarily before Congress.

House Democrats attempted to fill the giant whistling void left by Mueller’s absent testimony to little avail. They read portions of the report into the congressional record on May 19, and called Watergate fixture John Dean in to testify on June 10 about how bad presidential obstruction is. This, to the astonishment of none, accomplished very little. After a glacial age that saw public interest in all things Mueller begin to slip, Schiff and Nadler finally got off the dime and, on June 25, dropped a pair of subpoenas on the reluctant special counsel.

And here we are, a month less a day later. Amid the ongoing catastrophe of concentration camps at the border, the maelstrom of Trump’s tactical racism, his disturbing ties to accused sex-trafficker Jeffrey Epstein, and the steadily growing noise of the 2020 presidential election, Robert Mueller will sit down before Congress to do his standard Sam-the-Muppet-Show-Eagle routine, and it all may wind up being a colossal waste of time. Chairman Nadler, apparently aware of such a risk, told Wallace during his Sunday appearance on Fox News, “We hope it won’t end up being a dud.”

Nadler has reasons for concern, as do we all. Two major problems bedevil these twin-bill hearings from the jump, the first being the format. As it stands, each committee member, in order of seniority, will get five minutes to question Mueller. The questioners will switch from Democrat to Republican to Democrat — on down the line. If history is any guide, this deliberately choppy format may well turn the hearings into a scattershot affair filled with Democratic grandstanding and Republican distraction.

There are a number of solutions to this dilemma that fall within the rules of the House. The chairmen could reorder the format to have all the Democrats ask their questions back to back, followed by all the Republicans going back to back afterward. Democratic members could yield their time to one or two members who are the most versed in the material. They could all yield their time to a knowledgeable committee staffer, who would ask all the questions bereft of any career-based need to be on TV. They could have the committee’s counsel ask the questions for the same reason.

If any of these solutions are undertaken by the committee chairmen, the hearings tomorrow stand a far better chance of fulfilling the role they were designed for: an effective search for the truth. Absent these corrections, it is all too likely the hearings will devolve into yet another high-ratings, low-substance shouting match carved into undercooked five-minute cutlets.

The other major problem, of course, is Robert Mueller himself. A great many people have spent the last two years building the special counsel up as an almost messianic figure, who will fly over the White House on a winged chariot and char Donald Trump to ashes with righteous fire from his incendiary eyes, and will do so any day now. Well, tomorrow is that day, and those looking for ocular pyrotechnics from the former FBI director can probably count on being at least partially disappointed.

We can never lose sight of the fact that Robert Mueller is, was and will ever be a Republican bureaucrat. I do not believe he relishes the role of being damage-doer-in-chief to the party he has called home for a lifetime. I believe Mueller legitimately thinks the Justice Department cannot indict a sitting president, and concluded his report on that exact note. I believe his misplaced desire to remain above the political fray, like a wristwatch flywheel that doesn’t think it should be involved in telling time, will make him a difficult witness to pin down, especially in the splintered five-minutes-back-and-forth hearing format.

On Monday, the Justice Department instructed Mueller not to answer a broad array of questions regarding his investigation. These instructions, which came by letter from Associate Deputy Attorney General Bradley Weinsheimer, were not entirely without merit. Mueller was asked not to discuss material that had been redacted from his report, and to avoid discussion of any un-charged third parties. These are both thoroughly reasonable requests that Mueller almost certainly would have fulfilled by rote without being asked.

The slippery part of the letter began with an instruction to avoid discussing “potentially privileged matters,” an intentionally vague placeholder statement which can be loosely defined as “Watch it there, big guy.” With this statement, the Department of Justice — meaning the White House — is declaring preemptive privilege over any material that might tend to make Trump yell at his television.

Whether such a declaration would stand up in court is a question for another day; including such a nebulous, all-encompassing warning in the letter reveals how nervous the administration is about what Mueller might have to say, even if he stays within the bounds of the public contents of the report, which he has vowed to do.

Despite all this last-minute posturing, I believe Mueller probably knows in his bones that Donald Trump is as crooked as a dog’s hind leg. I believe he knows a hell of a lot more than he was allowed to include in the report. If his Sam-the-Eagle act is actual old-style patriotism and not merely a convenient front, I believe he is as disgusted by Trump as any progressive in the land. Tomorrow, he has an opportunity to share that disgust while staying entirely within the lines. After all, there is quite a lot of terrible stuff in the public version of his report. The special counsel does not need to get inventive to make a significant dent in Trump’s tarnished armor.

The questions will matter. The format will matter a very great deal. Robert Mueller will matter the most. Tomorrow, the finger of fate will be upon him and the world will be watching. Even if he stays within the parameters of the public report, which I expect he will, he can telegraph his distaste for the serial obstruction he witnessed and make a significant impact. Television is powerful that way: The televised Watergate hearings moved public approval for Richard Nixon’s impeachment from 19 percent at the beginning to 57 percent by the end.

Those hearings lasted more than a month. The Mueller hearings are only a slice of tomorrow. Fix the format, chairmen. Do what you should, Mr. Mueller. If those two things happen, tomorrow will be a day for the books. If they don’t, Donald Trump will be the happiest man in the District, again, to the lasting detriment of us all.

UPDATE, per The Washington Post, 6:15 pm Eastern time:

Former special counsel Robert S. Mueller III’s longtime aide will appear beside him during a much-anticipated hearing Wednesday, a last-minute request that caused a stir just hours before the high-profile congressional event.

House Judiciary Committee Democrats agreed to allow Aaron Zebley, a former top deputy to Mueller, to sit beside him and advise him in his answers. The accommodation came after Mueller asked that Zebley be allowed to testify as a witness next to him, a request Democrats rejected. Zebley was Mueller’s chief of staff when Mueller was FBI director, and he played largely the same role inside the special counsel’s office.

Republicans decried the move as an 11th hour trick, arguing Democrats would have had to announce another witness days ago under traditional procedures in the House. In a statement Tuesday afternoon, Rep. Douglas A. Collins (R-Ga.), the ranking member of the Judiciary Committee, accused the chairman, Rep. Jerrold Nadler (D-N.Y.), of “again allowing the committee’s business to devolve into chaos.”