Below is my column in the Hill on the upcoming (and long-delayed) appearance of Robert Mueller, former Special Counsel, before Congress. It will be interesting to watch if Democratic members protect Mueller from having to address some of the glaring contradictions and problems in his report. However, in case there is a modicum of interest in delving into such areas by either party, here are 20 questions that I would ask Robert Mueller.
Here is the column:
The “American Sphinx” will be called to Congress on July 17 to provide answers to our most intriguing questions. Special counsel Robert Muellerspoke only briefly about his Trump-Russia report on May 29 and made clear that he was appointed to ask, not to answer, questions. He said “the report is my testimony” and added: “I hope and expect this will be the only time I speak to you in this manner.”
Sphinxes, of course, are not accustomed to answering questions. And speaking to a sphinx is a precarious practice since, according to mythology, you would be devoured if you got her answers wrong. Of course, Mueller may be aware that, when a sphinx is outsmarted, it is the end of the sphinx. In mythology, the Sphinx threw herself from a great height.
When Mueller ascends Capitol Hill, the question is whether he will take a pass or a header from that great height. If he sticks with his earlier position, he will do little but repeat findings from the report. If, however, Congress truly wants to question this sphinx, here are 20 questions to ask. Most concern the process or the law that should not be subject to any privilege or confidentiality claims as a basis for refusing to answer.
1. When exactly did you determine that no collusion occurred between Donald Trump or his team and the Russian government or other Russian interests either before or immediately after the 2016 presidential election?
2. You met with President Trump after he fired FBI director James Comey. He has said the meeting was an interview for your possible appointment as Comey’s successor. Presumably, Comey’s firing and its basis were discussed. Did Trump explain his reasons to you?
3. Given that you were one of the first outside individuals to meet with Trump on Comey’s firing, didn’t that create a conflict for you as a fact witness in any later investigation? Did you seek an ethics opinion on that alleged conflict?
4. Deputy Attorney General Rod Rosenstein also was involved in the decision-making on Comey’s firing, including his memorandum detailing Comey’s violations. Did you seek to interview Rosenstein and, as a result, did you raise the obvious conflict of interest in Rosenstein overseeing the investigation?
5. You met with Rosenstein and Attorney General William Barr weeks before your report’s release. Both reportedly told you to identify all grand jury material to allow for the report’s expedited release. Why didn’t you do so?
6. Do you agree that neither you nor the attorney general can release grand jury or “Rule 6(e)” material to the public or to Congress?
7. You have said you do not question that Barr and his staff acted in good faith in the redactions made to the report. Did your staff participate and agree with the 8 percent redactions made to the public report?
8. After the report’s release, you wrote to Barr, asking for the public release of long summary sections. However, these sections had not been cleared for release by career Justice staff who were redacting grand jury and confidential material. Could Barr simply release such sections without such a review? Didn’t some of those sections ultimately include redacted material and, thus, would have been improperly released?
9. Your report references the policy of the Justice Department’s Office of Legal Counsel (OLC) against the indictment of a sitting president. However, the underlying OLC memos do not say anything about finding criminal conduct in a special counsel report, correct?
10. Isn’t it true that Barr and Rosenstein, your supervisors, encouraged you to reach a conclusion on both crimes related to obstruction or collusion?
11. If you were concerned about your interpretation of the OLC memos, why didn’t you follow the standard approach of requesting an opinion from the OLC during the two years of your investigation?
12. Likewise, if there was disagreement on the scope of the obstruction provisions, why didn’t you request an OLC opinion on that issue?
13. Do you believe Barr and Rosenstein violated DOJ policy in reaching a conclusion on obstruction and, if not, why didn’t you follow their requests and reach such a conclusion yourself?
14. You found no evidence that would support a criminal charge related to collusion or conspiracy with the Russians by Trump. Isn’t it true that you found no such evidence by any Trump campaign official or family member to justify an indictment or criminal referral?
15. Your report spends 14 pages discussing the Trump Tower meeting on June 9, 2016. You did not find that the mere meeting with Russians to hear promised evidence of criminal conduct by Hillary Clinton constituted a crime, correct? And you were not limited in any way from indicting Donald Trump Jr. or the other participants in that meeting, correct?
16. In your report, you quote a voicemail message from November 2017 from Trump’s attorney, John Dowd, to counsel for former national security adviser Michael Flynn, saying that “we need some kind of heads up. Um, just for the sake of protecting all our interests if we can … .” However, you deleted the rest of the line where Dowd says “without you having to give up any … confidential information.” That obviously is material to what he was asking and left a more sinister impression of the call. Why did you cut out the exculpatory language?
17. Attorney General Barr has said that, while you may have an alternative view of the scope of obstruction, you found evidence of various non-criminal motivations and not clear “corrupt intent.” Is that correct?
18. You describe the testimony of former White House Counsel Don McGahn that he believed Trump ordered him to fire you. However, you do not quote what McGahn precisely said were Trump’s words. Did he testify that Trump directly told him to fire you, or did he say Trump wanted him to raise your alleged conflicts with Rosenstein? Is it a crime for a president to raise a conflict of interest of a special counsel with the attorney general or his designate?
19. If there was evidence that Trump demanded the termination of the investigation, as opposed to the possible selection of a new special counsel, you would have included it in your report, correct?
20. You state that “if we had confidence after a thorough investigation of the facts that the president clearly did not commit obstruction of justice, we would so state.” Yet, you also claim it would be inappropriate to accuse Trump of criminal acts, since he would not be able to defend himself in a trial. Don’t you do precisely that, with this statement? And, by not reaching a conclusion, don’t you deny Trump the ability to respond to specific findings of the elements of a crime?
It is unlikely that Mueller will answer most, if any, of these questions. He has a curious interpretation of what a special counsel does. Everyone in the White House, Congress, his supervisors at Justice expected him to reach a conclusion. He spent two years and never told a soul outside of his staff that he would reach a conclusion on crimes related to collusion but not on obstruction.
Well, it’s time for some clarity. We know the answers to many of these questions, but we need Mueller to establish that record. He is much like Oscar Wilde’s description of a character as someone who “had a passion for secrecy, but she herself was merely a Sphinx without a secret.”
Jonathan Turley is the Shapiro Public of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.