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Hostile witness or Democrats’ hero? Mueller’s past turns before Congress offer important clues

July 21 at 11:28 AM

Behind the square jaw, deadeye stare and Marine Corps growl, former special counsel Robert S. Mueller III does have a soft spot when it comes to answering tough questions in congressional hearings.

On Wednesday, when he delivers long-awaited testimony about his investigation into President Trump and Russian interference in the 2016 election, Democrats are hoping to coax from him the kind of dramatic moments that could galvanize public opinion against the president. Republicans, meanwhile, are eager to elicit testimony that shows the investigation was biased from its inception.

Those who know him best are skeptical he will meet either side’s expectations.

“For anybody hoping he’s going to provide new information or evidence against the president, I think many people will be very disappointed,” said John Pistole, who served as Mueller’s deputy for years when he was FBI director. “And then on the other side of the aisle, some may be disappointed to find out that he’s not a demagogue of the left.”

Mueller is set to appear before the House Judiciary Committee for three hours — a hearing that aims to focus on the question of whether the president obstructed justice. Mueller will also spend two hours before the House Intelligence Committee answering questions about Russia’s election interference.


Current and former law enforcement officials worry that Robert S. Mueller III, seen here on Capitol Hill in 2013, will encounter a hyperpartisan environment when he testifies this week, one that is far more confrontational than any hearing he participated in during his time at the FBI. (J. Scott Applewhite/AP)

The back-to-back hearings will probably be the last public word from the special prosecutor, whose two-year tenure was marked by long silences and fevered speculation about his work. Mueller’s past, particularly his congressional appearances during his 12 years as FBI director, offer a number of clues about how he will approach Wednesday’s task.

Does Mueller like appearing before Congress?

“Oh no, no, no, no, no,” answered Pistole, now the president of Anderson University, who said he often appeared in Mueller’s place at hearings. In May, Mueller gave a brief public statement in which he said he did not want to appear before Congress. “The report is my testimony,” Mueller insisted then. The House Judiciary Committee subpoenaed him anyway.

Pistole said he expects Mueller to be “as unresponsive as possible, while telling the truth. I think his first approach will be, ‘Read the report and form your own conclusions.’ He’s no longer a government employee, and he can tell them to pound sand, not that he would use those words.”

A central question for Mueller will be whether he, as a prosecutor, would have filed charges against Trump were he not the president. Under long-standing Justice Department policy, a sitting president cannot be indicted, and Mueller’s team interpreted that to mean they could not even consider whether Trump had committed a crime. To date, he has been steadfast in refusing to offer clarity on this point — arguably the most opaque and hotly debated portion of his 448-page report.

Mueller also probably will face questions about his interactions with Attorney General William P. Barr. Democrats have accused Barr of mischaracterizing Mueller’s findings in the weeks before the report’s public release — a political move, they say, that blunted its impact.

At one point, Mueller wrote to Barr complaining that the attorney general’s statements had created confusion among the public about the investigation’s results, but Barr has tried to play down the disagreement, calling Mueller’s letter “a bit snippy.”

Mueller is a veteran of congressional testimony, but past hearings were marked by his polite reticence and lawmakers’ deference to his judgment. He often would try to say as little as possible. But some lawmakers realized that, when pressed, he would sometimes give in.

Exchanges during a 2007 House Judiciary Committee hearing are telling. At the time, lawmakers were demanding more detail about a confrontation years earlier inside the Bush administration between senior White House officials and then-Deputy Attorney General James B. Comey, who years later succeeded Mueller atop the FBI. The fight, over a controversial warrantless wiretapping program run by the National Security Agency, nearly led to the resignations of Comey and Mueller.

At the time, Mueller had served as FBI director for nearly six years. He had led the FBI through its investigation of the 9/11 terrorist attacks, and transformed the law enforcement agency into one focused primarily on counterterrorism. Yet many of the lawmakers who had oversight of the FBI still mispronounced his name.

One lawmaker, Rep. Stephen I. Cohen (D-Tenn.), asked Mueller to explain a conversation he had had with former attorney general John Ashcroft about the wiretapping program, at a time when Justice Department officials were raising concerns about its legality.

As he had up until that point in the hearing, Mueller declined, saying, “I resist getting into the specifics of conversations I have because I do think the attorney general then, the attorney general now, and others are entitled to keep those conversations between themselves,” Mueller said.

Cohen persisted.

“I’m asking you to tell us what the conversation was,” the lawmaker said. “I don’t think there’s a privilege.”

Mueller relented.

“The discussion was that there had been a prior discussion about an NSA program and that the attorney general deferred to Mr. Comey as the person to make whatever decision was to be made,” he said. Mueller went on to describe the FBI’s concerns about how to proceed with a program that senior Justice Department officials considered legally problematic.

But when lawmakers sought a direct admission from Mueller that he had threatened to resign over the issue, the director retreated.

“I don’t believe it’s appropriate for me to get into conversations I’ve had with principals on that issue,” Mueller said.

“I don’t want a conversation,” Cohen said, insisting he wanted to know Mueller’s “state of mind.”

Mueller replied: “To the extent that I follow through on the state of mind, then it is a conversation.”

By seeming to contradict prior testimony from then-Attorney General Alberto Gonzales that the warrantless wiretapping program had been the subject of the discussion, Mueller had said a great deal. Weeks after Mueller’s testimony, Gonzales announced his resignation.

Some close to Mueller said that this long-ago incident encapsulates his approach to congressional hearings — a desire to say as little as possible, but also a begrudging willingness, when pressed, to try to give lawmakers enough of an answer to make informed decisions.

Privately, though, current and former law enforcement officials have expressed frustration that lawmakers are making Mueller testify at all. They contend Mueller’s work should have ended when he submitted his report. If members of Congress want to further explore the president’s conduct, those current and former officials argue, they should call the witnesses to that conduct, not the prosecutor.

And they also worry that Mueller is stepping into a hyperpartisan horror show, one that is far more toxic and confrontational than any hearing he participated in during his time at the FBI.

During the hearing in 2007, the toughest questions came from a Texas Republican, Rep. Louie Gohmert, who questioned Mueller’s management decisions but also told him, “I know you care every bit as deeply about the safety and future of our country as I do,” and thanked him for helping them have “a better relationship.”

Six years later, at a different hearing, Gohmert was far more critical, declaring the FBI had not done enough to question members of a Boston mosque before the 2013 marathon bombing.

“According to the Russians, there’s a great deal more that could have been done,” Gohmert angrily told Mueller. “You didn’t even bother to check about the mosques.”

Mueller denied that was true, but Gohmert cut him off.

“May I finish?” Mueller snapped, before saying that FBI agents had, in fact, talked to people at the mosque in question before the attack.

Current and former law enforcement officials are wary of what they expect will be attacks on Mueller from Republicans eager to defend Trump.

Republicans have said they plan to challenge the fairness of the Mueller investigation and grill the special counsel about anti-Trump text messages exchanged between two senior FBI officials who once worked on Mueller’s team.

“This may be the first time he’s ever gone into a hearing where he’s not treated by both sides of the aisle as a credible, nonpartisan figure,” said Matthew Miller, a former Justice Department spokesman during the Obama administration. “I assume he will handle it the same way, but there is some evidence that if the Republicans treat him the way they have treated other figures from the Justice Department the last couple years, that he won’t stand for it.”

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