‘Mueller Time’ won’t be the moment Republicans or Democrats want

Capitol Hill Republicans appear to be scratching their heads about instructions that special counsel Robert Mueller has received from the Department of Justice (DOJ), tightly restricting his congressional testimony, which is scheduled for Wednesday. 

They shouldn’t be. The Trump administration’s legal and political calculations are clear. 

As The Hill reported on Monday, with Mueller’s testimony less than 48 hours away, the Justice Department directed him to confine his testimony strictly to the four corners of his report. Specifically, Associate Deputy Attorney General Bradley Weinsheimer asserted, Mueller is to avoid “discussion about investigative steps or decisions made during your investigation not otherwise described in the public version of your report.”

Clearly, Republican lawmakers allied with the president want to press Mueller not about what is in his report but about matters he excluded — not just from the 448-page tome but, perhaps, from his investigation. 

They do not want to focus on evidence relating to the questions of collusion with Russia and obstruction of the probe, on neither of which Mueller recommended charges against the president. They want to home in on apparent investigative irregularities: Reliance on the unverified Steele dossier for Foreign Intelligence Surveillance Act (FISA) warrants; failure to inform the FISA court that the dossier was a Hillary Clinton campaign opposition research product; misleading the president on his status in the investigation (i.e., telling him that he was not under investigation while trying to make a case on him); the blatant investigative bias shown by texts between FBI officials; intelligence leaks to the media; consultations with Obama administration political officials regarding what information should be shared with President-elect Trump and his transition team, and so on.

Republicans no doubt calculate that this is where President Trump would prefer the spotlight to be, too. So why is Trump’s own Justice Department telling Mueller, in effect, “Do not discuss these matters”? 

There is a simple explanation.

At this point, the Mueller report is a fully known quantity. The degree to which it helps and hurts the president has been fully explored. The public reaction to it has been closely measured: As long as the special counsel did not find evidence of a cyber-espionage conspiracy between the Trump campaign and Russia aimed at stealing the 2016 election — the collusion narrative peddled to the public by the media-Democratic complex for more than two years — Americans simply are not that interested in a new obstruction narrative. The public is ready to move on.

If Mueller confines his testimony to the report — which is exactly what Mueller has said he wants to do — nothing will change. In his May 29 press statement, Mueller said that, in our constitutional system, primary responsibility for addressing alleged presidential misconduct is assigned to Congress. Democratic leaders on Capitol Hill have no appetite for impeachment proceedings that the public opposes. 

For all the anticipation of it, then, Mueller’s testimony will be a bust. After all, if Mueller sticks to his report, what good does he do Democrats? They don’t need him simply to read the parts of the report they’d like to highlight — they can do that themselves. 

Moreover, Mueller obviously was not going to help Republicans make the case that the investigation was abusive. They could ask about the Steele dossier all day; at best, Mueller was going to decline to respond.

In fact, the Justice Department’s directions to Mueller probably help Trump’s allies. If he were just using his own judgment, Mueller might selectively try to refute some Republican allegations of investigative abuse. But now he has been told not to address such questions at all since they are not covered in his report. Republicans, then, can put the best narrative spin on their inquiries — loaded leading questions that will seem more like speeches — and Mueller will offer no comment, leaving them unrebutted. 

There is really only one way President Trump could be hurt by Mueller’s testimony. In Mueller’s report, as amplified in his May 29 press statement, the special counsel said that Justice Department guidance prohibiting the indictment of a sitting president caused him not merely to decline to recommend obstruction charges against Trump but also to decline even to consider such charges. Consequently, the report’s bottom line is this: Mueller has not considered, much less found, that the incidents described in Volume II rise to the level of an obstruction offense.

Democrats want to push Mueller on this. They want him to say that, upon careful consideration of the evidence his staff assembled, he would have recommended an indictment of the president if it were not for the DOJ guidance.

By instructing Mueller that he is not permitted to go beyond the report in his testimony — in particular, that he is not permitted to address investigative decisions that were or might have been made but that are not covered in the report — the Justice Department has thus foreclosed the Democrats’ key line of inquiry.

The Justice Department has sound reasons for this, some of which the Weinsheimer letter articulates: protection of privileged matters, as well as the DOJ’s usual reliance on the confidentiality of its investigations and deliberative processes.  

Left unstated in the letter, but likely more important, is that the Justice Department, under Attorney General William Barr, has a narrower interpretation of federal obstruction law than the expansive construction adopted by Mueller’s staff. Because Mueller did not recommend obstruction charges, that difference was neither confronted nor resolved. Clearly, the Justice Department should not allow Mueller, in the role of a subordinate DOJ lawyer, to give congressional testimony espousing a view of obstruction law that the Justice Department itself rejects. If Mueller sticks to his report, that knotty issue need not be addressed — at least for now.

Republicans, meanwhile, will get their chance to pursue questions about investigative abuse eventually. DOJ Inspector General Michael Horowitz will soon release his report dealing specifically with that issue. The time for addressing the manner in which the probe was conducted is coming. It is just not going to be “Mueller Time.”

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. His new book, “Ball of Collusion,” will be published by Encounter Books on Aug. 13 and is available for pre-order. Follow him on Twitter @AndrewCMcCarthy.