Democrats want to know what Trump did. Forcing Mueller to testify isn't the answer.

The public has questions about the evidence compiled by the special counsel. But questioning Mueller right now would devolve into an unproductive circus.
Image: Robert Mueller
Then-special counsel Robert Mueller speaks about the Russia investigation at the Department of Justice in Washington on May 29, 2019.Carolyn Kaster / AP file
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By Glenn Kirschner, former assistant U.S. attorney for the District of Columbia and NBC/MSNBC legal analyst

At the end of May, then-special counsel Robert Mueller gave what he said would be his final statement regarding his investigation of coordination between the Trump campaign and Russia in the run-up to the 2016 presidential election. Of keen and curious interest to many, however, is the fact that Mueller declined to render an opinion or conclusion on whether Trump committed the crime of obstruction of justice. Thus, Democrats in Congress remain divided on the question of whether Mueller should be compelled in some way to testify further.

The best way to determine what Trump did or didn’t do is not to ask the person who conducted the investigation.

While understandable, this route is not, in fact, the most effective way to get to the truth. The best way to determine what Trump did or didn’t do is not to ask the person who conducted the investigation; it’s to ask the witnesses who can testify to their firsthand observations of Trump’s conduct and statements.

In congressional hearings, like criminal trials, witnesses are called to testify, placed under oath and then questioned, ostensibly to develop facts of consequence to the issue being investigated. Now let’s look at some of the principles applicable to criminal trials in an effort to assess the wisdom, propriety and efficacy of having Mueller testify before Congress.

Ordinarily, prosecutors do not testify about the investigations they conduct or the prosecutorial decisions they take. Indeed, every day in courtrooms around the country, judges instruct juries that the words of the prosecutor, as well as the words of the defense attorney, are not evidence. The evidence comes from the mouths of the witnesses.

So what happens if we apply this principle to a congressional hearing? As but one example, the Mueller report documents an incident in which Trump told then-White House counsel Don McGahn to fire Mueller. McGahn, sensing that this could be viewed as obstructing the Russia probe, refused. Thereafter, Trump told McGahn to lie about the fact that Trump had ordered him to fire Mueller. Again, McGahn refused.

Neither Congress nor the American people need to hear Mueller testify that McGahn told him that the president told him to lie. Such testimony would be diluted, double-hearsay. Instead, this inarguably damning information about presidential misconduct needs to come straight from the horse’s mouth. McGahn needs to provide a firsthand account of Trump’s tone and demeanor when the president urged him to fire Mueller, what words Trump used when he told McGahn to then lie about that request, how Trump reacted when McGahn told him he would not lie for him, etc.

This inarguably damning information about presidential misconduct needs to come right from the horse’s mouth.

Congressional hearings and criminal trials both involve sworn testimony by witnesses, but that is where the similarities end. In congressional hearings, there is no judge controlling the questions asked by the representatives. In courtrooms, attorneys can’t ask questions that are irrelevant, argumentative, call for speculation or are potentially improper in a hundred other ways. In other words, there are rules and procedures in place to ensure that witness testimony is relevant and reliable information — information germane to the issues at hand. There are no such controls limiting congressional hearings. Accordingly, representatives can ask irrelevant, misleading, politically inflammatory questions designed to distract from, rather than elucidate, the issues at hand.

In this time of bitter partisan fighting and division, questioning of Mueller likely would devolve into a circus. To be sure, questioning of “fact witnesses” (that is, witnesses with first-hand accounts of statements and actions of Trump) would also involve intensely partisan questioning by either side of the aisle. (One need only think back to then-Supreme Court nominee Brett Kavanaugh's confirmation hearings to see an example.) However, the scope of McGahn’s interrogation would be far more limited and, I suggest, relevant to the issue of presidential misconduct, than the scope of the questions that would be put to Mueller. Put another way, there is a far greater opportunity for mischief and misdirection in the questioning of Mueller than in the questioning of fact witnesses.

If Mueller were to testify, rather than ask probative questions about the evidence supporting or undercutting presidential misconduct, it’s easy to imagine Republican representatives asking him questions about everything from Hillary Clinton’s emails to Attorney General William Barr’s unsupported assertion of “deep state” spying on the Trump campaign. Democrats might ask questions beyond what is contained in Mueller’s report (why wasn’t Don Jr. charged for his participation in the Trump Tower meeting; what is contained in the 14 cases and investigations referred to other U.S. attorney’s offices for further work). Mueller would likely refuse to answer such questions. Notably, he said that he will not answer questions beyond what is contained in his report, succinctly stating in his recent public appearance, “the report is my testimony.”

As mentioned above, Mueller did not offer a conclusion on the question of whether Trump obstructed justice. Mueller has said that if the evidence showed Trump did not obstruct justice, he would have noted it. Mueller then said that he cannot say the president did not commit the crime of obstructing justice. This double-negative formulation is as unsatisfying as it is cryptic.

Understandably, the public wants a straightforward, definitive answer to the question, “Does the evidence show the president obstructed justice?” But they won’t get it from Mueller. Mueller has taken the position that if he can’t indict the president, then he won’t offer conclusions about the president’s guilt, because that conclusion cannot be proven or disproven in a court of law. And as the Mueller report indicates, “the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing.” Given that the constitutional process Mueller was referring to is impeachment, Mueller has not so subtly passed the ball to Congress. If Congress thinks Trump is guilty, they can and should act.

To be clear, in a different, more nonpartisan world, testimony from Mueller could be enlightening. However, today, congressional testimony by Mueller is entirely likely to devolve into a partisan food fight. Accordingly, Congress should cut right to the chase and begin presenting the testimony of the actual witnesses so the country can begin to assess for itself whether impeachment is or is not appropriate and necessary.