WASHINGTON — When former special counsel Robert Mueller testifies on Wednesday, many House Democrats hope it will be the moment of reckoning they expected from the initial report itself.
When Mueller first dropped his report in April, it didn’t have the type of impact Democrats wanted. It didn’t do much to sway public opinion. And supporters of President Donald Trump who heard Mueller speak still thought the report cleared him.
Much of that is because Attorney General William Barr had laid the groundwork for Trump, creating a narrative that the report had been overblown all along with the mantra of “no collusion, no obstruction.” But it’s also because Mueller himself has refused to tell lawmakers how to do their job.
Instead of saying the president committed crimes and should be impeached, Mueller’s report suggested that the president may have committed crimes and that it’s not up to the U.S. Justice Department to accuse a president of wrongdoing.
“The Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing,” Mueller said in May, without uttering the word “impeachment.”
Mueller has said that if he had to testify, he would reiterate what’s already in the report. But Democrats are hoping this time will somehow be different.
Rep. Gerry Connolly (D-Va.), who is still considering whether to support an impeachment inquiry, said Mueller just explaining his findings on camera may make impeachment more popular.
“Simply telling the narrative of the report itself will come as news to most Americans, because most Americans understandably have not read a 408 page report,” Connolly told HuffPost. “And so when they hear the details, just even if he reads the report, it is going to be new information ― and devastating information ― about this president.”
While Connolly said he isn’t holding his breath for any new information, Democrats partly have themselves to blame for Trump evading the ramifications of what’s already been released. Democratic leadership quickly developed the talking point that members needed to see the underlying evidence in the report and hear from Mueller before making a judgment about impeachment.
But that line also meant Democrats hadn’t already seen enough to move forward. They downplayed the evidence that was in the report themselves, when in reality there was plenty of damning evidence released in Mueller’s report.
That’s why Mueller’s testimony could be a do-over. It’s an opportunity for fence-sitting Democrats to acknowledge what Trump has done, and it’s an opportunity for Democrats to finally correct the narrative that Trump was somehow cleared of wrongdoing.
The most important thing for this hearing, according to Judiciary member Pramila Jayapal (D-Wash.), is for Mueller to just reiterate what he found.
“That is really, really critical, because, like I said, people have been lied to and misled,” Jayapal told HuffPost.
In response to whether Democrats would try to get Mueller to make conclusions that his report specifically avoided — like, for instance, whether Trump would have been charged with obstruction of justice if he wasn’t the president — Jayapal said Democrats might attempt to ask him some of those questions.
“Whether or not we get an answer, I don’t know,” she said.
Democrats are, of course, hoping Mueller will make the conclusions he has painstakingly avoided. But they’re also realistic that he probably won’t. Instead, they said, their No. 1 goal is to just get Mueller to talk about the findings of his report.
In the report, Mueller laid out 10 possible cases in which Trump may have obstructed justice. Detailing some of those most damning instances — like when Trump tried to fire Mueller and then instructed then-White House counsel Don McGahn to lie about it — could pack the punch of a viral sound bite and could be what shakes Democratic lawmakers from their impeachment torpor.
There are also plenty of examples of Russian associates offering the Trump campaign help. Mueller concluded in his report that, “in some instances, the campaign was receptive to the offer, while in other instances, campaign officials shied away.”
Democrats have the ability to seriously undermine the “no collusion” narrative. In the report, Mueller noted that “collusion” was not even something they specifically looked at, opting instead for the legal definition of “conspiracy.”
But Democrats have a strategic choice they need to make: Do they go after the Russian contacts component laid out in the first part of the report, or do they focus on the perhaps more solid evidence that Trump obstructed justice?
The answer will likely depend on the Democratic member questioning the former FBI chief, but the two committees interviewing Mueller have a limited amount of time — and Republicans seem intent on trying to undermine every word Mueller utters, potentially also drawing out some sound bites where he casts doubt on the Russian collusion narrative. Each lawmaker has to decide how to use his or her limited time questioning Mueller.
“Just even if he reads the report, it is going to be new information — and devastating information — about this president.”
Regardless of whether Democrats pursue a Russia-related line of questioning or stick to obstruction of justice, they will certainly press Mueller on whether he would have charged Trump with a crime if he wasn’t president.
So far, Mueller has been very careful to deprive them of that talking point. Under his interpretation of legal opinions by the Justice Department’s Office of Legal Counsel and DOJ guidelines, it would be fundamentally unfair to say Trump would be charged with a crime if he wasn’t president, because without a court proceeding Trump would have no formal venue to defend himself.
“[A] prosecutor’s judgement that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator,” Mueller’s team wrote.
At his press conference in May, Mueller said his report was his testimony, and that he hoped and expected it would be “the only time that I will speak about this matter.”
Previous House Judiciary Committee hearings on the Mueller report, featuring area experts but no fact witnesses, have been sparsely attended. Wednesday’s hearing will be packed, and the testimony will certainly provide plenty of fodder for cable news.
But the hearing comes just two days before House Democrats hit the exits for a six-week recess. Mueller was initially supposed to testify last week, but the Judiciary Committee agreed to push it back in order to negotiate for more questioning time.
With the recess just days away, many lawmakers who have delayed making a judgment about opening an impeachment inquiry will be able to get out of the Capitol without having to comment on the hearing.
The recess cuts two ways, however. Lawmakers may also hear from their constituents over the August break and come back in September ready to force the issue. Those sorts of movements have happened in recent Augusts past. In 2013, then-Speaker John Boehner sensed that his members were willing to shut down government over Obamacare, and when they came back from the break, he followed suit. In 2015, Boehner sensed that Republicans were ready to throw him out of the speakership, and by the end of September, he had announced that he was stepping down.
In both cases, constituent feedback over August was crucial to the sea change in Congress.
Mueller’s testimony on Wednesday could be the beginning of another tide. But if Mueller sticks to his script and Democrats fail to capitalize on him finally laying out the findings of his report, it could also be another week that washes away.